IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


IN THE MATTER OF:


Vicki R. Laughlin


(CV-03-478)


O R D E R



Claimant appeared in person and by counsel, Michael T. Clifford.

Benjamin F. Yancey, III, Assistant Attorney General, for the State of West Virginia.


GRITT, JUDGE:
An application of the claimant, Vicki R. Laughlin, for an award under the West Virginia Crime Victims Compensation Act, was filed September 15, 2003. The report of the Claim Investigator, filed April 13, 2004, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on June 23, 2004, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed October 29, 2004. This matter came on for hearing February 16, 2005, the claimant appearing in person and by counsel, Michael T. Clifford, and the State of West Virginia by counsel, Benjamin F. Yancey, III, Assistant Attorney General.
On January 19, 2002, Raymond Jason Gill, the 20-year-old son of the claimant, was the victim of criminally injurious conduct in Kanawha County. Mr. Gill had met with offenders John Frye and Bradley Hacker, who shot Mr. Gill in the head, fatally wounding him. Mr. Frye pleaded guilty to first- degree murder. A jury found Mr. Hacker guilty of first-degree murder in the commission of first-degree robbery and possession with intent to deliver a controlled substance.
The claimant testified at the hearing of this matter that on the evening in question, her son had left their home sometime between 7:00 p.m. and 7:30 p.m. She stated that her daughter saw Mr. Gill get into a car with the offenders at around that time. Ms. Laughlin stated that her son was shot in the back of the head by the offenders who then buried him in a shallow grave and attempted to cremate him. She stated that the offenders had robbed Mr. Gill of $8,000.00. The claimant testified that she knew that her son occasionally smoked marijuana. She also stated that she had found a large sum of money in her son's room several weeks prior to the incident. Ms. Laughlin told police that she suspected her son of selling marijuana because of the large amount of money that she found, but that she had no proof of it. She also testified that a friend of her son's had later told her that Mr. Gill had gone to Virginia the night of his murder to buy marijuana.
W. Va. Code §14-2A3(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 Claim Investigator's original finding was that the claimant was guilty of contributory misconduct within the meaning of the statute. The original Order upheld the Claim Investigator's finding, disallowing the claim. Thus it became the claimant's burden to prove by a preponderance of the evidence that her son was not guilty of contributory misconduct. The Court is of the opinion that she did not meet this burden. There was no evidence produced at hearing that the victim was not smoking marijuana or that he was not involved in a drug transaction. Since there was no evidence presented that the victim was not guilty of contributory misconduct, the Court must deny this claim.
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