WEST VIRGINIA RECORD

CHARLESTON – Adonis Thompson, who slept while his two-year-old son died in a hot car, failed to convince the West Virginia Supreme Court of Appeals that he did not commit a crime.

The Justices on May 11 unanimously affirmed his conviction on a felony charge of child neglect resulting in death.

Luke Thompson died May 28, 2004, outside the family's trailer home at Blount, in Kanawha County.

While his father slept, the outside temperature climbed above 80 degrees.

Luke's temperature hit 107 as he died.

Thompson's attorneys, Kanawha County public defenders Taylor George and Gregory Ayers, called it an accident. They argued that Thompson did not intentionally neglect Luke.

The Justices rejected that argument, ruling that Thompson contributed to the circumstances.

In an unsigned opinion they wrote, "The death was foreseeable."

They also rejected an argument that Circuit Judge Irene Berger should have instructed jurors to consider a defense of "unconsciousness or automatism."

At trial last year Thompson, testified that the night before, his family evacuated the home due to flooding. He said he worked a double shift the day before and did not sleep the night before.

He testified that he and Luke and Luke's mother, Courtney Ferrell, returned to the trailer around 10 a.m. and that Ferrell left in a separate vehicle.

He testified that he planned to leave Luke in the car for five to ten minutes while he changed out of wet clothes. He said he left Luke in the car because it was raining, Luke was running a fever and the electricity was off. He testified that he woke up around 3 p.m. when the electricity came on.

Jurors convicted Thompson. Berger sentenced him to three to 15 years in the state penitentiary.

Thompson appealed, arguing that Berger committed plain error by failing to tell jurors about a 1996 Court decision, State v. Hinkle.

Justices in Hinkle held that, "An instruction on the defense of unconsciousness is required when there is reasonable evidence that the defendant was unconscious at the time of the commission of the crime."

According to George and Ayers, Berger should have told jurors they had to find that Thompson committed a voluntary act.

At trial, however, they had not asked Berger for a Hinkle instruction.

To overturn the conviction, they had to persuade the Justices that Berger should have thought of Hinkle herself.

The Justices possess power to correct a plain instructional error even if no one challenged it at trial, but they seldom exercise that power.

They can declare plain error only to bring out truth, protect rights or avoid miscarriage of justice.

None of those exceptions applied, they agreed.

They also rejected an argument that Berger did not accurately define "neglect" for jurors.

"Upon the whole, a balanced charge was given to the jury," the wrote.

Finally they rejected an argument that the evidence did not support the verdict.

"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," they wrote. "He could have carried Luke and the car seat into the trailer."