In re A.M.N.

[Cite as In re A.M.N., 2010-Ohio-6717.]
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: A. M. N.
ANDREW T. NEWLAND
Applicant
Case No. V2009-40803
Commissioners:
Elizabeth Luper Schuster, Presiding
Gregory P. Barwell
Randi M. Ostry
ORDER OF A THREE-
COMMISSIONER PANEL
{1}On May 29, 2009, the applicant, Andrew Newland, filed a compensation
application on behalf of his minor child A.M.N. On September 11, 2009, the Attorney
General issued a finding of fact and decision determining that A.M.N. qualified as a
victim of criminally injurious conduct and the applicant met the necessary jurisdictional
requirements to qualify to receive an award of reparations. The applicant was granted
an award in the amount of $82.71, which represented mileage expenses. The
applicant’s claim for reimbursement of medical expenses was denied based on the fact
they have been or could have been recouped from a readily available collateral source,
Medicaid. The applicant’s claim for work loss was denied based on his failure to supply
necessary documentation. Finally, the applicant’s request to build a privacy fence was
denied since such cost was not compensable under the program.
{2}On September 14, 2009, the applicant submitted a request for
reconsideration. On November 13, 2009, the Attorney General rendered a Final
Decision finding no reason to modify his initial decision. On November 19, 2009, the
applicant filed a notice of appeal from the November 13, 2009 Final Decision of the
Case No. V2009-40803 - 2 - ORDER
Attorney General. Hence, a hearing was held before this panel of commissioners on
January 20, 2010 at 11:10 A.M.
{3}The applicant and the applicant’s attorney, Michael Falleur, appeared, while
Assistant Attorney General Lyndsay Nash represented the state of Ohio.
{4}The applicant asserts the sole issue on appeal is whether the construction of
a privacy fence meets the definition of an allowable expense as contained in R.C.
2743.51(F)(1). A six-foot high fence would separate the victim’s home from the
offender’s home and a four foot section of fence would attach to the other neighbor’s
existing fence. The applicant asserts this fence would meet the requirements outlined
in a letter from Melanie James, Center for Child and Family Advocacy, Nationwide
Children’s Hospital dated June 29, 2009. In that letter, Ms. James felt a fence “would
be therapeutically beneficial by reducing the physical and visual contact” with the
offender.
{5}The Attorney General’s position was that the applicant has not sustained his
burden to prove that the fence is an allowable expense pursuant to R.C. 2743.51(F)(1).
{6}The applicant, Andrew Newland, was called to testify. Mr. Newland related
the background surrounding the sexual abuse of his minor son A.M.N. by a teenage
neighbor boy. The applicant briefly related the subsequent criminal prosecution of the
offender, which is currently pending.
{7}The applicant was presented with Applicant’s Exhibit 1, an aerial photograph
of the neighborhood. The applicant indicated the location of his home, the offender’s
home, and the location of the home of another victim of the offender. The backyard of
the applicant’s home abuts the backyard of the offender’s home. Where the backyards
adjoin, the applicant wishes to erect a six-foot section of fence. The applicant asserts
that his son, the victim, would feel safer if there was no visual contact with the offender.
The four-foot section of fencing would separate his property from other neighbors and
the fence would be of a style to conform to other neighborhood fencing. Exhibit 2 was
Case No. V2009-40803 - 3 - ORDER
then presented. Exhibit 2 revealed the style of the four-foot fencing. Exhibit 3
depicted the back of the applicant’s home showing that there are no windows. A
four-foot fence would be erected between the applicant’s property and the property of
another neighbor boy who had also been a victim of the same offender. Exhibits 4 and
5 were then presented with different views of a deck and the applicant related where the
placement of the six and four-foot sections of fencing would be erected.
{8}The applicant related he received an estimate from the Trudeau’s Fencing
Company to erect sections of six foot and four foot fencing as outlined in his testimony.
The applicant related he signed an agreement for remedial treatment and care with the
Trudeau Company for the building of the fence in the amount of $6,421.00.
