Reaffirming Hinkle: “Reasonable Evidence” Must Show Unconsciousness at the Moment of the Crime to Warrant an Automatism Instruction

Introduction

In State of West Virginia v. Timothy W. (No. 23-518), the Supreme Court of Appeals of West Virginia affirmed the Greenbrier County Circuit Court’s denial of a defense-requested jury instruction on unconsciousness (also known as automatism) following a jury conviction for two counts of sexual abuse by a parent/guardian/custodian or person in a position of trust to a child, one count of incest, and one count of third-degree sexual assault. The petitioner argued that the jury should have been instructed that a criminal act committed in a state of unconsciousness is not voluntary and therefore not criminal. The central appellate issue was whether the trial court abused its discretion in refusing that instruction and whether the jury charge as a whole adequately addressed the theory of defense.

The Court issued a memorandum decision on October 21, 2025, concluding that the evidentiary record did not contain “reasonable evidence” that the defendant was unconscious at the time of the alleged conduct. In reaching that conclusion, the Court relied on established West Virginia precedent—particularly State v. Hinkle (1996) and State v. Derr (1994)—and held that the general intent instructions given adequately covered the issues raised. While the majority treated the case as appropriate for disposition by memorandum decision, Justice Bunn dissented, indicating she would have set the matter for oral argument and issued a formal opinion.

Summary of the Opinion

The trial court did not abuse its discretion in refusing the defense’s proposed unconsciousness/automatism jury instruction because there was no “reasonable evidence” that the defendant was unconscious at the time of the offense, as required by State v. Hinkle.
The Court emphasized that speculation or intermittent observations of sleep at other times do not constitute reasonable evidence of unconsciousness at the precise moment the offense occurred.
Even aside from the refusal of the specific instruction, the jury was adequately charged on specific intent—the need for the State to prove the defendant intended to do what he was accused of doing—satisfying the requirement that the jury instructions, viewed as a whole, sufficiently covered the defense theory.
Applying State v. Derr, the Court held that the refusal to give the requested instruction was not reversible error because: (1) there was not a sufficient evidentiary foundation; and (2) the concepts were substantially covered by the instructions given.
Judgment: Affirmed.

Case Background

In early 2022, the petitioner and his long-time partner, Arenda D., moved with their children into a Greenbrier County home. The alleged offenses occurred in the early morning hours of April 24, 2022. The victim, H.W. (Arenda’s 14-year-old daughter from a prior relationship with the petitioner’s brother), later reported to her father and law enforcement that the petitioner sexually assaulted her while she was in bed. H.W. described being awakened to the petitioner positioned behind her, touching her buttocks and breast, pulling down her leggings/underwear, digitally penetrating her, and then inserting his penis into her vagina. She recalled her younger sister M.W. saying “Ouch,” to which the petitioner replied “Sorry.” The petitioner got up, went to the bathroom, and then to the garage area.

The defense theory at trial invoked the possibility that the petitioner was asleep or not fully conscious—supported, they argued, by (a) H.W.’s earlier uncertainty in a forensic interview about whether he might have been asleep, (b) the petitioner’s testimony that he woke feeling smothered by M.W., apologized to M.W. as he moved her, and felt nauseated, and (c) Arenda’s testimony that her intermittent check-ins showed the petitioner sleeping soundly when she looked in. The defense requested an instruction stating that unconsciousness (automatism) is distinct from insanity and—if raised—negates the voluntary act requirement, with the burden remaining on the State to prove the act was voluntary beyond a reasonable doubt. The circuit court declined to give the instruction, noting no evidence of a condition or disorder and indicating the defense arguments were adequately addressed by the element-of-intent instructions.

Analysis

Precedents Cited and Their Role in the Decision

State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996)
The Court reiterated Hinkle’s controlling rule: “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.” The current decision applies Hinkle strictly to the timing question: the evidence must relate to the moment the criminal act occurred, not to general sleepiness, intermittent sleep, or speculation from earlier or later time points. The Court found no reasonable evidence of unconsciousness contemporaneous with the acts alleged: the victim ultimately testified she did not think the petitioner was asleep; the petitioner himself described waking, apologizing, feeling nauseated, going to the bathroom—events indicating consciousness; and the intermittent room checks did not place the petitioner in a state of unconsciousness while the conduct occurred.
State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994)
Two Derr principles guided review:
- Standard of review: Whether evidence is sufficient to justify giving a particular instruction is reviewed for abuse of discretion, viewing the evidence and reasonable inferences in the light most favorable to the prosecution (Syl. Pt. 12).
- Reversible-error test for refusal of instruction: Refusal is reversible only if the instruction is correct, not substantially covered by the charge given, and concerns an important point whose omission seriously impairs the defense (Syl. Pt. 11). The Court concluded the general intent instruction substantially covered the defense’s theory about voluntariness/intent under the facts presented.
State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996)
LaRock recognizes that a criminal defendant is generally entitled to a jury charge reflecting any defense theory with a foundation in the evidence. The Court emphasized that here the threshold problem was foundational: the record did not supply “reasonable evidence” that the petitioner was unconscious at the moment of the offense, so Hinkle and LaRock together did not compel the instruction.
State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995)
Guthrie teaches that instructions are reviewed as a whole; they are adequate if they enable the jury to understand the issues and do not mislead on the law (Syl. Pt. 4, in part). The Court found that the trial court’s specific-intent instruction sufficiently addressed the need for the State to prove the accused intended the acts charged.
State v. Gum, 172 W. Va. 534, 309 S.E.2d 32 (1983)
Gum supports the trial court’s discretion to refuse an instruction not supported by sufficient evidence. The Court endorsed the trial court’s refusal on this evidentiary basis.

