[Cite as In re Strain, 2010-Ohio-6716.]


                                              Court of Claims of Ohio
                                                  Victims of Crime Division
                                                                         The Ohio Judicial Center
                                                               65 South Front Street, Fourth Floor
                                                                            Columbus, OH 43215
                                                                    614.387.9860 or 1.800.824.8263
                                                                               www.cco.state.oh.us



IN RE: ROMENA I. STRAIN


JAMES P. STRAIN

            Applicant


 Case No. V2009-40277

Commissioners:
Randi M. Ostry
Elizabeth Luper Schuster

OPINION OF A TWO-
COMMISSIONER PANEL

          {1}The appeal presently before this panel involves the death of Romena Strain,
the wife of the applicant James Strain. After thoughtful review of the case file and
careful consideration of the testimony presented by the parties, the majority of this panel
finds that the applicant has proven, by a preponderance of the evidence, that Romena
Strain’s death was the result of criminally injurious conduct. Accordingly, the decision
of the Attorney General is reversed.


I. Procedural History
          {2}On June 10, 2008, the applicant, James Strain, filed a compensation
application as the result of injuries sustained by Romena Strain on July 13, 2006. On
April 5, 2007, Ms. Strain died as the result of the injuries sustained on July 13, 2006.
On December 8, 2008, the Attorney General issued a finding of fact and decision
determining that the fatal injuries Romena Strain suffered on July 13, 2006, which
resulted in her death, were not the result of criminally injurious conduct. On January 2,
2009, the applicant submitted a request for reconsideration. On March 9, 2009, the
Attorney General rendered a Final Decision finding no reason to modify its initial
Case No. V2009-40277                       - 2-                                 ORDER


decision. On April 6, 2009, the applicant filed a notice of appeal from the March 9,
2009 Final Decision of the Attorney General. The appeal hearing was held by this
panel of three commissioners on January 21, 2010 at 10:00 A.M.


II. Applicant’s Position
         {3}The applicant, James Strain, and his attorney Alan Lehenbauer attended the
hearing, while Assistant Attorney General Tyler Brown represented the state of Ohio.
         {4}The applicant related that Romena Strain was a victim of criminally injurious
conduct as defined by R.C. 2743.51(C)(1).          The applicant asserts based upon
circumstantial evidence, a review of the scene of the incident, and the gunshot wound
sustained by Ms. Strain, the applicant has met the burden of proof necessary to
establish criminally injurious conduct. The only other explanation for her injuries would
have been attempted suicide, and no evidence has been submitted to conclude that she
possessed suicidal tendencies. Finally, there was no evidence that her injuries were
caused by an accident.      Accordingly, the applicant asserts the Attorney General’s
decision should be reversed.


III. Attorney General’s Position
         {5}Based on the investigation conducted by the Lucas County Sheriff’s Office
and the Bureau of Criminal Identification and Investigation (BCI), there is insufficient
evidence to prove that Ms. Strain’s injuries and subsequent death were the result of
criminally injurious conduct. Therefore, the Attorney General requests that its decision
be affirmed.


IV. Witness Testimony and Argument
         {6}The applicant called John Pezzino, a private investigator, who was retained
by the applicant to investigate the incident of July 13, 2006. The applicant presented
Mr. Pezzino with a copy of his report, Applicant’s Exhibit 1. Mr. Pezzino recounted that
Case No. V2009-40277                        - 2-                                 ORDER


