647 S.E.2d 526
| E. Taylor George, Esq.|
Assistant Public Defender
Gregory L. Ayers, Esq.
Deputy Public Defender
Kanawha County Public Defender Office
Charleston, West Virginia
Attorneys for the Appellant
| Darrell V. McGraw, Jr., Esq.
Robert D. Goldberg, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
This case is before this Court upon the appeal of Adonis Ray Thompson from his conviction in the Circuit Court of Kanawha County, West Virginia, of the felony offense of child neglect resulting in death. According to the State, appellant Thompson unreasonably failed to exercise a minimum degree of care toward his 2 year-old son, Luke Alexander Thompson, who died from hyperthermia upon being left in an infant car seat in the appellant's car over four hours on a day where outside temperatures reached in excess of 80 degrees Fahrenheit. The appellant contends that he collapsed into sleep in his residence due to physical exhaustion and that his resulting failure to retrieve Luke from the car rendered his son's death purely accidental. Following trial by jury and conviction, the Circuit Court entered an order on March 30, 2006, sentencing the appellant to an indeterminate term of three to fifteen years in the penitentiary.
This Court has before it the petition for appeal, the entire record of the proceedings below and the briefs and argument of counsel. The appellant sets forth assignments of error alleging that the Circuit Court improperly instructed the jury and that the evidence was insufficient to support the conviction. Upon careful examination, however, and upon the applicable standards of review, this Court finds no merit in those assignments. Therefore, the appellant's conviction and sentence are affirmed.
Upon waking up, appellant Thompson ran to the car and carried Luke next door to the home of Janet Elswick. While her husband called 911, Elswick made sure Luke's throat was clear and administered CPR. Upon arrival, the paramedics observed that Luke was not breathing, did not have a pulse and appeared to be deceased. He was hot to touch, so they removed his clothes and ran the air conditioner in the ambulance. Later testimony revealed that at 3:00 p.m. that day the outside temperature in the Charleston, West Virginia, area was 84 degrees Fahrenheit. The paramedics attempted to revive Luke and transported him to Women and Children's Hospital in Charleston where he was pronounced dead. According to hospital records, his core temperature at 4:25 p.m. that day was close to 107 degrees Fahrenheit. The Medical Examiner determined the cause of death to be hyperthermia: abnormally high body temperature due, in this case, to environmental conditions.
If any parent, guardian or custodian shall neglect a child under his or
her care, custody or control and by such neglect cause the death of said child,
then such parent, guardian or custodian shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than one thousand dollars nor more
than five thousand dollars or committed to the custody of the Division of
Corrections for not less than three nor more than fifteen years, or both such
fine and imprisonment.
The appellant was provided with court appointed counsel, and, in January 2006, a trial was conducted. The appellant, testifying before the jury, maintained that his decision to leave Luke in the car for five minutes was reasonable inasmuch as it was still raining, Luke had been running a fever and the electricity in the trailer had gone off. Furthermore, the appellant insisted that his collapse into sleep was the unintended result of working a double shift the day before and of the events following his family's evacuation in the early morning hours. The appellant thus contended that exhaustion rendered him unable to exercise the proper degree of care toward his son and that Luke's death was purely accidental.
The State argued to the jury that, under the totality of the circumstances, Luke's death was foreseeable since the appellant: (1) was aware that he was exhausted, (2) knew he was the only adult present to take responsibility for Luke and could have carried him into the trailer and (3) entered the trailer to wait for Ferrell rather than simply to change clothes. In addition, pursuant to Rule 404(b) of the West Virginia Rules of Evidence, the Circuit Court permitted the State to elicit testimony that, on past occasions, the appellant and Ferrell used the infant car seat as a babysitter for Luke. (See footnote 2) In that regard, Janet Elswick told the jury that, about one month before Luke's death, the appellant and Ferrell left Luke in the car from 20 to 30 minutes. Moreover, Elswick testified that, the week Luke died, she received an early- morning telephone call from the appellant's employer inquiring about his absence from work that day. In response, Elswick entered the unlocked trailer, found Luke strapped in the car seat on a chair near the front door and found the appellant and Ferrell sleeping in the bedroom at the back of the trailer. (See footnote 3)
On January 24, 2006, the jury found appellant Thompson guilty of child neglect
resulting in death. A sentencing hearing was conducted on March 30, 2006, and an order
was entered that day sentencing the appellant to an indeterminate term of three to fifteen
years in the penitentiary. In October 2006, this Court granted the appellant's petition for
A trial court's instructions to the jury must be a correct statement of the
law and supported by the evidence. Jury instructions are reviewed by
determining whether the charge, reviewed as a whole, sufficiently instructed
the jury so they understood the issues involved and were not misled by the law.
A jury instruction cannot be dissected on appeal; instead, the entire instruction
is looked at when determining its accuracy. A trial court, therefore, has broad
discretion in formulating its charge to the jury, so long as the charge accurately
reflects the law. Deference is given to a trial court's discretion concerning the
specific wording of the instruction, and the precise extent and character of any
specific instruction will be reviewed only for an abuse of discretion.
