IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


IN THE MATTER OF:


Robert Lee Moore


(CV-02-406)


O R D E R




Claimant appeared in person.

Joy M. Bolling, Assistant Attorney General, for the State of West Virginia.



GRITT, JUDGE:
An application of the claimant, Robert Lee Moore, for an award under the West Virginia Crime Victims Compensation Act, was filed October 7, 2002. The report of the Claim Investigator, filed December 13, 2002, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on January 29, 2003, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed February 18, 2003. This matter came on for hearing June 27, 2003, claimant appearing pro se and the State of West Virginia by counsel, Joy M. Bolling, Assistant Attorney General.
On July 1, 2002, the 35-year-old claimant was the victim of alleged criminally injurious conduct in Dunbar, Kanawha County. While riding as a passenger in his car, the claimant alleges that he was beaten in the head by Chad Dawson. However, the police report prepared by a Kanawha County Sheriff's Deputy indicates that the claimant voluntarily stepped out of a moving vehicle and struck his head on the ground.
This claim was initially denied on the basis that the claimant was not a "victim of criminally injurious conduct". Nothing adduced at the hearing convinces this Court otherwise. The Court is constrained by the evidence to affirm the original Order finding that there was no evidence of criminally injurious conduct.
The claimant testified at the hearing of this matter regarding the circumstances surrounding the incident. According to the claimant, he, a former girlfriend named Belinda Williams, and Chad Dawson were on their way back from a camping trip at his father's camp along the Williams River. (Transcript, page 7.) The claimant stated that he was a back-seat passenger and Belinda Williams was driving his vehicle. He claims that an argument ensued as they were traveling on I-77. (Transcript, page 7.) According to the claimant, Ms. Williams refused to take him home for reasons not known by the Court. She only agreed to take him to his cousin's house in Dunbar. (Transcript, page 7.) The claimant testified that she exited I-77 at Sissonville, at which time the claimant leaned up from the back seat and turned the key in an attempt to shut the car off. (Transcript, page 8.) However, he was unable to get the keys out of the ignition. Eventually, the car came to a stop and all parties got out of the vehicle. (Transcript, page 8.) The claimant stated that while all three occupants were outside the vehicle, Chad Dawson began "cussing" him. (Transcript, page 8.) After this, all that the claimant recalls is getting back into the car. (Transcript, page 9.) He has no memory of what occurred after this. He believes that while in the car he was struck in the head with a Craftsman ratchet tool which knocked him unconscious. (Transcript, page 5.) The claimant believes that Chad Dawson was the individual who intentionally struck him in the head and that Belinda Williams planned the attack and told Chad Dawson to do it. (Transcript, page 5.) Further, the claimant testified that Ms. Williams planned the attack on him because she wanted his property and vehicle. (Transcript, page 4.)
The claimant did not present any independent eyewitnesses testimony. He admitted there were no other witnesses who saw the incident. The only thing he knows about being beaten up comes from information provided by a person whose name he does not know, and who allegedly got the information from Chad Dawson, while Mr. Dawson was drunk. (Transcript, page 5.) Claimant's father, John Moore, also testified at the hearing. He stated that the claimant received a serious head injury and was hospitalized as a result. However, he was only able to speculate as to the cause of his son's injuries, because he was not at the scene of the incident. (Transcript, page 15.)
W.Va. Code §14-2A-3(k) defines a "victim" as a person who suffers personal injury or death as a result of any one of the following: (1) Criminally injurious conduct; (2) the good faith effort of the person to prevent criminally injurious conduct... ." W.Va. Code § 14-2A-3(c) defines "criminally injurious conduct" in part as: "conduct that occurs or is attempted in this state or in any state not having a victim compensation program which by its nature poses a substantial threat of personal injury or death, and is punishable by fine or imprisonment or death.... . Criminally injurious conduct does not include conduct arising out of the ownership, maintenance or use of a motor vehicle, except when the person engaging in the conduct intended to cause personal injury or death, or except when the person engaging in the conduct committed negligent homicide, driving under the influence of alcohol, controlled substances or drugs, or reckless driving."
In the present case, the Claim Investigator's finding was that the claimant was not the "victim" of "criminally injurious conduct". Therefore, it is the claimant's burden to prove by a preponderance of the evidence that he was the "victim" of "criminally injurious conduct". The Court is of the opinion that he did not meet his burden of proof. First, the police report from the Kanawha County Sheriff's Department, which was part of the Claim Investigator's original findings, indicated that the claimant was injured when he opened the door of a moving vehicle, stepped out, and fell to the ground striking his head. Second, the claimant presented no independent eyewitnesses to testify that he was a victim of criminally injurious conduct. The claimant was only able to testify that he was told by a third party, whose name he could not recall, that Chad Dawson beat him up. This is hearsay, vague, and very speculative in nature. For the Court to grant an award, it would have to speculate as to how the claimant was injured. This Court has consistently held that it will not engage in mere speculation to determine exactly what did occur in a claim. In re Smith, CV-89-10 (1989).
The Court is constrained by the evidence to stand by its previous ruling; therefore, this claim must be, and is hereby, denied.



ENTER: _____________________________________________
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JUDGE