Tommy Lee Gravely



Claimant appeared in person and by counsel, Gloria M. Stephens.

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

An application of the claimant, Tommy Lee Gravely, for an award under the West Virginia Crime Victims Compensation Act, was filed July 14, 1999. The report of the Claim Investigator, filed January 7, 2000, recommended that an award be granted. An Order was issued on February 8, 2000, overruling the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed February 28, 2000. This matter came on for hearing June 24, 2004, the claimant appearing in person and by counsel, Gloria M. Stephens, and the State of West Virginia by counsel, Benjamin F. Yancey, III, Assistant Attorney General.
On June 7, 1999, the 44-year-old claimant was the victim of criminally injurious conduct in Kyle, McDowell County. The claimant was entering the downstairs apartment of the house he lived in when he was struck in the head with a brick.
The claimant testified at the hearing of this matter that on the afternoon in question, he had gone to a cookout at his brother-in-law's house located next to his residence. The claimant testified that he left for home at around 11:00 p.m. The claimant's residence is a two-story house where the only access to the lower level from the upper level is from the outside and down some steps. The claimant lived on the top floor, while the offender, Victor Anthony, lived on the bottom floor. Mr. Anthony had lived in the downstairs of the shared house for about a month and a half. After the claimant returned home, Mr. Anthony took a broom handle and hit the ceiling; the claimant testified that whenever Mr. Anthony did this, he or his girlfriend would carry food down to him. On the night of the incident herein, Mary Rickman, the claimant's girlfriend, told the claimant that she had already taken food down to Mr. Anthony, but she would make something else. The claimant took the food downstairs, announced that he was coming in, and opened the door. As soon as the door was opened, Mr. Anthony hit the claimant in the head with a brick. Mr. Anthony then started banging the claimant's head against the concrete wall. The claimant testified that Mr. Anthony was charged with malicious assault as a result of the incident.
Mary Rickman, the claimant's girlfriend, found the claimant in the downstairs area of the house after the incident. Ms. Rickman testified that earlier that night, she had taken Mr. Anthony some food and he appeared to be fine. At approximately 11:00 p.m., the claimant came home, and Ms. Rickman stated that a few minutes after he arrived, Mr. Anthony pounded on the floor. Ms. Rickman then made some food for the claimant to take downstairs, and then lay down to sleep. After a while, she was awakened by her dog. Smelling gasoline in the house, she got dressed and went outside. Ms. Rickman testified that she saw Mr. Anthony running in the road. She asked him where the claimant was, but received no answer. Ms. Rickman then proceeded downstairs to find the door open and the light on. She saw a cinder block in front of the door with blood all over it. Ms. Rickman then found the claimant behind the door. She proceeded to his mother's house and dialed 911.
As a result of the attack, the claimant suffered facial and head injuries.

W.Va. Code §14-2A-3(c) states, in part: " 'Criminally injurious conduct' means conduct that occurs or is attempted in this state ... which by its nature poses a substantial threat of personal injury or death, and is punishable by fine or imprisonment or death..."
W. Va. Code §14-2A-3(l) states, in part: " 'Contributory misconduct'... 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."
In the present case, the Claim Investigator's finding was that the claimant was an innocent victim of a crime that falls under W. Va. Code §14-2A-3(c). The original Order in this matter took exception to the Claim Investigator's findings, stating that the claimant tested positive for cocaine and had a high blood alcohol count, as was found in the lab report. The Court, in its original Order, found that the claimant was guilty of contributory misconduct, and directed that no award be made. Thus it became claimant's burden to prove by a preponderance of the evidence that he was in fact an innocent victim of crime. The claimant testified that he had not used any drugs on the night of the incident and that he had had only one beer. Ms. Rickman testified that she did not think that he had been drinking that night at all. In the light of the evidence put forth by the claimant, the Court is of the opinion that the claimant met his burden of proof. The evidence adduced at the hearing of the matter establishes that the claimant had a blood alcohol level of .20, and a urine test showed positive for cocaine. There is no indication in the medical records as to what the level of cocaine may have been. It might have been minuscule or it might have been quite elevated. This Court certainly does not condone the use of any illegal drug. His blood alcohol level was definitely elevated. While the medical evidence does lead the Court to question the credibility of two of the witnesses on this point the claimant did provide an additional witness, Walter F. Martin, the Claim Investigator. The Court finds Mr. Martin's testimony to be quite credible. The Court further finds that although the claimant may well have been intoxicated by alcohol and cocaine, there is no evidence to show that the intoxication had any "causal connection or relationship to the injury sustained." W.Va. Code §14-2A- 3(l).
The Court is constrained by the evidence to reverse its previous ruling and find that there was in fact no contributory misconduct on the part of the claimant. An award is therefore granted for the claimant's unreimbursed medical expenses and work loss in the sum of $3,038.68 as set forth in the Claim Investigator's memorandum of January 31, 2000. Should the claimant later submit documentation of any additional unreimbursed allowable expenses relating to this incident, they will be reviewed by the Court at that time.

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