Lana Graley

(CV-01-083 )


Claimant appeared in person and by counsel, Timothy P. Lupardus, Attorney at Law.

Doren C. Burrell, Senior Assistant Attorney General, for the State of West Virginia.

An application of the claimant, Lana (Blankenship) Graley, for an award under the West Virginia Crime Victims Compensation Act, was filed March 12, 2001. The report of the Claim Investigator, filed July 10, 2001, recommended that no award be granted, to which the claimant filed no response. An Order was issued on August 9, 2001, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed August 22, 2001. This matter came on for hearing November 14, 2003, claimant appearing in person and by counsel, Timothy P. Lupardus, Attorney at Law, and the State of West Virginia by counsel, Doren C. Burrell, Senior Assistant Attorney General.
On or about November 10, 2000, the claimant's 19-year-old son, Nicholas J. Huff, was fatally stabbed by John Ray Belcher in Hanover, Wyoming County. The offender was indicted for first- degree murder. He was found guilty of voluntary manslaughter and is currently serving a prison sentence.
The basis for the initial denial of the claim was the victim's contributory misconduct. The Claim Investigator determined from the police report and statements from witnesses that the victim had been drinking alcoholic beverages while underage, and that he had provoked the alleged offender into a fight. It was the Claim Investigator's opinion that these actions contributed to his death.
Sergeant Will Hall of the Wyoming County Sheriff's Department testified at the hearing of this matter. He investigated the murder of Nicholas Huff which occurred on the date in question at approximately 11:30 p.m. at the residence of Timmy Cline, age twenty-two. According to Sergeant Hall's investigation, there was a party at Timmy Cline's residence that evening with nine people present. (Transcript, pages 38-39.) Tina Clower and her two daughters lived at Timmy Cline's residence and were all present. Tina Clower was thirty-seven years old at the time of this incident. Her oldest daughter, Crystal Clower, was sixteen or seventeen years old. Kandace Clower, the youngest daughter, was fourteen. Also in attendance were Alex Morgan, age twenty-four, Jeremy Rowe, age nineteen, Bobby Cline, age eighteen, and the victim Nicholas Huff, age nineteen. (Transcript, page 25.) All of these individuals knew each other and had been friends for a long time (Transcript, page 25.) Sergeant Hall also determined during his investigation that everyone at the party was consuming alcoholic beverages with the exception of Crystal Clower and Kandace Clower. In addition, there were at least three persons including the victim who were drinking alcohol while underage. The offender, John Ray Belcher, age twenty-seven, arrived at the party alone and brought his own twelve-pack of beer (Transcript, page 47.) Mr. Belcher is related to Bobby Cline and Timmy Cline. (Transcript, page 25.) According to Sergeant Hall's investigation, the incident began when John Ray Belcher said something to Kandace Clower that upset her and resulted in an argument. (Transcript, pages 33-34.) Kandace Clower became upset and began crying. She went to her bedroom and lay on her bed (Transcript, page 34.) The victim, Nicholas Huff, went back to the bedroom to see if she was all right (Transcript, page 34.) The offender then came to the bedroom and stood at the door. The victim asked him what he had said or done to Kandace Clower to make her so upset. (Transcript, page 34.) The offender became angry and replied by yelling at the victim that he did not do anything to her. At this point, Alex Morgan and Jeremy Rowe came back to the bedroom to see why there was yelling between the victim and the offender. (Transcript, page 34.) According to a statement obtained by Sergeant Hall from Alex Morgan, the offender grabbed the victim by the shirt and started shoving him. (Transcript, page 34.) The victim told the offender that he did not want to fight in the house but that if the offender wanted to fight they could take it outside. (Transcript, page 34.) The verbal altercation evolved into a physical altercation once the victim and the offender went outside. (Transcript, page 35.) Sergeant Hall testified that it was never established during the investigation when or from which part of the house the offender obtained a "grill fork." (Transcript, page 35.) However, Sergeant Hall testified that Timmy Cline made a statement during the investigation that the offender stuck the grill fork in his back pocket while walking outside. (Transcript, page 41.) He testified that he obtained a statement from Alex Morgan that the offender and the victim began fistfighting once they were outside. In addition, Alex Morgan stated that he saw the offender reach around to his back pocket and pull something out which he raised up and struck the victim with in the side near his lungs. According to Alex Morgan's statement to Sergeant Hall, he ran to help get the offender off of the victim and when he did so, the offender stood up, drew back, and swung the weapon at him striking him in the back but causing little injury. Jeremy Rowe, an eyewitness, made a statement to Sergeant Hall that he saw the offender and victim fistfighting outside when suddenly, the offender pulled out a "turkey fork" and stabbed the victim in the left portion of his chest. Jeremy Rowe corroborated Alex Morgan's statement to Sergeant Hall. Jeremy Rowe informed Sergeant Hall that Alex Morgan tried to help the victim from being stabbed again, and that the offender tried to stab Mr. Morgan. According to Sergeant Hall's investigation, Jeremy Rowe struck the offender at this time causing him to drop the fork. After the victim was stabbed, Alex Morgan and Jeremy Rowe fought the offender forcing him to retreat inside the house. (Transcript, pages 42-43.)
