Opinion
2021-00457VI
01-04-2022
IN RE: LUIS A. RODRIGUEZ CHARLENE GRENDZINSKI Applicant
Sent to S.C. Reporter 10/21/22
DECISION OF THE MAGISTRATE
Daniel R. Borchert Magistrate
{¶1} On April 6, 2021, applicant, Charlene Grendzinski, filed a compensation application as the result of the death of her former husband, Luis Rodriguez, which occurred on December 5, 2014. Applicant sought dependent's economic loss for her and the decedent's minor daughter. For the type of crime, she wrote "Pending Investigation."
{¶2} On May 11, 2021, the Attorney General issued a finding of fact and decision denying applicant's claim because the investigation concluded that the decedent did not die as a result of criminally injurious conduct as defined by R.C. 2743.51 (C)(1). Instead, according to the Cuyahoga County Coroner's Office, Rodriguez died from acute, accidental intoxication of heroin and fentanyl.
{¶3} On May 26, 2021, applicant submitted a request for reconsideration. On August 2, 2021, the Attorney General rendered a Final Decision, in which the Attorney General stated that the Finding of Fact and Decision would not be modified.
{¶4} On August 12, 2021, applicant filed a notice of appeal from the Final Decision of the Attorney General. Applicant did not state the basis for her appeal. Hence, a hearing was held before this magistrate on November 4, 2021.
{¶5} Applicant did not arrive to the hearing within the ten minutes that the Court waited. Consequently, the Assistant Attorney General gave her statement first. According to the Attorney General, the Cuyahoga County Medical Examiner concluded that the death was an accidental drug overdose from heroin laced with fentanyl. (Record, p. 48.) The police found drug paraphernalia around the decedent's body, and there were needle marks in his arms. (Record, pp. 48, 52.) The Attorney General denied the claim because decedent was not a victim of criminally injurious conduct.
{¶6} Applicant arrived at the hearing near the end of the Attorney General's statement. Applicant testified that she is the former wife of the decedent. She applied to the fund for the sake of her daughter. She testified that the cause of decedent's death was a mistake and a tragic accident that he made. He had been in different drug recovery programs, getting clean. Applicant would like for her daughter to do better, and financial aid would help with that. Whereupon, the hearing was concluded.
{¶7} R.C. 2743.52(A) places the burden of proof on an applicant to satisfy the Court of Claims that the requirements for an award have been met by a preponderance of the evidence. In re Rios, 8 Ohio Misc.2d 4, 455 N.E.2d 1374 (Ct. of Cl. 1983).
{¶8} 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."
{¶9} 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."
{¶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} Applicant must produce evidence which furnishes a reasonable basis for sustaining her claim. If the evidence furnishes a basis for only a guess, among different possibilities, as to any essential issue in the case, she fails to sustain the burden as to such issue. In re Staten, Ct. of Cl. No. V2001 -60051 tc (May 27, 2011), 2011 -Ohio-4321, citing Landon v. Lee Motors, Inc. 161 Ohio St. 82, 118 N.E.2d 147 (1964).
{¶12} From a careful review of the case file and consideration of the arguments presented at the hearing, I find applicant has presented insufficient evidence to prove the decedent was a victim of criminally injurious conduct. From a review of the police report and the medical examiner report, the decedent died from a drug overdose of heroin and fentanyl. The police did not find any evidence of foul play surrounding decedent's death and determined that he died as the result of an accidental drug overdose. Applicant has not presented any further evidence to counter the police report and medical examiner report, both of which indicate that the overdose, while accidental, was voluntary. A drug overdose does not constitute criminally injurious conduct. See In re Camp, Ct. of Cl. No. 2018-01054 (November 21, 2018), adopted jud (December 7, 2018), 2018-Ohio-5481.
{¶13} Therefore, I recommend that the Attorney General's decision of August 2, 2021 be affirmed.
{¶14} A party may file written objections to the magistrate's decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed. A party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion within 14 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b).