IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
IN THE MATTER OF:
Andrew J. Cole
O R D E R
Claimant appeared in person.
Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
An application of the claimant, Andrew J. Cole, for an award under the West Virginia Crime
Victims Compensation Act, was filed February 10, 2005. The report of the Claim Investigator, filed
July 25, 2005, recommended that no award be granted, to which the claimant filed no response. An
Order was issued on September 26, 2005, upholding the Investigator's recommendation and denying
the claim, in response to which the claimant's request for hearing was filed October 3, 2005. This
matter came on for hearing March 29, 2006, claimant appearing pro se and the State of West Virginia
by counsel, Benjamin F. Yancey III, Assistant Attorney General.
On November 6, 2004, the 42-year-old claimant was the victim of criminally injurious
conduct in Huntington, Cabell County. The claimant was assaulted by the offender, Mel Davis.
The claimant, who is hearing-impaired, testified with the assistance of Natalie Bridges. The
claimant stated that on the day in question, he observed a man about to strike his neighbor, a handicapped woman. The claimant stepped onto his porch and said, "Hey, don't you hit that woman."
The offender was happening by, heard the claimant, and asked to whom he was speaking. The
claimant replied, "Your stepfather." The offender advised the claimant to mind his own business.
An hour later, the claimant came out of his residence to go to the store. That is when he was
attacked by Mr. Davis, who knocked him to the ground and beat him, breaking his hearing aid.
The claimant testified that he filed charges against Mr. Davis, who was sentenced to 48 hours
The initial denial of an award in this claim was based on the finding that the incident was not
reported to law enforcement officials within 72 hours as mandated by W.Va. Code §14-2A-14(b), nor
was there "good cause" for such failure to report.
The claimant explained that since he has difficulty hearing, he asked his friends to call the
police for him. The record indicates that the incident was reported six days later. The claimant
stated, "That I can't explain... I did file." The claimant testified that he was told, "It's under
In the present case, the Claim Investigator's finding was that the claimant did not report the
crime to the police within seventy-two hours after the crime occurred. Therefore, it is the claimant's
burden to prove by a preponderance of the evidence that "good cause existed for the failure to report
the conduct within the seventy-two hour period." The Court is of the opinion that the claimant has
met this burden.
The Court is constrained by the evidence to grant an award for the claimant's damaged
hearing aid in the sum of $1,350.00 as documented. Should it later be determined that an additional
expense related to the cost of the device is warranted, a supplemental award may be granted by the
Court at that time.
Beltone Hearing Aid Centers
601 Sixth Ave.
Huntington WV 25718