Report and Recommendation In the Matter of Kimberli Jo Burback Page 2

Respondents Exhibit F: Letter from the Boards Secretary to Ms. Burback regarding her passing scores on the massage-therapy examination in December 2006. Witnesses Kimberli Jo Burback testified on her own behalf but was not called as a witness by the State. SUMMARY OF THE EVIDENCE All exhibits and the transcript of testimony were reviewed and considered by the Hearing Examiner, although all items of evidence may not be referenced below. Criminal Conviction 1. On March 29, 2004, Kimberli Jo Burback appeared in the Court of Common Pleas of Cuyahoga County in State of Ohio v. Burback, Case No. CR 436106, and she entered a plea of guilty to reckless homicide in violation of R.C. 2903.041, a felony of the third degree. Thereupon, the court found her guilty of that offense. (St. Ex. 2) On May 21, 2004, the court held a sentencing hearing. During that hearing, neither the court nor the parties described in detail how the homicide had occurred or the contents of the reports in the presentencing materials. (St. Ex. 3) However, the transcript of the hearing gives some indication of the nature of the crime as well as the mitigating and/or aggravating factors considered by the court: THE COURT: * * * It [a sentencing memorandum] consists of Miss Burbacks page-and-a-half letter to the Court, nonfamily members who wanted to speak in Miss Burbacks behalf, also an interesting report from Melanie Falls, the social worker, who said that she had, during the course of counseling with Miss Burback, become convinced that Miss Burback is an alcohol abuser, and has 1 been in denial about the extent to which alcohol has impacted her life. Also, we have a report of Dr. Spitz, who added helpful scientific information that I presume I would have heard at trial, had the matter gone to trial, on * * * how the physical evidence corroborates the defendants version of the event. It took me a minute to understand Exhibit J, which was a photograph of the knife sharpener, which isin effect, looks like an ice pick with filed edges. * * * And that was the weapon in the victims hands at the time this took place, Im told. * * * MR. HORN [Asst. Prosecuting Attorney]: * * * I received a call from Chris Dugan, one of [the victims] brothers * * * informing me that he and his mother had decided not to come to the sentencing. * * * [Y]oull also have to remember
The Hearing Examiner notes that the subject administrative action regarding Ms. Burbacks licensure application does not include an allegation relating to impairment due to the use/abuse of alcohol or any other substances. However, the trial courts consideration of a broad array of factors during sentencing is included here because the trial courts views during the sentencing process can be useful to the Board in proceedings under R.C. 4731.22(B)(9).
1

2.

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that Mrs. Dugan, the victims mother, is elderly, and * * * they felt that in the interests of their own sanity, peace of mind, and to help with the healing process, that coming to court here today would not help that, and it would start the grieving all over again. * * * *** Your Honor, one other point I wanted to make, since you made reference to it, was Dr. Spitzs report, and your Honor, just so you know, the state would dispute his opinion in that report. * * * In that the stab wound, according to our coroner, was the full length of the blade, and even a little longer than that, which would indicate that the knife was inserted into the victim with a lot of force, and also that there was a contusion surrounding the entrance wound, which is consistent with a lot of force being used to plunge the knife into the victim. MR. ZUKERMAN [Defense counsel]: If I may, your Honor? I did speak with Dr. Armstrong, who was the pathologist that conducted the autopsy, and she said that she agreed with Dr. Spitzs opinion, that if a knife pierces the skin, it takes very little, if any resistance for it to penetrate the innards. Also, that thisthe theory of accident was just as consistent with the states theory. She could not opine otherwise. She said, by the angle of the blade, his height, her height, it was very consistent with him lunging at her. This was the states witness, Dr. Armstrong. THE COURT: Okay. Well, the presentence report also talks about the event, and Miss Burback was interviewed for the presentence report. She made a written statement. She has a 1985 conviction in Oregon for cocaine use, and received a probationary sentence. MR. ZUKERMAN: Your Honor, thats a misdemeanor. *** THE COURT: Oh, its for frequenting a place where they use cocaine, is that what it is? MR. ZUKERMAN: Yes, your Honor. THE COURT: Okay. In any event, Miss Burbacks social history is given. She did seek out patient treatment at St. Johns West Shore, having to do with her alcohol abuse. She did not complete this treatment because she didnt like hearing other peoples problems. Cant imagine they were worse than yours, maam. And it is clear to the Court that Miss Burback has been running away, and denying her alcohol problem for some time. That she obviously is seeing