Syl., State v. James, 211 W.Va. 132, 563 S.E.2d 797 (2002); syl. pt. 1, State v. Boggess, 204 W.Va. 267, 512 S.E.2d 189 (1998); syl. pt. 3, State v. Lease, 196 W.Va. 318, 472 S.E.2d 59 (1996).
As to claims of insufficiency of the evidence, this Court observed in syllabus point 1 of Guthrie, supra, as follows:
The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
Syl. pt. 1, State v. Mann, 205 W.Va. 303, 518 S.E.2d 60 (1999); syl. pt. 1, State v. Browning, 199 W.Va. 417, 485 S.E.2d 1 (1997); syl. pt. 4, State v. Broughton, 196 W.Va. 281, 470
S.E.2d 413 (1996). See also, syl. pt. 2, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996). (See footnote 4)
With these principles in mind, we turn to the specific issues raised by the appellant.
In Hinkle, the defendant was convicted of involuntary manslaughter resulting
from a head-on collision between the automobile he was driving and another vehicle. At
trial, the defendant submitted evidence to the effect that he could have lost consciousness
immediately prior to the collision because of a brain disorder, not diagnosed until after the
accident, which precluded any volitional component required of the offense. Supportive of
that defense, often referred to as unconsciousness or automatism, was the fact that there was
no evidence that the defendant was aware of the possibility of a blackout. 200 W.Va. at 288
n. 28, 489 S.E.2d at 265 n. 28. (See footnote 7)
The trial court, in Hinkle, refused the defendant's proposed instruction describing the alleged brain disorder in the context of insanity. Instead, the trial court instructed the jury on the defense of unconsciousness or automatism. Nevertheless, this Court, determining the instruction to be inadequate, awarded a new trial. As stated in the Hinkle opinion: The jury should have been told that, in light of the evidence of the defendant's brain disorder and apparent blackout, he could not be convicted unless the State proved beyond a reasonable doubt that his act was voluntary and that he acted in reckless disregard of the safety of others. 200 W.Va. at 288, 489 S.E.2d at 265. (See footnote 8)
Unlike the defendant in Hinkle, appellant Thompson requested no instruction in the context of insanity or otherwise concerning the defense of unconsciousness or automatism. Rather, although the appellant maintained, as did the defendant in Hinkle, that his collapse precluded the voluntary aspect of the offense, the appellant, unlike the defendant in Hinkle, largely focused at trial upon the reasonableness of his decision, under the circumstances, to leave Luke in the car for five minutes. Moreover, unlike Hinkle where the defendant was unaware of the possibility of a blackout, appellant Thompson was, no doubt, aware of his exhaustion and the fact that he was the only adult present to take responsibility for his son. Thus, in contrast to the unexpected manifestation of an undiagnosed brain disorder, the appellant contributed to the circumstances in which Luke's death was foreseeable.
Another distinction between Hinkle and the case to be determined is the appellant's status in relation to his son. Pursuant to W.Va. Code, 61-8D-4a(a) (1997), the offense of child neglect resulting in death is to be prosecuted against the child's parent, guardian or custodian. In like fashion, the term neglect is defined in W.Va. Code, 61-8D- 1(6) (1988), as the unreasonable failure by a parent, guardian or any person voluntarily accepting a supervisory role towards a minor child to exercise a minimum degree of care to assure said minor child's physical safety or health. Consequently, in view of the appellant's duty or status as a parent, an analysis of the evidence of his failure to assure Luke's physical safety and health, a fortiori, warrants a consideration of the totality of the circumstances as to whether the Circuit Court's failure to instruct the jury on unconsciousness or automatism constituted plain error. (See footnote 9)
From what has been said, this Court declines to extend the principles of Hinkle to this situation. Accordingly, we find no plain error in the Circuit Court's failure to sua sponte instruct the jury.
Appellant Thompson next contends that he was denied due process of law by the Circuit Court's refusal to give his instruction which would have informed the jury that the term neglect, as charged in the indictment, requires a finding of gross deviation beyond the standard of care and a finding of significantly more than ordinary negligence. In making that assertion, the appellant relies upon State v. DeBerry, 185 W.Va. 512, 408 S.E.2d 91, cert. denied, 509 U.S. 984, 112 S.Ct. 592, 116 L.Ed.2d 616 (1991). In DeBerry, this Court indicated that the term neglect, statutorily defined as the unreasonable failure to exercise a minimum degree of care to assure the minor child's physical safety or health, was comparable to criminal negligence which included the gross deviation and significantly more than ordinary negligence standards. 185 W.Va. at 515, 408 S.E.2d at 94.
DeBerry, however, involved an appeal by the State from the dismissal of an indictment charging the defendant with child neglect resulting in serious bodily injury under W.Va. Code, 61-8D-4(b) (1988), a separate statute from W.Va. Code, 61-8D-4a(a) (1997), concerning child neglect resulting in death. The sole issue in DeBerry was constitutional in nature, and as this Court held in syllabus point 3:
The term neglect, as defined by W.Va. Code, 61-8D-1(6) (1988), is not unconstitutionally vague in violation of due process principles contained in U.S. Const. amend. XIV, § 1, and W.Va. Const. art. III, § 10. Therefore, W.Va. Code, 61-8D-4(b) (1988), is not unconstitutionally vague in violation of due process principles contained in U.S. Const. amend. XIV, § 1, and W.Va. Const. art. III, § 10, because such statute's use of the term neglect gives a person of ordinary intelligence fair notice that his or her contemplated conduct is prohibited, and it also provides adequate standards for adjudication.