Further, Sergeant Hall obtained a statement from Bobby Cline that he observed the offender pull out "the fork" and stab the victim near his ribs. A number of people called 911 and the victim was taken by ambulance to the hospital where he was pronounced dead. The Medical Examiner's report indicated that the victim had died as the result of a double stab wound to the left portion of his chest which was consistent with a single thrust of a "barbecue fork." The Medical Examiner's report also indicated that the path of the stab wound was "front to back, left to right and upwards," and approximately two and one-half inches deep. Further, the report indicated that the victim had a blood alcohol content of 0.09% and that he tested positive for "past marijuana use," which means that the victim had not been using marijuana on the night of the incident. (Transcript, pages 45-49). While Sergeant Hall testified that the victim was underage and tested positive for alcohol, he was not intoxicated. (Transcript, page 46.) The blood alcohol content presumption for intoxication is .10% which the victim had not reached. (Transcript, page 46.) However, Sergeant Hall said that he did believe that alcohol consumption played a significant role in the events that occurred that night. (Transcript, page 47.) In his opinion, alcohol consumption in general creates a heightened chance of a fight occurring because it can make some individuals more aggressive. (Transcript, page 48.) He testified that the offender appeared to be intoxicated and that his intoxication played a role in his actions. (Transcript, pages 48-49.) However, he did not find any evidence to suggest that alcohol played a role in the victim's behavior. (Transcript, page 48.) It was Sergeant Hall's determination that the victim did not at any point start a fight or act as the aggressor. (Transcript, page 35.) It was determined by Sergeant Hall that John Ray Belcher was the aggressor. (Transcript, page 35.) Kandace Clower testified at the hearing that people began gathering at Timmy Cline's house at approximately 10:00 p.m. or 11:00 p.m. for a party. (Transcript, page 24.) She indicated that everyone at the party was drinking except for her and her sister. She stated that John Ray Belcher was drinking beer and seemed to be drunk. (Transcript, page 14.) In addition, she stated that he was mad and demonstrating a bad temper that evening. (Transcript, page 14.) According to Kandace, the offender approached her and began making hateful and derogatory comments that upset her. (Transcript, page 8.) He told her that he was her real father and that she was hanging out with the wrong crowd. (Transcript, page 9.) As a result, Ms. Clower became very upset and began crying. (Transcript, page 10.) She corroborated earlier testimony from Sergeant Hall that she went to her bedroom and lay on her bed. (Transcript, page 10.) According to Ms. Clower, she and the victim had been talking earlier along with all the other guests at the house that evening. (Transcript, page 10.) In addition, she stated that the victim was being nice and considerate when he went to her bedroom and asked if she was all right. (Transcript, page 10.) However, the next thing she noticed was the offender standing at her bedroom door. (Transcript, page 10.) Ms. Clower testified that the victim simply asked John Belcher what he did to make her cry. The offender responded by yelling at the victim and cursing at him saying that he did not do anything to her (Transcript, page 10.) Ms. Clower testified that the offender continued yelling and acting aggressively towards the victim and asked him if he wanted to fight (Transcript, page 10.) The victim told John Belcher that if he wanted to fight, they should go outside and not fight in the house (Transcript, page 10.) According to Ms. Clower, John Belcher aggressively started after the victim as if he was going to hit him (Transcript, page 11.) However, Alex Morgan and Jeremy Rowe held the offender to prevent him from attacking the victim (Transcript, page 10.) Ms. Clower also stated that in order for the victim to exit her bedroom at that time, he would have had to have walked past the offender, and he would have been forced to leave her alone with the offender (Transcript, page 12.) According to Ms. Clower, all the parties left her bedroom shortly after these events and she watched them walk down the hallway (Transcript, page 12.) She did not see or hear anything else until her sister came running back inside to tell her that the offender and the victim were outside fighting (Transcript, page 13) She ran outside and observed the victim leaning against a car and heard him say that he had been stabbed (Transcript, page 13.) Further, Ms. Clower testified that earlier in the evening the offender was having a bad argument with a girl on the telephone and was yelling at her (Transcript, page 30.) She believes that this argument made him angry and put him in a violent and aggressive mood (Transcript, page 29.) In addition, she stated that the offender had a romantic interest in her sister, despite the fact that she was underage (Transcript, page 29.) According to Ms. Clower, the offender was mad and jealous because she and her sister were talking to other guys at the party (Transcript, page 29.) However, she also stated that the offender was not in any way dating her sister (Transcript, page 30.) Thus, she did not understand why the offender took such an interest in whom she and her sister were talking to that evening, nor could she state why he yelled at her. (Transcript, page 30.) Further, she testified that the victim did not do anything to the offender all evening and that the offender was the aggressor between the two. (Transcript, page 9.) Ms. Clower also testified that the victim did not seem to be drunk, and none of his conduct appeared to be the result of alcohol consumption. (Transcript, page 16.)
