IN THE COURT OF CLAIMS OF THE STATE OF WEST VIRGINIA
IN THE MATTER OF:
Claimant appeared in person and by counsel, Michael E. Froble, Attorney at Law.
Jennifer L. Stollings, Assistant Attorney General, for the State of West Virginia.
An application of the claimant, Michael Filie, for an award under the West Virginia
Crime Victims Compensation Act, was filed March 15, 2002. The report of the Claim
Investigator, filed September 5, 2002, recommended that an award of $25,000.00 be
granted, to which the claimant filed a response indicating his agreement. An Order was
issued on September 25, 2002, reversing the Investigator's recommendation and denying
the claim, in response to which the claimant's request for hearing was filed October 9,
2002. This matter came on for hearing March 27, 2003, claimant appearing in person and
by counsel, Michael E. Froble, and the State of West Virginia by counsel, Jennifer L.
Stollings, Assistant Attorney General.
On April 1, 2000, at approximately 12:30 a.m., the 32-year-old claimant was
assaulted and severely beaten twice while a patron of the Midnight Rodeo Bar in Huntington, Cabell County. The claimant testified that on that evening, his brother-in-law,
John Keaton, came to the claimant's place of employment at approximately 9:00 p.m. and
drove the two of them to the Midnight Rodeo Bar (Transcript, page 23). The claimant and
Mr. Keaton were meeting Filomena Keaton, who is claimant's sister and John Keaton's
wife, along with a few friends with whom she worked (Transcript, page 24). The claimant
stated that he had been to the Midnight Rodeo Bar only once before and that he did not
frequent bars often.
According to the claimant, they arrived at the Midnight Rodeo Bar at approximately
9: 15 p.m. (Transcript, page 25). They were seated at the bar on the first floor most of the
night and had a few drinks with a friend named Randy who happened to show up
(Transcript, page 25). The claimant stated that he had three Jim Beam's with Coke to drink
the entire evening and that he did not believe himself to be intoxicated or unable to control
himself (Transcript, page 26). He also stated that he ate dinner earlier that evening
between 8:15 p.m. and 8:30 p.m. before going to the bar (Transcript, page 23).
Upstairs at the bar were the claimant's sister and her coworkers, watching a male
strip show. The claimant and Mr. Keaton remained downstairs (Transcript, page 24). The
claimant recalled sitting at the bar with Mr. Keaton and Randy, but the next thing he
remembered about that evening was sitting in Mrs. Keaton' s vehicle seriously injured. He
believes that someone may have struck him in the back of the head with a "slap jack"
because the cuts on the back of his head were consistent with such a weapon (Transcript,
page 27). The claimant testified that he must have lost consciousness at some point either
inside the bar or outside, but he thought it was inside the bar because that was the last
place he remembered being until briefly regaining consciousness in his sister's car (Transcript, page 28). He did not recall having an argument or disagreement with anyone
inside the bar and that to do so is not consistent with his temperament (Transcript, page
Filomena Keaton testified that she was on the second floor of the bar most of the
night with her friends from work. She stated that she saw the claimant and Mr. Keaton
sitting at the bar downstairs together most of the night, and that she saw absolutely no
conflicts of any type until she was getting ready to leave (Transcript, page 5). Mrs. Keaton
testified that she walked downstairs and briefly spoke to the claimant prior to the
altercations. According to Mrs. Keaton, the claimant was coherent, able to talk, and did not
appear to be intoxicated (Transcript, page 7). Mrs. Keaton testified that she had consumed
approximately "three shots" of tequila the entire evening. She was getting ready to leave
the bar and walked downstairs to the lower level to talk to the claimant when she saw that
he was no longer on the bar stool (Transcript, page 7). She testified that the claimant and
her husband were getting ready to leave and both had walked out to the car. Mrs. Keaton
remained inside talking to a friend but was preparing to leave (Transcript, page 8). At this
time, the claimant came back inside and asked who a person named Daniel was. She
pointed him out to the claimant (Transcript, page 8), who then walked over to Daniel to
speak to him. Mrs. Keaton turned around to tell her friend she was leaving when suddenly
some type of commotion caught her attention (Transcript, page 8). She testified that there
was a large circle of people standing around a number of people in the floor. She stated
that "everybody was pushing, shoving, hitting, screaming" (Transcript, page 8). However,
Mrs. Keaton did not see the actual fight inside, nor did she know who attacked her brother.
She stated that by the time she turned around and saw her brother, the fight was over (Transcript, page 15). The next thing she recalls doing was wiping the blood off her
brother's face and trying to stop the bleeding (Transcript, page 10). She stated that the
claimant's entire face was covered in blood and that she was unable to get it to stop.
Shortly after the altercation, Mrs. Keaton helped the claimant out the door and to the car
(Transcript, page 10). Once they reached the car, Mr. Keaton was shocked to see the
claimant's injuries and got out of the car to see what had occurred (Transcript, page 10).
According to Mrs. Keaton, Mr. Keaton walked over to talk to Frank White, whom Mrs.