{9}Upon cross-examination, the applicant conceded that the victim’s bedroom
faces the offender’s home and is located on the second floor. Even with a six-foot
privacy fence the victim would be able to view the offender’s residence. The applicant
admitted that the offender could see around the sections of fencing that were four feet in
height. Whereupon, the testimony of the applicant was concluded.
{10}In closing the applicant believes the panel should rely on the holding in In
re Kaiser, V90-56922tc (10-25-91). A fence would reinforce the counseling the victim
has received and provide a valuable therapeutic safe guard. The applicant asserts the
fence will assist with the remedial healing and treatment of A.M.N. Upon questioning
by the panel of commissioners, the applicant conceded that the outcome of the criminal
case against the offender could be a determining factor in whether the fence would be
necessary.
{11}Attorney General contends that the building of the fence is not reasonable,
since the majority of the fence is four feet which will not prevent the offender from
viewing the victim. Additionally, the applicant testified the victim’s second-floor
bedroom overlooks the offender’s backyard so even a six-foot fence would not prevent
visual contact. The Attorney General questioned how much protection a fence would
offer the victim. The Attorney General distinguished the holding in In re Kaiser from the
Case No. V2009-40803 - 4 - ORDER
case at bar, since in Kaiser security bars protected the victim from another break-in of
her home, while the four-foot section of fence would not provide the same protection.
The Attorney General also addressed the issue of the juvenile court hearing concerning
the offender. If the offender was removed from his home a fence would not be
necessary.
{12}Both parties agreed that a decision in this matter should be stayed until the
outcome of the juvenile hearing against the offender is completed. Accordingly, the
panel of commissioners’ stayed the claim until the juvenile hearing is concluded.
Whereupon, the hearing ended.
{13}On February 17, 2010, a status conference was held concerning the
juvenile matter. Due to the fact that the juvenile proceedings were still pending, the
parties made a joint motion for continuance. On February 25, 2010, this panel issued
an order granting the parties’ joint motion and setting another status conference for
March 17, 2010.
{14}On March 17, 2010, a status conference was held. The Attorney General
related the offender was adjudicated delinquent for two counts of sexual imposition.
Sentencing would not occur until the end of April and it was unclear whether the
offender would remain in his home. The Attorney General confirmed that there was a
“no contact order” in place. The applicant presented an estimate by the Trudeau
Fence Company for a six-foot fence encompassing the property at the cost of
$16,686.50. On April 7, 2010, the Attorney General filed a motion to schedule an
additional status conference. On April 30, 2010, this panel issued an order scheduling
a status conference for June 16, 2010.
{15}On June 16, 2010, a status conference was held between the parties and
the panel of commissioners. At that time it was revealed that although the offender
was adjudged delinquent he would remain in his home. On June 16, 2010, the
applicant supplied fence estimates from the Trudeau’s Fence Company. The estimate
Case No. V2009-40803 - 5 - ORDER
presented four options 1) a six-foot fence for the area in question in the amount of
$16,686.50; 2) “deduct the neighbor’s 115' of 6' fence + stain + removal of old fence
DEDUCT $4,600.00 = $12,086.50 shadow box and stain”; 3) “6' + 4' DE Solid Board
with 2 gates + stained one coat $10,750.00 (This was not including the 115' of
neighbor’s fence)”; and 4) “6' + 4' White Vinyl privacy with 2 gates $15,000.00 or
$16,500.00 for two (This was not including the 115' of neighbor’s fence).”
{16}R.C. 2743.51(F)(1) in pertinent part states:
“(F)(1) ‘Allowable expense’ means reasonable charges incurred for reasonably
needed products, services, and accommodations, including those for medical
care, rehabilitation, rehabilitative occupational training, and other remedial
treatment and care and including replacement costs for eyeglasses and other
corrective lenses.”