The claimant, Lana Graley, testified that she was expecting her son to arrive back home between 10:30 p.m. and 11:00 p.m. on the date of this incident. (Transcript, pages 61-62.) He and Alex Morgan had been on a job site in North Carolina. The claimant testified that her son had a good reputation in the community for being a kind person. (Transcript, page 58.) In addition, she knew him to be a kind-hearted person who would go out of his way to help other people. (Transcript, page 64.) The
claimant did not believe that her son knew the offender prior to this incident. (Transcript, page 58.) The victim lives at home with his mother but travels a lot because of the nature of his job. (Transcript, pages 55-56.) The claimant stated that he contributed income on a monthly basis to help her in the amount of $300.00 and sometimes $400.00 depending on the size of his paycheck. (Transcript, page 57.) Ms. Graley is married and has two other sons that do not live at home (Transcript, page 68.) The claimant, her husband, who is the victim's stepfather, and the victim lived at her home. Her husband is a disabled veteran, and the claimant's only source of income is through her husband's Veterans Administration benefits. (Transcript, page 67.) The claimant is seeking an award for lost income as a result of the death of her son. In addition, the claimant incurred funeral expenses of $6,416.70, for which she also seeks an award. (Transcript, page 55.)
W.Va. Code
§14-2A-3(1) defines "Contributory misconduct" as "any conduct of the claimant, or of the victim through whom the claimant claims an award, 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."
Further, W.Va. Code §14-2A-14 provides the Court with the discretion to deny or modify an award based upon the contributory misconduct of the claimant or of the victim through whom a claim is made. When a victim's actions fall without the express wording of contributory misconduct as defined in W.Va. Code § 14-2A-3(1), the Court will then look to the purpose and intent of the Act. The Act established a system of compensation for innocent citizens who are victims of crime. While misconduct includes unlawful conduct as a matter of law, "misconduct" may be something less than unlawful conduct, though more than an act in poor taste. Misconduct requires some deviation from the accepted norm or standard of proper behavior. Conduct may be construed as "contributory misconduct" if an ordinary prudent person could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed. In re Trador, CV-97-56 (1997).
In the present claim, it is evident that the victim Nicholas Huff did not commit any unlawful or tortious acts. The evidence adduced at the hearing established that the victim was not the aggressor in this incident and did not do anything to provoke this savage and cowardly attack. The evidence also established that the victim did not know, nor should he have known, that the offender had picked up a barbecue fork on his way out the door. The offender had not threatened the victim with a weapon nor had he brandished the barbecue fork or any type of weapon. The evidence established that the offender picked up the barbecue fork without the victim's knowledge and kept it hidden until both parties were outside, at which time the offender used it to savagely murder him. Given the circumstances, the actions of the victim were not unreasonable. If the victim had known that the offender had the weapon, he most assuredly would have chosen a different course of action. However, the evidence established that he was only trying to check on the well-being of Kandace Clower, a fourteen-year-old girl, who was visibly upset as a result of the conduct of the offender. When the offender had the audacity to follow the victim and the young girl to her bedroom, the one place she hoped to get away from him, the offender made matters worse by yelling and trying to attack the victim in front of Ms. Clower. The victim was already concerned about Ms. Clower and did not want the offender to continue to yell, threaten, and fight in her presence, especially in her bedroom. Thus, it was not unreasonable for the victim to want to get the offender out of the house and away from the young girl, which is exactly what happened. Further, the evidence indicated that the offender was intoxicated, angry, and extremely aggressive that night. It appears from the testimony and the police report that the offender had some sort of romantic feelings towards Crystal Clower, and became angry and jealous because she and her sister were talking to the other young men at the party. In addition, the offender had been in a heated argument on the telephone with another female acquaintance earlier in the evening which had angered him. It is not clear from the evidence why the offender, age twenty-seven, was harassing Kandace Clower, age fourteen. The evidence established that the victim was only trying to help protect a young girl, and paid for it with his life. The victim's conduct was not that of an aggressor nor of a person intoxicated. Thus, the Court finds that the victim, Nicholas Huff, was not guilty of contributory misconduct, and therefore the claimant Lana Graley is not barred from any award in this claim.
The facts giving rise to this tragedy remain very disturbing to the Court. Tina Clower, an adult, permitted people to gather in her home with her two minor daughters to party. Further, law- enforcement officials, whose duty it is to uphold our state statutes, chose to ignore the illegal underage drinking that occurred that night.
In view of the foregoing, the Court is of the opinion to and does hereby make an award of $4,000.00, representing the statutory maximum in effect at the time for funeral expenses, as set out below.

Mounts Funeral Home, Inc.
P.O. Box 1567
Gilbert WV 25621
FEIN: 55-0584625................................................$3,918.70

Lana Graley
P.O. Box 1044
Oceana WV 24870
................................................$ 81.30


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