Keaton described as an old friend of Mr. Keaton's, to ask him if he knew what happened
(Transcript, page 11). She testified that Mr. Keaton was persistent in asking Frank White
what happened and who attacked the claimant (Transcript, page 11). At this point, she
stated that another fight broke out outside the Midnight Rodeo Bar and that people were
"everywhere" (Transcript, page 11). She also stated that the claimant ended up getting
involved in this fight. She observed someone named Marcus hitting the claimant
(Transcript, page 11). She did not know Marcus' last name. The next thing she noticed was
the large crowd slowly clearing away and the claimant lying on the ground unconscious and
making "snoring respirations" (Transcript, page 12). She knew at that time that he had a
head injury (Transcript, page 12). Mrs. Keaton went to the hospital with the claimant but
she stated that no one from the Huntington Police Department took a statement from her
(Transcript, page 13). Mrs. Keaton testified that she is aware that Frank White is the only
person to be prosecuted for the attack upon the claimant, but she has no information
regarding the person she identified as Marcus (Transcript, page 13). Finally, Mrs. Keaton
testified that she did not see nor hear the claimant hit or physically attack anyone the entire
night (Transcript, page 15). It was her contention that the claimant did not do anything to instigate the attacks upon himself (Transcript, page 16).
Christopher Allen Hysell, a friend of the claimant's, testified that on the night at issue
he and a few friends happened to be driving by the Midnight Rodeo Bar at approximately
2:00 a.m. (Transcript, page 17). He and his friends had been somewhere else that night
and were not going to stop at the Midnight Rodeo Bar, until Mr. Hysell looked at the parking
lot and saw Michael Filie lying on the ground surrounded by approximately twenty guys
(Transcript, page 18). He testified that he saw a person he knows only as "Marcus" hitting
claimant, who was unconscious on the ground.
The claimant testified that he does not recall why he wanted to speak to Daniel or
what they spoke about (Transcript, page 32). He stated that all he knows is that he had met
Daniel earlier in the evening and talked to him (Transcript, page 32). He does not know
Daniel's last name. All he knew about Daniel was that he worked with his sister at the
hospital, and to the best of his knowledge they were probably talking about their job
(Transcript, page 39). The claimant also believes that it was during this conversation inside
the bar that he was first attacked (Transcript, page 39). He does not recall anything bad
happening between himself and Daniel, and recalls getting along well with him. Neither
does he believe that his conversation with Daniel was the cause of the attack or
precipitated it in anyway (Transcript, page 39). At the time the claimant completed his
"Crime Victims Compensation Fund" application, he stated that the suspect offenders who
attacked him were bouncers employed by the Midnight Rodeo Bar. At that time, he
believed that the two attackers' names were Frank White and Marcus (Transcript, page
39). However, the claimant testified that he later discovered at the deposition of Johnny
Ray Rice, owner of the Midnight Rodeo Bar, that there were no bouncers on duty that night and that neither Frank White nor a person named Marcus was present at the bar that night
(Transcript, pages 35-36). Thus, the claimant does not know who attacked him or why. The
claimant regained his memory four days after the incident while in Cabell Huntington
Hospital. As a result of the two attacks, Mr. Filie suffered broken facial bones, a broken
jaw, and serious and frequent headaches. He also sustained inner ear damage (Transcript,
By Order entered September 25, 2003, the Court did not accept the original findings
of the Claim Investigator and denied the claim due to the vague nature of the facts giving
rise to the incident. The Court stated in that Order that the claimant's actions prior to the
altercation are unknown and that the Court cannot engage in speculation as to what in fact
Nicole Reed, Assistant Claim Investigator for the West Virginia Crime Victims
Compensation Fund, testified that she assisted in writing the original recommendation
(Transcript, page 42). She testified that she was asked by the Court to contact the
Huntington Police Department and attempt to find out more information and gain additional
insight into how this incident occurred (Transcript, page 47). The police report gave only
vague and generalized information. However, upon calling the Huntington Police
Department, Ms. Reed was informed that the investigating officer had since left the
Department and could not be reached. Stephanie Knight, Claim Investigator for the West
Virginia Crime Victims Compensation Fund, testified that her initial Finding of Fact and
Recommendation granting claimant an award was denied by the Court due to the
vagueness of the facts. She testified that her responsibilities in determining the merits of
a claim include reviewing the claimant's application form, the police report, the medical records, medical bills, and court records (Transcript, page 62).
In a claim for compensation under the Crime Victims Compensation Act, a claimant
has the burden of proof in establishing that he or she is an "innocent victim of crime."
Once a claimant has established that he or she is an innocent victim of crime under the
statute, then the burden of proof shifts back to the respondent to prove by a
preponderance of the evidence that the claimant was not an innocent victim of crime.
In the present claim, the claimant established at the hearing that he was brutally
attacked and beaten twice by at least one assailant. Further, the testimony adduced at the
hearing established that the claimant did not provoke nor cause the two altercations. Thus,
the Court is of the opinion that the claimant is an innocent victim of crime. Respondent
failed to adequately rebut the claimant's evidence and did not establish that he caused or
contributed to the altercations at issue.
In view of the foregoing, the Court is of the opinion to and does hereby make an
award in this claim in the amount of $25,OOO.OO as set forth in the original Finding of
Fact and Recommendation.