Report and Recommendation In the Matter of Kimberli Jo Burback Page 4 Melanie Falls, the social worker, who has been compelling Miss Burback to be in alcohol treatment. She * * * either has or will lose her job with Continental Airlines. I presume that she is ready to start a new job search. This being a third-degree felony, we have the prior history, that one misdemeanor conviction, that marginally counts as a recidivism likely factor. There are no factors indicating recidivism is unlikely, except that shes been lawabiding for a significant number of years. If the last touch with the criminal justice system was 1985, thats nearly twenty years, so that certainly ought to be recognized as a recidivism unlikely. And I think she shows genuine remorse, so that would be a second recidivism unlikely factor. Relative to seriousness factors, there are no factors indicating this is less serious, unless you accept the defendants position that she acted under strong provocation, and her victim induced or facilitated the offense, and that is at least as likely as any other explanation for what occurred. There are some seriousness factors, in any event, and that is that the victim did suffer serious physical harm, and in fact, lost his life. Number two, the defendants relationship with her victim facilitated the offense. And number three, this was a felonious assault type of crime, and it occurred in the vicinity of the defendant and her and his, the victims, two young children. Apparently, the oldest child witnessed the injuries to the victim. What further does the Court need to consider, Mr. Zukerman? MR. ZUKERMAN: * * * I would respectfully contend that Miss Burback is a good person, a good mother, she is a good wife, and is extremely remorseful for her conduct here. I think that drinking led to it.
*** * * * She has been there for her children. She has done everything she can to

undo the harm. And you cant bring somebody back.

***

I believe that Miss Burback is extremely remorseful for what happened, and is accepting responsibility, and will comply with any and all conditions imposed upon her, if the Court were to sentence her to the community. Thank you. THE COURT: I wasI neglected to mention that our Court psychiatric clinic also prepared a mitigation of penalty report. * * * It provides no new information, other thanbeyond what has already been stated. And once again, Dr. Arnoff, who prepared this report, believes that Miss Burbacks use of alcohol * * * has not been fully appreciated by her as playing a role in this and a lot of her other problems.

Report and Recommendation In the Matter of Kimberli Jo Burback Page 5

So maam, what would you like me to consider before I sentence you? THE DEFENDANT: I just want to say how very sorry I am. Im sorry to Kevins family. Im sorry to my family. I am mostly sorry to my children, and to Kevin. Theyre never going to see their dad, what kind of a loving father he would have been. Kevin had so many things he wanted to see. He wanted to see his daughters first date, playing ball. I think of that every day. Im sorry about that. I know Im responsible for his death. I think of that every day. Had we not been drinking, would this have happened? Probably not. Could I have done anything different? Could I have dropped the knife? I dont know. I think of it every single day. But I did not intentionally mean to hurt him, and most certainly not kill him. My children lost their father. I lost my best friend of twenty-five years. We didnt always get along, but we were always there for each other. I am so sorry. THE COURT: So, what are you going to do about the fact that youre a drunk? THE DEFENDANT: I need to get treatment. I know that. And the more and more this has gone on, I know that. THE COURT: Well, how come you havent done anything? This is not news to you. THE DEFENDANT: No, its not. THE COURT: I mean, your counselor, Miss Falls, has been talking to you about it. THE DEFENDANT: Yes. THE COURT: So how come you havent done anything? THE DEFENDANT: Ive been in denial. THE COURT: Well, but I mean, how about last week? How about the week before? How come you havent done anything? You havent beenyou werent in denial a month ago. You went into treatment in December, so you werent in denial then, so how come you havent done something? THE DEFENDANT: I honestly cant answer that. I need to do something. I do know that. THE COURT: Well, the Courts going to place you on a five-year period of community control sanctions. Were going to place you with intensive special