he met with Lucas County Sheriff’s deputies and investigators, along with Strain family
members; that he physically inspected the scene; canvassed neighbors; reviewed
police reports; and obtained an affidavit from the initial responding officer. Mr. Pezzino
summarized an affidavit of Joseph Gorney-Siminetti, the Lucas County Sheriff’s deputy
who initially responded to the scene, as finding Ms. Strain lying on her stomach with a
hand gun near her with spent cartridges near her body. She related to the deputy that
intruders were on her property and she was defending herself.
            {7}Mr. Pezzino stated the house in which Ms. Strain was shot was located off
the road in a rural location near the borders of Lucas and Fulton Counties.          The
residence was not visible from the road. Mr. Pezzino related based upon the initial
Lucas County Sheriff’s report which characterized the incident as an assault and the
subsequent BCI report which upgraded the incident to an aggravated assault, there was
no question in his mind that Ms. Strain was a victim of crime.
            {8}Mr. Pezzino revealed during the course of his investigation he became
aware of an individual who lived in the area, Tyler Arnold, and who had a history of
misdemeanor and felony arrests. When this individual’s mother was questioned by
Detective Stooksbury, she stated her son was at a friend’s residence on the night of the
incident.     However, a review of the Lucas County Sheriff’s file revealed that Tyler
Arnold’s mother had filed a runaway juvenile report regarding him on the night in
question.
            {9}After review of the coroner’s report, Mr. Pezzino stated the coroner James
Patrick, listed the cause of the gunshot wound as “undetermined.” However, he stated
that soot and bone fragment at the site of the injury was consistent with a contact or
near contact gunshot wound to the back of the neck. No ballistic report was compiled,
and no forensic examination was performed on either the weapon found at the scene
or the bullet fragments contained in Ms. Strain’s neck.
            {10}Mr. Pezzino testified that based upon the lack of evidence concerning any
depression issues suffered by Ms. Strain and the location of the gunshot wound to the
Case No. V2009-40277                       - 2-                                  ORDER


back of the neck, combined with the fact that the investigation was classified by law
enforcement as an ongoing criminal investigation he did not believe that Ms. Strain was
attempting to commit suicide at the time she was injured. Also, he determined that it
would be highly unlikely that the shooting was accidental, in that the soot located at the
site of the gunshot wound would not be consistent with a ricocheting bullet.
        {11}Finally, it was Mr. Pezzino’s opinion that the police and forensic
investigation was inadequate.
        {12}Upon cross-examination, Mr. Pezzino revealed that he was paid $1,500.00
for his investigation and will be paid $125.00 per hour for court appearances. The
Attorney General questioned the witness relative to Tyler Arnold’s connection to the
incident. Although 12 police reports were presented concerning criminal activities Tyler
Arnold had engaged in, Mr. Pezzino was unaware of the final disposition of those cases.
Mr. Pezzino asserted based on this history of bad acts Mr. Arnold may or may not have
been involved in some incident at the Strain residence on the night in question.
However, Mr. Pezzino believed based upon review of the search warrant signed by
Judge Gary Byers and the police and BCI reports that Ms. Strain was in fear for her
safety on the night in question.      Whereupon, the testimony of Mr. Pezzino was
concluded.
        {13}The applicant called Jodi Lynn Perry, the decedent’s daughter, to testify.
Ms. Perry related that the first contact she had with her mother on the day of the
incident was at St. Luke’s Hospital. Later, when her mother was transferred to St.
Vincent Hospital, it was discovered that she had a gunshot wound in the back of her
neck.   It was at that time that the police began questioning Ms. Perry about any
enemies her mother had and gave her mother an alias, for her own protection while she
remained hospitalized. Her mother was never able to relate to her what transpired at
the time she was injured.
Case No. V2009-40277                         - 2-                                   ORDER