{17}From review of the case file and with full and careful consideration given to
the testimony of the applicant and arguments of counsel, we find the privacy fence is an
allowable expense within the meaning of R.C. 2743.51(F)(1). We are convinced by the
testimony of the applicant and the letters submitted by Melanie James, Center for Child
and Family Advocacy, Nationwide Children’s Hospital, and Lourdes Hill of the same
organization, that the erection of a privacy fence would assist in A.M.N.’s remedial
treatment and care.
{18}Ms. James in pertinent part stated:
“It is also clinically helpful if physical and visual contact, with his offender, be
reduced, and due to the current close proximity of A.M.N. and his offender’s yard with
limited barriers, this can be triggering for him. These triggers make the progress in
treatment very difficult and could increase a child’s behaviors and symptoms. A fence
for the Newland home would be therapeutically beneficial by reducing the physical and
visual contact A.M.N. has with his identified perpetrator and could assist in his
Case No. V2009-40803 - 6 - ORDER
caregivers being able to appropriately manage his symptoms and move towards
healing.”
{19}Ms. Hill in pertinet part stated:
“It is also clinically helpful if physical and visual contact with his offender be
reduced as this can impact treatment outcome. Specifically, the current close proximity
of A.M.N. and his offender’s yard with limited barriers can be triggering for A.M.N.
{20}“Furthermore, these triggers make treatment progress very difficult and
could increase a child’s behaviors and symptoms. A fence for the Newland home
would be therapeutically beneficial by reducing the physical and visual contact A.M.N.
has with his identified perpetrator and could assist in his caregivers being able to
appropriately manage his symptoms and move towards healing.”
{21}We find the case at bar analogous to In re Kaiser. While the Kaiser case
involved the installation of security bars on Kendra Kaiser’s home after a home
invasion, the panel decision emphasized the security bars were “reasonably necessary
for her rehabilitative treatment and care.” While the bars provided for physical security,
the main purpose of their installation was to provide “emotional well-being.”
{22}In the case at bar, we believe that the victim should be able to use his
backyard without the physical fear and emotional trauma associated with visually
confronting his offender. Therefore, we find the privacy fence constitutes an allowable
expense as defined by R.C. 2743.51(F)(1). The six-foot section of fence provides a
buffer between their backyards, yet the four-foot section of fence blends into the
surrounding neighborhood allowing A.M.N. to maintain contact with his neighborhood
friends. A six-foot fence surrounding his entire property would convey the impression
that the victim was being enclosed from the surrounding neighborhood; in a sense, that
he was being confined for the actions committed against him.
{23}We believe the best option, taking into consideration the cost involved and
the integrity of the Crime Victim’s Compensation Fund, would be option 3 provided by
the Trudeau’s Fencing Company. That option is the “6' + 4' De Solid Board with 2
Case No. V2009-40803 - 7 - ORDER
gates + stained one coat $10,750.00 (This is not including the 115' of neighbor’s
fence).”
{24}Therefore, the November 13, 2009 Final Decision of the Attorney General
is reversed.
IT IS THEREFORE ORDERED THAT
{25}1) Applicant’s Exhibits 1, 2, 3, 4, and 5 are admitted into evidence;
{26}2) The November 13, 2009 decision of the Attorney General is
REVERSED and judgment is rendered in favor of the applicant in the amount of
$10,750.00;
{27}3) This claim is remanded to the Attorney General for payment and
monitoring to ensure that an agreement is entered into between the applicant and
Trudeau Fence Company and a fence as envisioned by this order is completed;
{28}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;
{29}5) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
ELIZABETH LUPER SCHUSTER
Presiding Commissioner
_______________________________________
GREGORY P. BARWELL
Commissioner
Case No. V2009-40803 - 8 - ORDER
_______________________________________
RANDI M. OSTRY
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2010\Sept - Nov 2010\V2009-40803.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Franklin County Prosecuting Attorney and to:
Filed 11-19-10
Jr. Vol. 2277, Pgs. 85-92
Sent to S.C. Reporter 10-11-11