Report and Recommendation In the Matter of Kimberli Jo Burback Page 6 probation supervision. For the time being, youre going to report weekly, and youre going to be subjected to alcohol testing. Youll be arrested if you test positive for alcohol. If you come in here with some kind of treatment program, of some kind of adult getting ready to deal with a very adult problem, the Court would not be compelled to put these kind of onerous burdens on you, but the fact that youre continuing to drag your feet in the face of obvious alcohol problems leaves the Court no other choice. So, you didnt do it your way. The Court will do it my way. It will be burdensome; might deprive you of some job opportunities, but, frankly, until you get, you know, what is job one underway, which is dealing with your alcohol problem, theres no point in pretending otherwise and putting you out in the work force. * * * (St. Ex. 3 at 2-15) 2 3. On May 27, 2004, the court filed its sentencing entry, ordering five years of community control with conditions including the following: 200 hours of community service, regular drug and alcohol testing, arrest on first positive test for alcohol or drugs, attendance four times per week at meetings of Alcoholics/Narcotic/Cocaine Anonymous, no prescriptions for narcotic drugs unless first verified with the probation department, a prohibition against entering premises serving liquor, and a prohibition against having liquor in her home. (St. Ex. 4) The court stated that violation of the terms and conditions of community control could result in more restrictive sanctions or a prison term of five years. In addition, Ms. Burback was ordered to pay court costs and supervision fees. (St. Ex. 4) Massage-Therapy Training and Application for Ohio Certificate 4. On August 17, 2006, Ms. Burback submitted to the Board an Application for Certificate to Practice a Limited Branch, Massage Therapy. She stated that she resides in Olmsted Falls in Olmsted Township, Ohio. (St. Ex. 5 at 8, 10) In her application, Ms. Burback indicated that she was born in 1964 in Portland, Oregon, and graduated from high school in 1983. (St. Ex. 5 at 17) She stated that, from 12/87 to 5/86 [sic], she completed massage-therapy training in Oregon but did not take the boards. (St. Ex. at 9, 17) Ms. Burback further indicated that, from 1988 to 2004, she worked for Continental Airlines in Cleveland, Ohio. After her felony conviction, she began studies in 2005 at the Cleveland Institute of Medical Massage in Middleburg Heights, Ohio, from which she graduated in October 2006. (St. Ex. at 9-10, 20)

In quoting the transcript, the Hearing Examiner corrected minor clerical errors.

Report and Recommendation In the Matter of Kimberli Jo Burback Page 7

5.

The instructions in the application state that all affirmative answers must be thoroughly explained on a separate sheet of paper, and that, for any yes answer, the applicant is required to furnish complete details, include date, place, reason and disposition of the matter. On her licensure application, Ms. Burback answered Yes when asked whether she had been convicted or found guilty of any violation of law, regardless of the legal jurisdiction in which the act was committed, other than a minor traffic violation. (St. Ex. 5 at 11) Ms. Burback submitted the following statement to the Board, setting forth her version of the events leading to her criminal conviction for reckless homicide, and explaining why the Board should grant her a certificate to practice massage therapy: Thank you in advance for your gracious consideration. Following is an explanation of the felony conviction on my record from my very personal perspective: On the night of March 27 2003 the most tragic accident occurred. It was the birthday of my significant other of 25 years. The beginning of our evening was wonderful. As the night progressed he became more and more agitated. He was angry because none of his family members had called him. This was not abnormal for his family as they had very little interaction. Kevin, my significant other, began drinking excessively. I noticed his anger building and tried talking with him about it. He became even more agitated and began taking his anger out on me. This was not the first time he had been abusive. There were incidents in which he had pushed and thrown me down in front of our children. I had made two previous 911 calls. We were trying to work through our problems primarily because of our children, who at this time were 8 and 5 years old. That night we began arguing. He slapped me across the face. I asked him many times to go downstairs. He would leave and then come back up purposely trying to provoke me. I was in the kitchen cleaning up from dinner. Kevin again came upstairs and wanted to continue arguing. I was trying to ignore him. This angered him even more. He grabbed a knife sharpener and began waiving it at me and yelling. He then went back downstairs. I continued to clean the kitchen and do the dishes. I just wanted to go to bed at this point. The next thing I heard was a loud noise behind me. I later found out he had jabbed the knife sharpener into the wall. My guess is that he was trying to get a reaction from me. I turned around frightened and defensive. Backed up against the sink I had nowhere to go. Kevin was coming at me with the knife sharpener raised up in his hand. I held up what I had in my hand which was a knife that I was putting away from dinner. He lunged over me and the knife went into his arm. He took a couple steps back and I could see drops of blood. He then fell to the floor. I immediately called 911. I grabbed a towel. Kevin was breathing but began bleeding more and more. I compressed his wound and stayed on the phone with 911 until the paramedics arrived. Kevin passed away early the next morning do [sic] to excessive bleeding. I was later charged with his death.

