
    
      OPINION ISSUED APRIL 28, 2006
    
    
      Andrew J. Cole
    (CV-05-84)
    Claimant appeared in person.
    Benjamin F. Yancey III, Assistant Attorney General, for the State of West Virginia.
   ORDER

SAYRE, JUDGE:

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 in jail.

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 investigation.”

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

FEIN: 55-0483590

SI,350.00  