         {14}Ms. Perry recounted that she returned to the scene of the shooting the next
day and observed her father’s recliner and a fan had been overturned. Her mother’s
open purse was lying on the floor of the hallway, near where her mother’s body had
been found. Ms. Perry found that very unusual since her mother did not walk around her
home at night in her pajamas with her purse. It was unknown if any contents in her
purse were missing.
         {15}Ms. Perry recollected that her mother showed no signs of depression prior
to her injury and stated that she did not believe her mother’s injuries were self-inflicted.
         {16}Upon cross-examination, Ms. Perry related that Detective Atkins of the
Lucas County Sheriff’s Department told her he was disgusted with the mishandling of
the initial incident scene and was unhappy with the follow-up investigation.
         {17}Upon questioning from the panel, Ms. Perry testified there was blood on her
mother’s shirt. Ms. Perry stated that nothing in the home was missing, however, there
was no money in her purse and it could not be determined if any money was missing.
The bullet hole was located on the inside of the door and from the angle of the
indentation it appeared the door would have been partially open when it was struck.
Whereupon, the testimony of Ms. Perry was concluded.
         {18}Finally, the applicant, James Strain, was called to testify.         Mr. Strain
recounted on the day of the incident he received a call from his daughter Ms. Perry
stating she was unsuccessful in contacting her mother. Mr. Strain who was in Alabama
on business, was also unsuccessful. Consequently, he telephoned his mother, Lila
Strain, who lives in the area, to check on his wife Romena Strain. He received a return
call from his mother revealing she had found Romena on the floor with the residence in
disarray. Accordingly, he immediately left the job site and drove home.


         {19}Upon his return home at approximately 6:30 A.M., the next morning he was
met by a deputy sheriff. The deputy proceeded to question him for approximately 5
hours. He had the impression that he was being treated as a criminal suspect. He
Case No. V2009-40277                        - 2-                                ORDER


was not allowed to enter the premises, until he was cleared as a suspect when his alibi
that he was in Alabama had been verified.
        {20}He spoke to his wife while she was at St. Vincent Hospital, however, she
could not recall what happened to her. Her clothing was thrown away at St. Luke’s
Hospital.
        {21}When he initially entered his residence he was surprised by the overturned
furniture and the bullet in the door.    However, no DNA tests were taken and no
fingerprints were recovered from the gun or anything else at the scene.
        {22}The gun had been stored in the closet in their bedroom. The gun had not
been used for 15 to 20 years. Mr. Strain was very surprised that the gun was out of its
hidden location.
        {23}The applicant was shown Applicant’s Exhibit 2, a statement of Lila Strain,
the applicant’s mother. The statement contains a description of the premises upon her
arrival, noting the front door was open approximately 18 inches.
        {24}Upon questioning by the panel, Mr. Strain opined that Romena Strain would
not have retrieved the gun unless she feared for her life. Although his wife had no
specific recollection of the events surrounding the incident, she expressed the feeling
that there may have been an intruder on the premises.         Mr. Strain stated that he
believed the bullet fragments were removed from his wife’s neck, but no tests were
performed on these fragments.       Whereupon, the testimony of the applicant was
concluded.
        {25}The applicant moved for submission of Applicant’s Exhibit 1 and 2. The
Attorney General expressed no objection.


        {26}The Attorney General called Detective Mark Woodruff of the Lucas County
Sheriff’s Department to testify via telephone. Detective Woodruff stated he became
involved in the investigation of this case shortly after the department was notified that
Ms. Strain had sustained an injury.     Initially, it was unknown what had happened.
Case No. V2009-40277                        - 2-                                 ORDER


Although Gorney-Siminetti of his office initially responded to the scene, his only role was
to secure the gun found at the scene. Gorney-Siminetti played no other role in the
investigation of this matter. Detective Woodruff stated any statement Gorney-Siminetti
provided to the private investigator does not accurately reflect the investigation
conducted by the Lucas County Sheriff’s Department.
            {27}Detective Woodruff stated he interviewed Ms. Strain in the hospital. He
stated she recalled hearing noises outside the residence, and retrieving a firearm, but
had no recollection beyond that point.
            {28}Detective Woodruff related that Mr. Strain was considered a suspect as
would anyone who had access to the residence but was not at home when the incident
occurred.      Mr. Strain was cleared as a suspect after his alibi had been verified.
Detective Woodruff obtained a search warrant to search the residence. Upon entering
the residence there was no evidence of forced entry, a book was lying on the floor a
chair an overturned, a dog was inside the residence and fecal waste was present, but
no items were missing.        Tyler Arnold became a suspect during the investigation
because he was a known troublemaker in the area.               The sheriff’s department
investigated Tyler Arnold and was satisfied with his alibi.
            {29}Because the family did not agree with the conclusions reached by the
Lucas County Sheriff’s Department, BCI was called in this case .                BCI took
measurements of the bullet hole in the door and generally observed the scene. BCI did
not conclude this was the scene of a burglary. Detective Woodruff concluded that the
gunshot wound was self-inflicted accidentally from a ricochet. The case is classified as
inactive.     Finally, he was unaware of any disparaging remarks Lieutenant Atkinson
might have made about the investigation.
            {30}Upon cross-examination, Detective Woodruff stated that to obtain a search
warrant he was required to swear that there was possible knowledge that a crime
occurred.      He conceded that probable cause was necessary to obtain the search
Case No. V2009-40277                         - 2-                               ORDER


