IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
IN THE MATTER OF:
O R D E R
Claimant appeared in person.
Joy M. Bolling, Assistant Attorney General, for the State of West Virginia.
An application of the claimant, Kathryn Evans, on behalf of her minor son, Nikolas P.
Hutchison, for an award under the West Virginia Crime Victims Compensation Act, was filed June
21, 2002. The report of the Claim Investigator, filed December 27, 2002, recommended that no
award be granted, to which the claimant filed a response in disagreement. An Order was issued on
February 27, 2003, upholding the Investigator's recommendation and denying the claim, in response
to which the claimant's request for hearing was filed March 11, 2003. This matter came on for
hearing September 10, 2003, claimant appearing pro se and the State of West Virginia by counsel,
Joy M. Bolling, Assistant Attorney General.
Claimant Kathryn Evans is the mother and legal guardian of Nikolas P. Hutchison, a minor, age seventeen, and the alleged victim of criminally injurious conduct in Wheeling, Ohio County, on
March 23, 2002. Nikolas was punched numerous times in the face by the alleged offender, Jeremy
Coyne, also a minor. As a result of this attack, the victim suffered serious injuries including facial
lacerations and a broken jaw.
This claim was initially denied on the basis that the alleged victim was guilty of contributory
misconduct. Nothing adduced at the hearing convinces this Court otherwise. The Court is
constrained by the evidence to affirm the original Order finding that the victim was guilty of
The claimant, Ms. Evans, testified at the hearing of this matter regarding the circumstances
surrounding the incident and the injuries sustained by her son as a result of the attack. Nikolas
Hutchison was not at the hearing to testify as to the incident and the circumstances surrounding it.
(Transcript, page 10.) At the time of the incident, the victim lived at home with the claimant and
attended Wheeling Central Catholic High School. (Transcript, page 4.) According to the claimant,
there was a planned fight between Christopher Stephens and Ricky Zambito, the victim's friend.
(Transcript, pages 12,13.) The fight was supposed to take place at Garden Park, which is
approximately two blocks from the claimant's home. The claimant testified that she was unaware of
the planned fight until after it occurred. (Transcript, page 4.) On March 23, 2002, the victim and
two of his friends were with him at the claimant's home.
The claimant recalled that one of the friends
was Lee McKitrick. The claimant stated that the three boys were there most of the evening
(Transcript, page 4.) The claimant admitted that at some point that evening the victim was involved
in arranging a fight. He called Christopher Stephens on the telephone and told him that Ricky
Zambito was going to meet him at Garden Park to fight. (Transcript, page 14.)
This is corroborated by Sergeant Joseph Petri's report. (Transcript, page 15.) However, Ricky Zambito wisely decided
that he was not going to show up for the fight.
Claimant testified that all three boys left her house that
night at approximately 11:00 p.m. (Transcript, page 9.) The claimant testified that she "did know
that they were going to tell someone that Zambito wasn't going to show up." (Transcript, page 4.)
She stated that her son went to Garden Park to tell everyone that Zambito was not coming to fight.
(Transcript, page 13.)
Although Mr. Zambito did not show up for the planned fight, according to the
Wheeling Police Department Incident Report prepared by Sergeant Petri, there was a significantly
large group of teenagers present to watch the fight. According to the police report, there were
approximately eleven individuals at the scene, including the victim. Based upon the police report
which was introduced into evidence at the hearing, it appears that Shasta Monteleone took it upon
herself to start a disturbance by yelling at the offender, Jeremy Coyne, who in turn yelled back.
Dustin Schroeder, a friend of the victim, came to Shasta Monteleone's defense and began yelling at
the offender. Thus, an unplanned fight erupted when Dustin Schroeder punched the offender in the
face and then kicked him. According to the police report, it was then that the victim got in really
close to the offender, Jeremy Coyne, during the fight and started screaming at him that he hated him
and for Dustin Schroeder to "kick his ass." The claimant also admitted in her testimony that the
victim yelled obscenities at Jeremy Coyne while encouraging Dustin Schroder to continue hitting him.
(Transcript, page 13.) According to the police report, the alleged offender and Dustin Schroeder
stopped fighting each other and the alleged offender turned to the victim whereupon a shouting match
ensued between the two. The police report indicated that the offender then punched the victim in the
face causing him to stumble backward. The victim stepped forward toward the alleged offender who
proceeded to punch the victim until he dropped to his knees. Numerous persons at the scene tried to separate the alleged offender and the victim. At this point, the victim began walking towards his car
attempting to leave, but the alleged offender pursued him and caught up with him at the victim's car
where the offender began punching him in the face and kicking him. (Transcript, page 5.) It was
during this second attack that the victim sustained most, if not all, of his injuries. (Transcript, page
5.) The victim suffered serious injuries, including a fractured jawbone and a broken molar. Due to
the fractured jawbone, the victim had to have plastic surgery which required that his mouth be wired
closed for six weeks. (Transcript, page 6.) He also suffered serious facial bruising, swelling, and
lacerations. As a result of this incident, the victim has endured physical pain, emotional distress, and
embarrassment. In addition, the victim's mother, who is his legal guardian, has incurred medical
expenses in excess of $6,000.00.
