[Cite as In re Dembie, 2012-Ohio-4851.]


                                                 Court of Claims of Ohio
                                                    Victims of Crime Division
                                                                           The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                      614.387.9800 or 1.800.824.8263
                                                                                 www.cco.state.oh.us



IN RE:     HOLLY M. DEMBIE

DIEDRE ASHMUN

CHERYL L. FOLDES

            Applicants


Case No. V2012-70131

Commissioners:
Susan G. Sheridan, Presiding
William L. Byers IV
E. Joel Wesp

ORDER OF A THREE-
COMMISSIONER PANEL

{¶1} On October 6, 2011, the applicants filed a compensation application as the result
of the murder of Holly Dembie which occurred on August 11, 2011. On January 24,
2012, the Attorney General issued a finding of fact and decision determining that the
applicants met the necessary jurisdictional requirements to qualify for an award of
reparations.      Applicant, Diedre Ashmun, was granted an award in the amount of
$7,500.00 which represented the maximum award for funeral expense reimbursement
pursuant to R.C. 2743.51(N)(1).           Applicant’s, Cheryl Foldes, claim for counseling
expenses pursuant to R.C. 2743.51(F)(2) was denied since Ms. Foldes did not qualify
as an immediate family member pursuant to R.C. 2743.51(W). The Attorney General
was unable to calculate Ms. Foldes’ claim for work loss to attend criminal proceedings.
Applicant’s Foldes claim for crime scene cleanup expenses was denied because she
failed to submit supporting documentation to prove she suffered this loss.                Finally,
claims for dependent’s economic loss and dependent’s replacement services loss filed
on behalf of the decedent’s minor child were denied since the child was receiving
Case No. V2012-70131                          - 2 -                              ORDER


benefits from both Dearborn National Insurance and School Employees Retirement
System, and no evidence was presented to prove dependent’s economic loss or
dependent’s replacement services loss exceeded the benefits already received from
these readily available collateral sources.
{¶2} On February 8, 2012, applicant, Cheryl Foldes, submitted a request for
reconsideration. Applicant submitted an itemized list of cleaning supplies used to clean
the crime scene.     On February 24, 2012, the Attorney General rendered a Final
Decision granting applicant, Cheryl Foldes, an award for $43.70, which represented
crime scene cleanup expenses.
{¶3} On March 23, 2012, applicant, Cheryl Foldes, filed a notice of appeal from the
February 24, 2012 Final Decision of the Attorney General. Hence, a hearing was held
before this panel of commissioners on June 20, 2012 at 10:10 a.m.
{¶4} Associate Assistant Attorney General Heidi James appeared on behalf of the state
of Ohio. The applicant, Cheryl Foldes, did not attend the hearing.
{¶5} The Attorney General made a brief statement for the panel’s consideration. The
only issue on appeal is whether the applicant, Cheryl Foldes incurred additional crime
scene cleanup expenses, namely her labor costs of $13.00 per hour for 10 hours of
work.
{¶6} The Attorney General awarded the applicant $43.70 for cleaning supplies used to
clean the crime scene, but asserts that the applicant has not incurred the additional
labor costs she seeks.
{¶7} Upon questioning by the commissioners, the Attorney General conceded that if the
applicant would have hired a third party to do the cleaning that cost would have been
compensated. The Attorney General also conceded that if the applicant had entered
into a written contract with her sister (not a professional crime scene cleaning
technician), the Attorney General would have paid pursuant to the contract.          The
Attorney General reiterated the position that one cannot contract with one’s self.
Case No. V2012-70131                        - 3 -                                    ORDER


{¶8} The Attorney General noted that there is no prohibition with regard to
reimbursement of labor or services performed for the benefit of one’s self, but in the
case at bar the applicant has not provided sufficient evidence to meet her burden of
proof. Whereupon, the hearing was concluded.
{¶9} R.C. 2743.51(T)(2) states:
          a.         “(T) ‘Cost of crime scene cleanup’ means any of the following:
          b.         “(2) Reasonable and necessary costs of cleaning the scene and
               repairing, for the purpose of personal security, property damaged at the
               scene where the criminally injurious conduct occurred, not to exceed
               seven hundred fifty dollars in the aggregate per claim.”
{¶10} Black’s Law Dictionary Sixth Edition (1990) defines preponderance of the
evidence as: “evidence which is of greater weight or more convincing than the evidence
which is offered in opposition to it; that is, evidence which as a whole shows that the
fact sought to be proved is more probable than not.”
{¶11} Black’s Law Dictionary Sixth Edition (1990) defines burden of proof as: “the
necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised
between the parties in a cause. The obligation of a party to establish by evidence a
requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”
{¶12} From review of the case file and upon full and careful consideration given to the
argument of the Attorney General, we find the applicant has failed to prove, by a
preponderance of the evidence, that she incurred additional crime scene cleanup
expenses.
{¶13} However, we do not accept the argument of the Attorney General that economic
loss may only be incurred if an applicant is legally obligated to pay a third person: to do
so would ignore a long line of cases starting with In re Mitchell, V78-3169sc (8-8-81); In
re Fritzpatrick, V80-37046sc (5-12-82); In re Amos, V82-46107sc (7-8-83); In re Visnich,
V81-52570sc (6-23-83) to name a few. While those cases were decided pursuant to
R.C. 2743.51(J), dependent’s replacement services loss, they stand for the proposition
Case No. V2012-70131                       - 4 -                                   ORDER


that an award can be based on a quasi-contract. A person who voluntarily agrees to
care for children not their natural issue, as the result of the death of their parents, could
receive an award for the services rendered based upon the lesser of their wages earned
or what it would cost to hire a third person to care for the children. In this scenario, the
care provider would submit evidence concerning their income and information detailing
the charges care providers in the area would charge for the cost of care to the children
in question. This would allow individuals who could not afford to hire third party care
givers to be compensated for their time in furnishing needed services to children.
{¶14} In the case at bar, if applicant had submitted the cost charged by third parties to
perform the same labor she did and provided her current hourly wage, crime scene
cleanup costs may have been able to be determined, based on a quasi-contractual
formula.
{¶15} However, as stated above, the applicant failed to meet her burden of proof to
establish she incurred crime scene cleanup costs by a preponderance of the evidence.
Therefore, the Final Decision of the Attorney General is affirmed.
{¶16} IT IS THEREFORE ORDERED THAT
{¶17} The February 24, 2012 decision of the Attorney General is AFFIRMED;
{¶18} This claim is DENIED and judgment is rendered for the state of Ohio;
{¶19} This order is entered without prejudice to the applicant’s right to file a
supplemental compensation application, within five years of this order, pursuant to R.C.
2743.68;
{¶20} Costs are assumed by the court of claims victims of crime fund.




                                              _______________________________________
                                              SUSAN G. SHERIDAN
                                              Presiding Commissioner
Case No. V2012-70131                                              - 5 -                                       ORDER




                                                                      _______________________________________
                                                                      WILLIAM L. BYERS IV
                                                                      Commissioner



                                                                      _______________________________________
                                                                      E. JOEL WESP
                                                                      Commissioner

ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\June - Sept 2012\V2012-70131 Dembie.wpd\DRB-tad
        A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Lorain County Prosecuting Attorney and to:

Filed 8-1-12
Jr. Vol. 2283, Pgs. 139-143
Sent to S.C. reporter 10-18-12