warrant.    The judge issued the search warrant based upon evidence presented by
Detective Woodruff and Detective Stooksbury.
           {31}Detective Woodruff related that the coroner chose not to remove the bullet
fragments from Ms. Strain’s body so no tests could be performed. The detective stated
while he was aware that the door to the Strain’s residence was open, he did not find that
fact unusual.     Detective Woodruff conceded that he never discussed Ms. Strain’s
condition with any doctors who were involved in her rehabilitation in Michigan; that he
never tested the weapon to determine it was operable, or whether it was fired by Ms.
Strain; that he never fingerprinted any item at the scene; that he never read the
coroner’s report; and that there was no evidence that the gunshot wound was
intentionally self-inflicted.   Detective Woodruff admitted that the ricochet theory was
speculation.
           {32}Upon questioning by the panel, Detective Woodruff testified the ricochet
point in question could never be determined.          There was no physical evidence
discovered at the scene to verify a ricochet point.        Whereupon, the testimony of
Detective Woodruff was concluded.
           {33}Finally, applicant concluded by stating after a review of all the evidence
presented this panel should reach the conclusion that it has been proven, by a
preponderance of the evidence, that Romena Strain was a victim of criminally injurious
conduct.      Initially, the police believed a crime had been committed when they
presented probable cause evidence to the judge to obtain a search warrant.
Furthermore, the ricochet theory cannot be substantiated when compared to the
findings of the coroner that the bullet wound was sustained at close range. Therefore,
the Attorney General’s decision should be reversed.
           {34}The Attorney General asserted simply because a search warrant has been
obtained does not mean that a crime has been committed. The Attorney General cited
In re Warren, V2008-30014tc (9-5-08), for the proposition that the uncorroborated
statement of the applicant does not constitute sufficient proof, by a preponderance of
Case No. V2009-40277                        - 2-                                  ORDER


the evidence, to establish criminally injurious conduct occurred. In this case, the facts
do not explain what actually happened.         Without specific fact about what actually
happened, the panel should defer to the opinion of law enforcement that no crime was
committed.     Consequently, no weight should be given to the private investigator’s
report.   Therefore, the panel should affirm the decision of the Attorney General.
Whereupon, the hearing was concluded.


V. Controlling Law and Precedent
          {35}R.C. 2743.51(C)(1) in pertinent part states:
          “(C) ‘Criminally injurious conduct’ means one of the following:
          “(1) For the purposes of any person described in division (A)(1) of this section,
          any conduct that occurs or is attempted in this state; poses a substantial threat
          of personal injury or death; and is punishable by fine, imprisonment, or death,
          or would be so punishable but for the fact that the person engaging in the
          conduct lacked capacity to commit the crime under the laws of this state.”


          {36} “In order to establish that an applicant is a victim of criminally injurious
conduct, the applicant has the burden to prove by a preponderance of the evidence that
1) the criminal conduct occurred or was attempted; 2) the criminal conduct posed a
substantial risk of personal injury or death, and 3) the criminal conduct was punishable
by fine, imprisonment or death.” In re Gradison, V78-3385jud (1-13-82). In re Warren,
V2008-30014tc (9-5-08).
          {37}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.”
          {38}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
Case No. V2009-40277                         - 2-                                    ORDER


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.”
         {39}Circumstantial evidence may be considered in determining whether an
applicant qualifies as a victim of criminally injurious conduct.             In re Williams,
V99-65291tc (10-25-00).


