IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
IN THE MATTER OF:
Beau J. Miller
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, Beau J. Miller, for an award under the West Virginia Crime
Victims Compensation Act, was filed April 14, 2005. The report of the Claim Investigator, filed July
14, 2005, recommended that an award of $13,042.62
be granted, to which the claimant filed a
response in agreement. An Order was issued on July 29, 2005, overturning the Investigator's
recommendation and denying the claim, in response to which the claimant's request for hearing was
filed August 30, 2005. This matter came on for hearing March 29, 2006, the claimant appearing in
person, and Assistant Attorney General Benjamin F. Yancey, III, for the State of West Virginia.
On January 14, 2005, the 23-year-old claimant was the victim of criminally injurious conduct
in Huntington, Cabell County. The claimant was exiting a restroom when the offender, Roscoe
Smith, struck him from behind.
This Court's initial denial of an award was based on the Court's finding that the claimant was not an innocent victim of crime. W. Va. Code §14-2A-3(1) states: " 'Contributory misconduct'
means 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, 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 claimant testified at the hearing of this matter that on the evening of the incident he had
been at a "Tough Man" contest in Huntington, watching a friend compete. After his friend's match,
the claimant went to the restroom. His friend was having an argument just outside the bathroom with
Roscoe Smith. The claimant walked over to his friend but did not say anything. When the claimant
walked back out of the bathroom, he was struck in the jaw by Mr. Smith. The claimant testified that
he went to the ground with Mr. Smith, trying to defend himself. As the claimant was getting up to
get away from the offender, he was struck at the base of the skull and knocked out. The claimant
landed face-first on the floor. He suffered a closed head injury, damage to his teeth, and a nose
laceration. According to the medical records, the claimant's blood alcohol content was .224%. The
claimant testified that he had been drinking a significant amount, having had seven or eight beers at
the event and several prior to the contest.
The Claim Investigator's original finding was that the claimant was an innocent victim of
criminally injurious conduct within the meaning of the statute. The original Order overturned the
Claim Investigator's finding, disallowing the claim. Thus it became the claimant's burden to prove
by a preponderance of the evidence that he was not guilty of contributory misconduct. The Court is
of the opinion that he did meet this burden. There was a lack of evidence that the claimant did anything to provoke the offender. However, the Court is of the opinion that the claimant was
intoxicated at the time of the incident, and that he was at least to some degree guilty of contributory
misconduct. W. Va. Code §14-2A-14(f)
states, in part: "The judge or commissioner shall reduce an
award of compensation or deny a claim for an award of compensation ... if the reduction or denial is
determined to be reasonable because of the contributory misconduct of the claimant... ."
The Court finds that there was contributory misconduct of forty percent (40%) on the part of
the claimant. Therefore, an award in the sum of $7,825.57, representing sixty percent (60%) of the
claimant's unreimbursed allowable medical expenses is hereby granted as set forth in the Claim
Investigator's memorandum of May 15, 2006.