Kathryn Evans



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 contributory misconduct.
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 misconduct.

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 deceased victim."

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 misconduct.
The Court will stand by its previous ruling; therefore, this claim must be, and is hereby, denied.

ENTER: ____________________________________________________