VI. Panel’s Determination
         {40}From a review of the claim file and with careful consideration of the
testimony of the witnesses and the arguments by counsel at the hearing, a majority of
the panel finds that the applicant has met his burden of proof and Romena Strain was a
victim of criminally injurious conduct.      We reach our conclusion based upon the
evidence at the crime scene, the police investigation, and the coroner’s report. The
unrefuted affidavit evidence of Lila Strain, the applicant’s mother reveals “the door [was]
open about 18 inches. As I entered I found the recliner chair tipped forward and an
end table tipped over on its side. There was a large plant and some other smaller
items knocked on the floor also.” The police report filed by Officer Gorney-Siminetti
revealed there was a .22 caliber revolver with five spent shells and one unspent shell
found and secured by EMS personnel, that was located near Ms. Strain’s body. Also,
the officer observed a bloody book lying beside her body. After a search warrant was
executed for the Strain residence, officers found Romena’s purse lying on the floor near
the bathroom. The applicant’s daughter Jodi Lynn Perry testified the purse was open.
BCI investigator Ed Biederstedt, in his written report stated: “A small circular hole was
located on the interior side of the metal-clad front door.          A small circular convex
puncture mark visible on the exterior side of the door, although no breakage of the
metal-clad door is noted. The small circular hole on the interior side measured 4 ½
inches from the non-hinged side of the door and 49 11/16 inches from the bottom of the
door. The small circular convex puncture mark on the exterior side measured 5 1/4
Case No. V2009-40277                        - 2-                                   ORDER


inches from the non-hinged side of the door and 49 ½ inches from the bottom of the
door.
         {41}The Lucas County Coroner James Patrick stated: “It is my opinion that
Romena Strain died of intracerebral hemorrhage due to intractable hypertension due to
cervical spinal cord injury with incomplete quadriplegia due to gunshot wound of the
neck.”   He also found:     “skin-scar with soot and bone fragments consistent with
contact or near contact remote gunshot wound.” The gunshot wound was located on
the posterior neck with spinal cord injury at C5-7.
         {42}A careful review of all this evidence indicates that it is more likely than not
that Romena Strain was the victim of criminally injurious conduct. For the purposes of
this program it is not necessary for us to identify a suspect, offender, or motive involved.
The applicant need only satisfy the burden that criminal conduct occurred, that the
conduct posed a substantial threat of personal injury, and that the crime is punishable
by fine, imprisonment, or the death penalty. We believe the applicant sustained his
burden. We find based upon the totality of the evidence and the credibility of the
applicant and his daughter that it has been established a crime scene was present and
Romena Strain was the victim of a crime.
         {43}We find the alternative scenario offered by the Attorney General contrary to
the evidence. The Attorney General urges us to find that Ms. Strain’s injuries were
received by a self-inflicted accidental gunshot wound. According to this version of the
events Ms. Strain discharged a handgun in her home for some undetermined reason,
the bullet struck the door and ricocheted off some unknown object and struck her in the
back of the neck. However, a supplemental crime report filed by Detective Stooksbury
on August 2006 in pertinent part states:
         {44} “On 7-22-06 this officer spoke with Jeff Hibbard and Barry Christy Life
         Squad 9 Hibbard and Christy were the first on the scene at the home of
         Romena Strain when the 911 call came in. They state the following. They
         were meet [sic] at the rode [sic] by the mother in law. When they went in the
Case No. V2009-40277                        - 2-                                   ORDER


        house the front door was unlocked. When they walked in the home they saw a
        head in the hallway they had to walk in some before they saw the head.”
        {45}It appears from this statement that Ms. Strain was not in a direct line from
the door; and coupled with BCI’s inability to find a ricochet point after close inspection of
the home, we are not satisfied as to the physical possibility of such a ricochet.
Furthermore, the coroner’s report clearly states the gunshot wound was consistent with
“contact or near contact remote gunshot wound.”