Sergeant Joseph Petri, an officer with the Wheeling Police Department, investigated this
incident. (Transcript, page 16.) He testified that based upon his investigation, the victim in fact did
call Christopher Stephens to tell him that Ricky Zambito was going to meet him at the park to fight.
(Transcript, page 16.) He also testified that he believes that the victim went to the scene to witness
a fight, and that once a fight did ensue he encouraged the person hitting the offender to continue
hitting him. (Transcript, page 16,17.) Further, Sergeant Petri testified that the victim yelled
obscenities and cheered Dustin Schroder on to continue hitting the offender. (Transcript, page 16,17.)
According to Sergeant Petri's investigation, when the offender and Dustin Schroder stopped fighting
and the offender turned and exchanged punches with the victim, the victim was knocked to his knees.
(Transcript, page 24.) Sergeant Petri stated that this first altercation was broken up by the other
individuals at the scene, and that the victim "retreated" after the first exchange. (Transcript, page 17.)
Sergeant Petri testified that within approximately one minute after the initial fight, the offender went after the victim a second time and proceeded to punch him in the face, causing serious injuries.
(Transcript, page 17.) It is Sergeant Petri's opinion, based upon his investigation and twenty-eight
years of experience, that the initial exchange between the offender and the victim may have been
verbally provoked. (Transcript, page 17.) However, he believes the second exchange in which the
more serious damage was done was simply the offender's attempt to punish the victim and "inflicting
his own brand of justice." (Transcript, page 17.) Sergeant Petri testified that all witnesses to the
attack agree that the victim did not throw any punches or even offer any real defense during the
second attack. (Transcript, page 23.) Further, Sergeant Petri stated that the offender had not been
charged with any crimes as a result of this incident. (Transcript, pages 23,24.)
The issue in this claim is whether or not the victim's conduct, including the telephone call he
made to arrange the fight between Christopher Stephens and Rick Zambito, as well as his conduct at
the scene of the fight, rises to the level of "contributory misconduct." Based upon the evidence
presented in this claim, the Court is of the opinion that the victim was guilty of contributory
W.Va. Code §14-2A-3(l) defines "Contributory misconduct" as "any conduct of the claimant,
or of the victim through whom the claimant claims an award, that is unlawful or intentionally tortious
and that, without regard to the conduct's proximity in time or space to the criminally injurious
conduct has causal relationship to the criminally injurious conduct that is the basis of the claim and
shall also include the voluntary intoxication of the claimant, either by the consumption of alcohol or
the use of any controlled substance when the intoxication has a causal connection or relationship to
the injury sustained. The voluntary intoxication of a victim is not a defense against the estate of a
Contributory misconduct includes conduct that is unlawful as well as that which is
intentionally tortious where the unlawful or intentionally tortious conduct has a causal relationship
to the criminally injurious conduct at issue. Under W.Va. Code §61-2-9(b), an assault occurs:
If any person unlawfully attempts to commit a violent injury to the person of another
or unlawfully commits an act which places another in reasonable apprehension of
immediately receiving a violent injury, he shall be guilty of a misdemeanor, and,
upon conviction, shall be confined in jail for not more than six months, or fined not
more than one hundred dollars, or both such fine and imprisonment.
An assault is also an intentional tort defined as an intentional act which places another in
reasonable apprehension of imminent harmful or offensive contact. W. Page Keeton Et. Al., Prosser
and Keeton On The Law Of Torts §10, at 43 & 44 (5th ed. 1984).
The evidence adduced at the hearing including the police report establishes that the victim,
at a minimum, committed the intentional tort of assault when he approached the offender, who was
in a fight with the victim's friend, and screamed obscenities at him while encouraging his friend to
keep punching the victim and to "kick his ass." It was reasonable for the offender under the
circumstances of this incident to have been in fear of imminent bodily harm from the victim.
Obviously, once the victim had walked away from the site of the first fight towards his vehicle, it
was not reasonable for the alleged offender to believe or fear that he was in imminent danger of
bodily harm and there is no way he could claim self-defense at that point.
The Court is not
condoning the alleged offender's conduct. Certainly, the alleged offender's actions were not
justifiable and he went well beyond his need of self defense. While the alleged offender's pursuit
and second attack upon the victim was unjustifiable, it is causally related to the first incident between
the victim and the alleged offender. If the victim had not made the initial assault upon the alleged offender, neither the first nor the second attack would have occurred. Thus, the Court is constrained
by W.Va. Code §14-2A-3(l) to deny an award in this claim based upon the victim's contributory
The Court will stand by its previous ruling; therefore, this claim must be, and is hereby,