State v. Thompson

• Decision Date: 11 May 2007
• Docket Number: No. 33206.,33206.
• Citation: 647 S.E.2d 526
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Adonis Ray THOMPSON, Defendant Below, Appellant.

647 S.E.2d 526

STATE of West Virginia, Plaintiff Below, Appellee v. Adonis Ray THOMPSON, Defendant Below, Appellant.

No. 33206.

Supreme Court of Appeals of West Virginia.

Submitted: April 4, 2007.

Decided: May 11, 2007.

Syllabus by the Court

1. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syl. pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

2. "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. pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

3. "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. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

E. Taylor George, Esq., Assistant Public Defender, Gregory L. Ayers, Esq., Deputy Public Defender, Kanawha County Public Defender Office, Charleston, for the Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, Robert D. Goldberg, Esq., Assistant Attorney General, Charleston, for the Appellee.

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.

I. Factual Background

Appellant Thompson and Courtney Elaine Ferrell, the natural parents of Luke Alexander Thompson, lived with their son in a trailer home in Blount, West Virginia, located in the Campbells Creek area of Kanawha County. At 3:00 a.m. on May 28, 2004, the family evacuated the trailer because of flooding brought about by heavy rains. The appellant had been awake the entire night and had worked a double-shift the day before as a laborer for a mobile home moving company. His work that day had involved assisting in transferring a mobile home to the top of a hill for a customer.

After leaving their home, the appellant and Ferrell drove to the residence of the appellant's father and stepmother, also in Blount, and advised them and their neighbors of the flooding in the vicinity. Luke, age 2, who had been running a fever, was strapped in an infant car seat in the appellant's 1989 Ford Probe. Thereafter, the appellant, Ferrell and Luke drove to various places until the waters receded.

The family returned to the trailer between 10:00 a.m. and 10:30 a.m., on May 28, at which time Ferrell left in a separate vehicle to purchase cigarettes and check on the appellant's father and stepmother. The appellant's Ford Probe containing Luke was parked approximately five feet from the front of the trailer. The windows of the car were closed, with the exception of the driver's side window which was open no more than one and one-half inches. According to the appellant, he intended to leave Luke in the car for five minutes while he went in the trailer to change into dry clothes. The appellant maintains that he made the decision to leave Luke unattended in the car because it was still raining, Luke had been running a fever and the electricity in the trailer had gone off. The appellant further contends that, while changing clothes, he collapsed into sleep unintentionally by reason of physical exhaustion and did not wake up until he heard the restoration of electric power in the trailer at 3:00 p.m.¹ At that point, Luke had been left unattended in the car over four hours.

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.

II. Procedural Background

In June 2005, an indictment was returned by a Kanawha County grand jury charging appellant Thompson with child neglect resulting in death pursuant to W.Va.Code, 61-8D-4a (1997). That statute provides in part:

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.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.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 appeal.

III. Standards of Review

As stated above, appellant Thompson alleges instructional error and that the evidence was insufficient to support the conviction. With regard to instructions to the jury, this Court noted in syllabus point 1...