Opinion
No. V89-82036.
Decided July 12, 1990.
Beth A. Kolotkin, for the applicant.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
On October 17, 1989, in Montgomery County, Ohio, Lois B. Franck-Brown was strangled to death by her husband, Tyrone Brown. Jacqueline M. Franck is the decedent's minor child, and Glenn H. Franck, the applicant, is Jacqueline's father. The offender, who was living with his wife, the decedent, attempted to commit suicide after killing his wife by taking an overdose of prescription medicine.
The Attorney General investigated the applicant's claim and recommended the applicant be granted an award of reparations in the amount of $385.43, consisting entirely of unreimbursed allowable expense. The applicant's wife was forced to miss work to care for the victim. Pursuant to In re Lyon (1987), 36 Ohio Misc.2d 22, 521 N.E.2d 1155, this loss will be considered allowable expense.
After consideration of the reparations application, the Attorney General's finding of fact and recommendation, the investigative material in the claim file, and the applicant's response, I find the applicant has met the jurisdictional requirements necessary for an award of reparations.
Although the alleged victim was not present in the room when the criminally injurious conduct took place, she may, nevertheless, qualify as a victim.
R.C. 2743.51(L) states:
"`Victim' means a person who suffers personal injury or death as a result of any of the following:
"(1) Criminally injurious conduct;
"(2) The good faith effort of any person to prevent criminally injurious conduct;
"(3) The good faith effort of any person to apprehend a person suspected of engaging in criminally injurious conduct."
The question relevant to this claim is whether the applicant suffered injury as a result of criminally injurious conduct, thereby qualifying as a victim. In the recent decision of In re Fife (1989), 59 Ohio Misc.2d 1, 569 N.E.2d 1078, it was determined the court must analyze, on a case-by-case basis, the nature of an applicant's alleged injury and its relationship to the criminal incident.
As stated in Fife at 3, 569 N.E.2d at 1081:
"* * * To receive compensation an applicant is required to prove the relationship of an injury to the criminal event by a preponderance of the evidence. It is contemplated that `personal injury' as compensated herein shall require a showing of more than mere sorrow, concern, or mental distress. Psychological injury must be of such a debilitating nature so as to impede or prohibit the resumption or enjoyment of day-to-day activities. * * *"
The materials in the claim file indicate Jacqueline Franck incurred counseling expense as a result of her direct awareness of the criminally injurious conduct which was perpetrated upon her mother by the offender. In Fife, the applicant went to look for his son after he did not return home when expected and found him lying in a field behind their house. The boy had been raped, mutilated and partially incinerated.
Similarly, Jacqueline Franck, an eleven-year-old child, went to look in on her mother and stepfather after the two failed to wake her up for school and found them lying motionless across their bed. Nearby, Jacqueline found a note instructing her to have her father come and get her. The night before, Jacqueline had been awakened by her mother's cries for help; at that time, Jacqueline thought she was dreaming. However, Lois Franck-Brown's cries were real; her husband, Tyrone Brown was strangling her. Given these facts, I must find the applicant's claim meets the requirements of In re Fife. Therefore, the claim will be granted.
Findings of Fact
1. Jacqueline M. Franck suffered personal injury on October 17, 1989, in Montgomery County, Ohio, as the result of criminally injurious conduct.
2. The applicant is the injured party's father.
3. The criminally injurious conduct was reported to the Miami Township Police Department immediately after its discovery.
4. Glenn H. Franck has incurred unreimbursed allowable expense in the amount of $385.43.
Conclusions of Law
1. Jacqueline M. Franck qualifies as a "victim" as defined in R.C. 2743.51(L) and In re Fife, supra.
2. Glenn H. Franck qualifies as a "claimant" as defined in R.C. 2743.51(A).
3. An award of reparations is granted within the limitations of R.C. 2743.60(I) in the amount of $385.43, all of which represents "unreimbursed allowable expense," as defined in R.C. 2743.51(F) and In re Lyon, supra.
Order
1. Judgment is rendered against the state of Ohio and the Director of Budget and Management as its agency for payment of the award in the amount of $385.43.
2. The warrant issued in payment of this judgment to the applicant shall be sent by the Director of Budget and Management to the applicant at the address certified to the Director by the Clerk of this court.
3. This order is entered without prejudice to the applicant's right to file a supplemental reparations application pursuant to R.C. 2743.68 if the applicant incurs economic loss not considered in this determination and not reimbursed from other persons, including collateral sources.
4. This order is entered without prejudice to the applicant's right to file a supplemental reparations application pursuant to R.C. 2743.60(D) and 2743.68 if the applicant submits timely application to a collateral source for payment but does not receive reimbursement from that source.
5. This award is expressly conditioned upon the subrogation provisions of R.C. 2743.72, which require any benefits or advantages received from any collateral source, including the offender, be repaid to the state of Ohio.
6. Costs are to be assumed by the reparations fund.
So ordered.