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In Re: Romena I. Strain

September 23, 2010

IN RE: ROMENA I. STRAIN JAMES P. STRAIN APPLICANT


COINION OF A TWO-

Cite as

In re Strain,

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

Commissioners: Randi M. Ostry Elizabeth Luper Schuster

MMISSIONER 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 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 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 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.

{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 ...


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