NECOL RUSSELL-WASHINGTON
Commissioners:
Necol Russell-Washington, Presiding
William L. Byers IV
E. Joel Wesp
ORDER OF A THREE-COMMISSIONER PANEL
{¶1} On September 9, 2011, the applicant, Cheryl LaCour-Belyn filed a compensation application as the result of the death of her daughter on August 11, 2011. The applicant asserts she was an indirect or secondary victim as the result of her daughter's death. On November 7, 2011, the Attorney General issued a finding of fact and decision determining pursuant to the decision in In re Clapacs (1989), 58 Ohio Misc. 2d 1, that the applicant did not qualify as a victim in her own right since she was unable to meet the requirements delineated in Clapacs. In order to meet the qualifications one must satisfy each element. Clapacs requires: 1) The person has a close relationship with the one upon whom the crime was committed; 2) The person had a direct awareness of the crime or arrived in the immediate aftermath; and 3) The person sustained psychological injury so severe that it impeded or prohibited the person from doing or enjoying his or her day-to-day activities. {¶2} The Attorney General contends that the applicant did not witness the death of her daughter, did not view the crime scene after the crime, and was away from the scene for approximately three months and the scene had substantially changed when she returned. For these reasons the applicant's claim was denied. {¶17} Based upon the Supreme Court holdings in Paugh v. Hanks (1983), 6 Ohio St. 3d 72, 6 OBR 114 451 N.E. 2d 83 and Burris v. Grange Mut. Cos. (1989), 46 Ohio St. 3d 84, 545 N.E. 2d 83, the Court of Claims has espoused certain qualitative factors to be examined when determining who may qualify as a victim in their own right. {¶18} In re Clapacs (1989), 58 Ohio Misc. 2d 1, at paragraphs one and two of the syllabus states:
a. "1. The Court of Claims, Victims of Crime Division, will use a case-by-case analysis to ascertain the impact a criminal incident may have upon a person other than the individual directly involved in the crime and will consider,
inter alia, the following factors: (a) the person's proximity to the location of the crime, (b) the relationship between that person and the person actually assaulted, and (c) the shock directly attributable to the sensory and contemporaneous observance of the incident. (R.C. 2743.51(L), applied).
b. "2. The phrase 'personal injury' contained in the R.C. 2743.51(L) definition of 'victim' includes both psychological injury as well as physical harm. Thus, emotional distress, experienced as a result of criminal activity, constitutes 'personal injury'."
c. In re Fife (1989), 59 Ohio Misc. 2d 1, at paragraph two of the syllabus states:
d. "2. The term 'personal injury,' as used in R.C. 2743.51(L)(1) in reference to a psychological injury, requires a showing of more than mere sorrow, concern or mental distress. That is, the psychological injury must be of such a debilitating nature as to impede or prohibit the resumption or enjoyment of day-to-day activities."
{¶19} This court recognized in
Clapacs and
Fife, that emotional distress due to a direct awareness of a criminal incident can be classified as personal injury. As such, persons other than the victim per se may qualify as victims in their own right. The determination
day in question. While we sympathize with the applicant for her loss we cannot find by a preponderance of the evidence that she satisfied her burden of proof with respect to establishing each and every element of the requirements set forth in
Clapacs and
Fife to qualify as a victim of crime in her own right. Accordingly, the December 13, 2011 decision of the Attorney General is affirmed. {¶29} IT IS THEREFORE ORDERED THAT {¶30} The December 13, 2011 decision of the Attorney General is AFFIRMED; {¶31} This claim is DENIED and judgment is entered for the state of Ohio; {¶32} Costs are assumed by the court of claims victims of crime fund.
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NECOL RUSSELL-WASHINGTON
Presiding Commissioner
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WILLIAM L. BYERS IV
Commissioner
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E. JOEL WESP
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\March - May 2012\V2012-70017 Lacour-Belyn.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 5-22-12
Jr. Vol. 2283, Pgs. 22-30
Sent to S.C. reporter 10-9-12