Thus, DeBerry does not stand for the proposition that the appellant was entitled to an instruction elaborating upon the definition of the term neglect. Instead, it suggests that the statutory definition is unambiguous. In the case now before us, the Circuit Court incorporated the language of the offense, W.Va. Code, 61-8D-4a (1997), in its instructions to the jury and included the statutory definition of neglect set forth in W.Va. Code, 61-8D- 1(6) (1988). Moreover, the Circuit Court told the jury that the word unreasonable found within the definition of neglect meant unwise, senseless or not rational.
Rather than alleging that the instructions thus given were erroneous, the appellant insists that the instruction he proposed, based upon DeBerry, would have provided further guidance to the jury by refining the definition of neglect. In that manner, the appellant sought further elaboration upon a word which was already defined by statute. We believe, however, that, upon the whole, a balanced charge was given to the jury and that the Circuit Court's refusal to allow the proposed instruction was protected by the parameters of sound discretion. Parker v. Knowlton Construction Company, 158 W.Va. 314, 329, 210 S.E.2d 918, 927 (1975). (See footnote 10) This assignment of error, therefore, is without merit.
In his final assignment of error, appellant Thompson contends that his conviction should be set aside because the evidence at trial was insufficient to support the verdict. In considering that assignment, this Court must review all of the evidence in the light most favorable to the prosecution. As this Court made clear in State v. Guthrie, supra, an appellant in a criminal case challenging the sufficiency of the evidence takes on a heavy burden, and a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. 194 W.Va. at 669-70, 461 S.E.2d at 175-76. See, 5 Am. Jur. 2d, Appellate Review § 662 (1995) (An appellate court does not reweigh the evidence presented in the court below.).
In Kelly v. Commonwealth, 42 Va.App. 347, 592 S.E.2d 353 (2004), the Court of Appeals of Virginia found the evidence sufficient to support the defendant's convictions of involuntary manslaughter and felony child neglect, where the defendant's 21 month-old daughter, Frances, died from hyperthermia after being left strapped in a car seat in a van in excess of seven hours. The van was parked at the defendant's residence. The defendant, who had instructed his teenage son to take Frances into the house, was in and out of the residence throughout the day. Neighbors testified that, on prior occasions, they had seen the defendant's children locked in his vehicles on hot or warm days and that they so alerted the defendant. In affirming the convictions, the Court, in Kelly, stated:
Kelly was solely responsible for Frances, a twenty-one-month-old child. He strapped her into her car seat in the family van, thus placing her in a position in which she was rendered helpless. This position became lethal when Kelly, through his dereliction, left Frances in the vehicle and only quickly and casually instructed other children or a sixteen-year-old boy to get all the children out of the van and into the house. Kelly departed immediately without ensuring that his instructions were obeyed. Specifically, he abandoned Frances without ensuring that she was removed from her confinement in the car seat and lodged safely in the house. Thereafter, over the course of several hours, he made no further provisions for or inquiry about Frances.
42 Va.App at 356-58, 592 S.E.2d at 357-58. See, Robert E. Shepherd, Jr., Family and Juvenile Law, 39 Univ. of Richmond L. Rev. 241, 276 (2004). Similarly, the Supreme Court of Virginia found the evidence sufficient to support two criminal neglect convictions in Barrett v. Commonwealth, 268 Va. 170, 597 S.E.2d 104 (2004), where the defendant's 10 month-old son, Joshua, drowned in a bathtub while the child and his 2 year-old sister were at home without supervision. The defendant was present in the home but had gone to sleep on the couch after a night of drinking beer. Considering all of the circumstances, rather than simply the defendant's act of falling asleep, the Court, in Barrett, stated: Barrett sent Patricia to her room even though it was well before nap time, gave Joshua a bottle and placed him on the floor beside the couch, and then, still intoxicated as well as tired, proceeded to go to sleep on the couch, knowing she was the only one left in the apartment to supervise the children. 268 Va. at 185, 597 S.E.2d at 112.
Here, the community of circumstances surrounding Luke's death was properly submitted for deliberation by the jury. Viewing the evidence in the light most favorable to the State requires, as in Barrett, more than focusing upon appellant Thompson's collapse into sleep. Rather, the evidence was there for the jury to conclude that the appellant contributed to the circumstances which led, inexorably, directly to Luke's death from hyperthermia. The death was foreseeable. The appellant was aware of his own exhaustion from being up the entire night, and he knew that he was the only adult present to take responsibility for Luke. He could have carried Luke and the car seat into the trailer. Moreover, according to the State, the appellant entered the trailer to wait for Ferrell's return, rather than simply to change clothes. The testimony and exhibits admitted at trial, viewed from the State's perspective, is, thus, irreconcilable with the appellant's assertion that the evidence was insufficient to support the verdict.