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In Re: A. M. N.

November 19, 2010

IN RE: A. M. N. ANDREW T. NEWLAND APPLICANT


COMMRSOF A THREE- I

Cite as In re A.M.N.,

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: Elizabeth Luper Schuster, Presiding Gregory P. Barwell Randi M. Ostry

SIONER 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 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 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 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 ...


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