IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA


IN THE MATTER OF:


Clarence Childers


(CV-03-74)


O R D E R



Claimant appeared in person.

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


BAKER, JUDGE:
An application of the claimant, Clarence Childers, for an award under the West Virginia Crime Victims Compensation Act, was filed February 18, 2003. The report of the Claim Investigator, filed July 31, 2003, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on September 23, 2003, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed October 1, 2003. This matter came on for hearing November 20, 2003, the claimant appearing pro se and the State of West Virginia by counsel, Benjamin F. Yancey, III, Assistant Attorney General.
On December 12, 2002, the 31-year-old claimant was the victim of criminally injurious conduct in Fort Gay, Wayne County. He was visiting the residence of Lonnie Taylor when he was stabbed by Lonnie's brother, McKinley Taylor.
The claimant testified at the hearing that on the day in question he "was at that place and I was drinking but as I was getting ready to leave, the person that done it just started stabbing me in the back." (Transcript, page 5.) When questioned about the amount of alcohol he had consumed that day, the claimant replied, "a case maybe, maybe not even a case of beer" from about "ten to eleven until that took place...around six or seven in the afternoon." (Transcript, pages 7-8.)
The claimant was asked what happened to the assailant, McKinley Taylor. He replied, "The city cop there asked me if I wanted to press charges. I didn't remember talking to him 'cause I was out of it so he never did do nothing." (Transcript, page 8.) The claimant added that the assailant was "caught over in Kentucky...with a gun." (Transcript, page 8.)
Upon cross-examination, the claimant was asked who was present at the trailer. He stated that Lonnie Taylor, two of his brothers, and Lonnie's daughter, Rita Caudle were there. (Transcript, pages 10-11.) The claimant revealed that McKinley Taylor was dancing with Rita, his niece, when the claimant made a joke about inbreeding. (Transcript, page 11.) McKinley Taylor then stated that if the claimant had a problem he could go outside. (Transcript, page 12.) As the claimant was attempting to leave, he was stabbed in the back by McKinley Taylor. (Transcript, page 12.)
No one appeared to testify on behalf of the State.
It is undisputed that the claimant was injured as the result of criminal conduct, and that the incident was timely reported to the authorities. The question before this Court is whether the claimant's own actions amounted to "contributory misconduct" such as to justify a reduction or denial of an award of compensation.
"Contributory misconduct" is defined in W.Va. Code §14-2A-3(l) as "any conduct of the claimant...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... ." According to the claimant's own testimony, he consumed nearly a case of beer on the day of the assault, starting at 10:00 or 11:00 a.m. Medical records indicate that his blood alcohol level was .22.
T he Court finds that the claimant's actions in this matter did constitute contributory misconduct. He had begun drinking early in the day, his blood alcohol level was over twice the legal limit in West Virginia, he made untoward remarks to the offender, and he admitted to being unaware of his surroundings ("out of it") when questioned by the police. This behavior, causally related to the claimant's injuries, is the basis for denial of an award under W.Va. Code §14-2A-14.
Accordingly, th e Court is constrained by the evidence to stand by its previous ruling and deny the claim.


ENTER: _____________________________________________
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JUDGE