        {46}Although Romena Strain could never offer an explicit description of what
happened on the night in question, this fact alone should not disprove that she was a
victim of criminally injurious conduct. We believe sufficient evidence exists in the claim
file and by testimony presented to find that the applicant has established criminally
injurious conduct as defined by R.C. 2743.51(C)(1). Therefore, the Attorney General’s
March 9, 2009 decision is reversed.


                                              _______________________________________
                                              RANDI M. OSTRY
                                              Commissioner



                                              _______________________________________
                                              ELIZABETH LUPER SCHUSTER
                                              Commissioner

GREGORY BARWELL, COMMISSIONER, DISSENTING OPINION
        {47}I respectfully dissent. I have had the opportunity to review all the evidence
as have my colleagues, yet I reach a different conclusion. I do not believe it is proper
to construct a scenario which benefits the applicant in this case. The burden of proof
rests solely with the applicant. I do not believe the applicant sustained his burden.
While the majority interprets the evidence to find criminally injurious conduct, I believe
Case No. V2009-40277                       - 2-                                       ORDER


the same evidence could be interpreted in a variety of ways to reach a contrary
conclusion. For example, I find it plausible that the door of the residence was closed
prior to Ms. Strain’s discovery by her mother-in-law. Detective Woodruff testified a dog
was in the residence and feces was present. If the door of the residence was open, the
dog would have went outside to defecate and then returned to the residence.
However, if the dog was enclosed in the residence this would not have been an option.
It is well settled in the law that the party with the burden of proof must produce evidence
which furnishes a reasonable basis for sustaining the claim. If the evidence furnishes a
basis for only a guess, among different possibilities, as to any essential issue in the
case, the burden has not been sustained as to such issue. Landon v. Lee Motors, Inc.
(1954), 161 Ohio St. 82.
        {48}While I sympathize with the applicant for the tragic loss of his wife, I cannot
find that he has sustained his burden of proof. Perhaps we shall never know how the
gunshot wound occurred, and it will remain a mystery.           But speculation is never
adequate to prove criminally injurious conduct and without concrete evidence that points
to criminal conduct of some kind, I believe the Attorney General’s decision should be
affirmed.




                                             _______________________________________
                                             GREGORY P. BARWELL
                                             Presiding Commissioner




                                              Court of Claims of Ohio
                                                  Victims of Crime Division
                                                                         The Ohio Judicial Center
                                                               65 South Front Street, Fourth Floor
                                                                            Columbus, OH 43215
                                                                    614.387.9860 or 1.800.824.8263
Case No. V2009-40277                       - 2-                                  ORDER


                                                                          www.cco.state.oh.us


IN RE: ROMENA I. STRAIN


JAMES P. STRAIN

           Applicant


 Case No. V2009-40277

Commissioners:
Randi M. Ostry
Elizabeth Luper Schuster

ORDER OF A TWO-
COMMISSIONER PANEL

        IT IS THEREFORE ORDERED THAT
        {49}1) The Applicant’s Exhibits 1 and 2 are admitted into evidence;
        {50}2) The March 9, 2009 decision of the Attorney General is REVERSED and
judgment is rendered in favor of the applicant;
        {51}3) This claim is remanded to the Attorney General for total economic loss
calculations and decision;
        {52}4) 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;


        {53}5) Costs are assumed by the court of claims victims of crime fund.
Case No. V2009-40277                                           - 2-                            ORDER




                                                                _______________________________________
                                                                RANDI M. OSTRY
                                                                Commissioner



                                                                _______________________________________
                                                                ELIZABETH LUPER SCHUSTER
                                                                Commissioner

ID #I:\VICTIMS\2009\40277\4-22-10 panel decision.wpd\DRB-tad
        A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Lucas County Prosecuting Attorney and to:
Filed 9-23-10
Jr. Vol. 2276, Pgs. 173-174
Sent to S.C. Reporter 10-11-11