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Kevin truly was a wonderful person. I believe he was suffering from depression which was causing his behavior. His death was a huge loss to all. I cant even explain how very sorry I am and how very much I miss him. My life has always revolved around the public. I truly believe my greatest attribute is my ability to relate well with all types of people. I was a flight attendant with Continental Airlines for 16 years. During this time I was fortunate to interact with many people in many walks of life. I have two children 11 and 8 which are doing extremely well. I believe their success is primarily due to my keeping life for them as normal as possible after there [sic] father passed away. I continued to volunteer at there [sic] school and kept them involved in sports activities. This was extremely hard considering the charges I was facing. For me however there were no other options. My children needed me now more than ever. After one year of pre-trials the prosecutor offered me a plea bargain of reckless homicide. I did not want my children going through any more trauma. I accepted the plea rather than go to trial even though my attorney was confident that we could win. Considering my past, my attorney and I were fully assured that the judge would sentence me to probation rather than jail. I have always been an outstanding citizen. I had no history of violence and was very involved in my community. On May 27 2004 I was sentenced to 5 years probation, community service and alcohol treatment as alcohol was used that evening. I completed the latter two and am currently on probation. I truly believe that I would be an attribute to the massage industry. Im professional, considerate and have excellent morals. I enjoy helping others and feel massage is a great way to do so. I have worked extremely hard at school and I am at the top of my class. I would greatly appreciate the opportunity to sit for the Ohio State Medical Board. Again I thank you for your consideration. (St. Ex. 5 at 2, 7) 7. The application materials also include a recommendation letter dated August 10, 2006, from Ms. Burbacks counselor, Melanie K. Falls, LISW, LICDC. (St. Ex. 5 at 18) Ms. Burback testified that she and Ms. Falls have become very, very close and that she still sees Ms. Falls once per month as her counselor. (Tr. at 24) Ms. Falls wrote in part: * * * I believe that Kimberli will make a solid professional dedicated to the profession of massage therapy and will benefit her patients. Kimberli is a dependable, mature woman. She gives one hundred percent of her energy to her interests. She is passionate about massage. She is compassionate and, I believe, will be able to extend that compassion to her patients.

Report and Recommendation In the Matter of Kimberli Jo Burback Page 9 (St. Ex. 5 at 18) Ms. Falls further stated that Ms. Burback is an attentive and active mother who is raising her children as a single mother after a tragic event and has done an exemplary job. Ms. Falls stated that Ms. Burback could be depended upon to carry out commitments, and exemplify patience and care. (St. Ex. 5 at 18)3 8. Beverly Briggs, LMT, the Clinical Director at the Cleveland Institute of Medical Massage, also wrote a letter of recommendation. She praised Ms. Burbacks passion for massage therapy and for helping people, and noted positive responses from clients. Ms. Briggs stated that Ms. Burback was a very successful student who had returned to tutor current students and who would be an asset to the field of massage therapy. (Resp. Ex. D)4 In December 2006, Ms. Burback took the massage-therapy examination. In January 2007, the Board notified her that she had passed with scores of 94 on both portions of the examination. (St. Ex. 5 at 23)

9.

Additional Testimony from Ms. Burback at Hearing 10. At the hearing, Ms. Burback testified that her daughter and son live with her. She stated that she receives Social Security benefits and does some relaxation massage, which she said had been approved by the Board. (Tr. at 51-52) Ms. Burback testified that, during orientation at her massage-training school, she had asked whether her felony conviction would pose a problem in obtaining licensure in Ohio and was initially told there would be no problem. However, Ms. Burback stated that she later spoke with instructors who said, yes, there are going to be definite issues. However, Ms. Burback decided to continue her training. She testified that she paid for her training with money received from her family and with savings. (Tr. at 61-62) In addition, Ms. Burback elaborated on the written explanation she had provided with her application, regarding the homicide. Among other things, she testified that she had stayed with her childrens father because it was best for the children, but the fighting escalated and he got more abusive. She stated: I was backed up against a sink. All I did was hold up this knife which I was putting away. I was cleaning. He came into it. And there are reports of a wounds examiner that state it was no stabbing. * * * It was him coming forceful into it. (Tr. at 28-29) Ms. Burback further stated:
* * * I just want I need people to understand that Ive suffered here, too. I

11.

12.

have a loss here, too. My children have a huge loss. I think I worked really hard to keep things normal for my kids. To start a new career, not just go get a job just to provide, Ive worked really hard. And its not just for me. Its really a lot for them. (Tr. at 29)
At hearing, Ms. Burback presented another letter from Ms. Falls, also dated August 10, 2006, but explained she had not submitted that letter because her name was misspelled in it. (Resp. Ex. E; Tr. at 24, 34-40)
4 3

The statements of Ms. Falls and Ms. Briggs were unsworn and not subject to cross-examination at hearing.

Report and Recommendation In the Matter of Kimberli Jo Burback Page 10

13.

With respect to her licensure application, Ms. Burback testified that she recalled the instructions for the questions on pages 11 and 12 of the application, which had instructed that if she answered Yes to any question, she must furnish complete details. Ms. Burback acknowledged that she had answered Yes to the question about criminal convictions but had not mentioned the 1985 conviction. She testified that she had been focused on the conviction for reckless homicide and did not even think about the 1985 conviction, more than 20 years ago, when filling out her application. (Tr. at 41-43) In addition, Ms. Burback wanted to take the opportunity during the hearing to address any concerns the Board might have regarding alcohol abuse, given that the Common Pleas Court had addressed that topic. Both the Assistant Attorney General and the Hearing Examiner made clear to Ms. Burback that the notice of opportunity for hearing did not include any allegation of impairment from alcohol or other substance, and that she need not address the matter. Following that discussion, Ms. Burback chose to testify on her own behalf, and she stated as follows: A. Part of my sentencing was that I went through a[n] alcohol treatment program, which I did successfully complete it. It was an outpatient, but it was, I believeit was intensive outpatient. I did complete that. I completed the aftercare. I believe Glenbeigh diagnosed meand, okay, also who's the attorney, Lynn Q. [by the Asst. Atty. General] Zondorak from the Board. A. Yes. Thank you. We thought together that I would have two evaluations done and that might suffice versus having this hearing. I did have an evaluation done from Glenbeigh. I never received any documentation on that; however, I did speak with Lynn, who informed me that there were no ailments or any disabilities or anything from that evaluation. During that evaluation I spoke with Pam, who did the evaluation, and I had some questions about their original assessment [at Glenbeigh], which they had said was dependent. Now, my therapist said it was more abuse, and abuse because of our situation together. I was more just medicating. Did I drink all the time, no. But did I want to kind of get away when we started fighting, yes. I asked Pam with Glenbeigh about the [prior] assessment, and she said the dependency assessment was primarily for insurance purposes so that insurance would cover treatment. So, I mean, between dependence/abuse of [alcohol] they can't draw that fine line so they go with dependent because it helps with my insurance company. So I just wanted to -- you know Q. Do you know when that evaluation at Glenbeigh was done approximately? A. Uh-huh. This is October. Julyit was the summer. It was this summer. Q. This summer, good. And then was there any recommendation for further treatment?

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Report and Recommendation In the Matter of Kimberli Jo Burback Page 11 A. Zero. She fully drug tested. She breathalyzed me. I was scheduled to have another evaluation with the Cleveland Clinic done, and the day I was scheduled to go there I received a registered letter saying there was to be a hearing. I called Lynn, and Lynn said why waste 400 more dollars. So I did have that evaluation recently done. Q. [by the Hearing Examiner] Excuse me. I didn't understand your last statement. Can you say that again? You said you had that evaluation done? A: So I did not have that last evaluation done with the Cleveland Clinic. Q. All right. So had you one at Glenbeigh, but not A. Correct. Not the Cleveland Clinic. *** Q. [by the Asst. Atty. General] And so that I'm clear, the Glenbeigh evaluation, was the ultimate determination alcohol dependence but not A. Originally in 2004 is when they did the assessment. So that was in 2004. Q. 2004, okay. A. Not 2007. That was nothing. Q. So the 2004 evaluation was dependence? A. Yes. Q. Okay. Was the 2004 evaluation, was that a court-ordered evaluation as a part of your sentence? Do you recall? A. It was not the evaluation. The treatment was court-ordered. Q. Okay. A. So this dependency was my assessment prior to treatment. Q. Okay. Are you currently under any type of treatment for substance abuse? A. No. I occasionally go toI have a girlfriend thatI don't see her that much anymorethat was my sponsor. So I will occasionally go to a meeting or something with her. She's been 19 years sober. Our kids know each other and so Q. Are you still on probation for the criminal conviction? A. I will be on probation until May 21st of 2009. (Tr. at 47-51)

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Ms. Burback testified further regarding her assessments at Glenbeigh Hospital, and it was the Hearing Examiners understanding of the testimony that, according to Ms. Burback, she had first been assessed at Glenbeigh in 2004 after her sentencing, in connection with and preparatory to entering a court-ordered treatment program, at which time the diagnosis by Glenbeigh had been alcohol dependence, and that she later underwent another assessment at Glenbeigh in 2007, at which time there was no diagnosis or recommendation for treatment. (Tr. at 47-51, 5356) Ms. Burback asserted that she is in compliance with the terms of her probation. She testified that her sobriety date is May 17, 2004, and that she does not currently consume alcohol. She stated that she had attended AA meetings four times per week until about seven months ago, when her probation officer had ceased asking her to do that any longer. Ms. Burback explained that the probation officer did not say anything to her directly about no longer being required to attend AA, but had just stopped asking me for my papers and stuff, and I just stopped going. Ms. Burback testified that she had assumed that attendance at AA was no longer required as part of the probationary conditions imposed by the court. (Tr. at 51-52, 56-58) Further, Ms. Burback stated that, if there was anything the Board wanted her to do, she would do it, whatever the Board felt necessary to protect the public. She emphasized that she would comply with any terms and conditions that the Board might impose in connection with granting her a certificate to practice. (Tr. at 60, 69) FINDINGS OF FACT

16.

17.

1.

On August 17, 2006, Kimberli Jo Burback submitted to the Board an Application for Certificate to Practice a Limited Branch, Massage Therapy, which remains pending. On March 29, 2004, in the Court of Common Pleas, Cuyahoga County, Ohio, Ms. Burback entered a plea of guilty to reckless homicide in violation of R.C. 2903.041. On May 27, 2004, the court imposed sentence on her for that crime. The conviction was based on a homicide in which she stabbed her significant other with a kitchen knife during an argument.

2.

CONCLUSION OF LAW The guilty plea entered by Kimberli Jo Burback, and/or the judicial finding of guilt as set forth above in Finding of Fact 2, constitute a plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a felony, as that language is used in R.C. 4731.22(B)(9).