Legal Reasoning

The Court’s analysis proceeds in two steps: evidentiary sufficiency to trigger an unconsciousness instruction under Hinkle and, alternatively, adequacy of the instructions given under Guthrie and Derr.

No “reasonable evidence” of unconsciousness at the time of the offense.
- Petitioner’s own testimony: He recounted waking while feeling smothered by M.W., apologizing to M.W. for pulling her hair, feeling nauseated, and going to the bathroom. These are coordinated, purposeful acts that the Court reasonably read as inconsistent with unconsciousness during the offense window.
- Victim’s testimony: Although H.W. once speculated in a forensic interview that the petitioner might have been asleep, she clarified at trial that this was an attempt to reconcile painful facts about a person she cared about; ultimately, she testified, “I don’t think he was [asleep].” She also described a sequence—pulling down her clothing, digital and penile penetration, apology to M.W., replacing clothing, leaving the bed—that indicates purposeful conduct.
- Intermittent observations by Arenda: Her check-ins corroborated that the petitioner was sleeping at certain times and that M.W. was awake; but she did not continuously observe the scene and thus could not speak to the petitioner’s state at the precise time of the assault. Under Hinkle, proof of unconsciousness must be anchored to the moment of the criminal act.
Viewed in the light most favorable to the State (Derr), the record lacked the case-specific indicia required to justify an automatism instruction. Notably, the Court did not adopt the trial court’s incidental remark about lacking proof of a “condition or disorder” as a necessary prerequisite; rather, it grounded the affirmance in Hinkle’s timing and sufficiency requirements.
The instructions as a whole adequately addressed the defense theory.
Even if one assumed that the defense theory was in play, the Court concluded that the trial court’s specific-intent instruction—requiring the State to prove the defendant “intended to do what he is accused of doing” and permitting the jury to infer intent from actions and consequences—substantially covered the relevant legal ground. Under Derr’s three-part test, the refusal was not reversible because the thrust of the defense theory (that he did not intentionally commit the acts) was included in the general charge, and the absence of a dedicated automatism instruction did not “seriously impair” the defense on this record.

Impact and Implications

Although issued as a memorandum decision, the Court’s reasoning has practical, citable significance under West Virginia’s appellate rules. It does not create new law but clarifies and reinforces how trial courts should approach requests for unconsciousness/automatism instructions:

Precision in timing matters. Hinkle’s “reasonable evidence” requirement is not satisfied by generalized sleepiness, sporadic observations of sleep before or after the incident, or a witness’s speculative musings. Evidence must support unconsciousness at the moment of the alleged criminal conduct.
Acts implying awareness will weigh heavily. Responsive speech (e.g., an apology to a child who says “ouch”), coordinated movements (pulling clothing down and up, leaving the bed, going to the bathroom or garage), and other purposeful conduct undercut unconsciousness claims.
General intent instructions can suffice where automatism is not factually supported. If automatism is not sufficiently supported, a standard instruction on intent and the State’s burden will typically be deemed adequate coverage of the defense’s theory.
Practice pointers for defense counsel. To merit a Hinkle instruction in future cases, consider developing:
- Direct, contemporaneous lay testimony that the defendant was unresponsive, non-communicative, or displaying hallmark sleep behaviors during the act;
- Medical or expert evidence of a sleep disorder (e.g., parasomnias, sexsomnia), with linkage to the event’s timing and behaviors;
- Consistent statements by the accused and witnesses indicating lack of awareness, absence of purposeful conduct, and immediate post-event confusion consistent with automatism.
Practice pointers for the State. Elicit and emphasize purposeful conduct, responsive verbalizations, and post-incident actions to demonstrate consciousness; challenge the timing and reliability of any purported sleep-related observations.

Because the decision arrives as a memorandum disposition, it primarily re-applies existing law rather than crafting new doctrine. Justice Bunn’s dissent signals that at least one member of the Court viewed the issues as worthy of fuller treatment—particularly the interplay between automatism and general intent instructions in sexual assault prosecutions—leaving room for future, more expansive guidance in a published opinion should a record present closer questions on sufficiency.

Complex Concepts Simplified

Unconsciousness/Automatism: A defense asserting that the accused performed the act without conscious control (e.g., while sleepwalking or in a state of automatism). It is distinct from the insanity defense because it negates the voluntary act element of a crime rather than focusing on the ability to distinguish right from wrong.
“Reasonable evidence” threshold (Hinkle): A judge must give an automatism instruction only if there is evidence from which a reasonable jury could find the defendant was unconscious at the exact time of the alleged offense. Mere speculation or evidence of sleep at other times is insufficient.
Standard of review (Derr):
- Abuse of discretion for whether the facts justify a requested instruction (with the evidence viewed in the light most favorable to the prosecution).
- De novo for whether the jury, overall, was properly instructed on the law (Hinkle, Syl. Pt. 1, in part).
Refusal of instruction test (Derr): A refusal is reversible only if the proposed instruction correctly states the law, is not substantially covered by other instructions, and addresses an important point whose omission seriously impairs the defense.
“Instructions as a whole” (Guthrie): Appellate courts review the entire charge to ensure jurors were not misled and understood the issues; perfection is not required if the core legal standards are conveyed.

Application to the Record

Defense’s evidentiary proffer: H.W.’s earlier uncertainty; Arenda’s intermittent check-ins showing the petitioner asleep at some points; the petitioner’s own description of waking, apologizing to M.W., and feeling nauseated.
Why it fell short: The victim ultimately testified she did not think the petitioner was asleep; the petitioner’s apology and purposeful actions suggested consciousness; and intermittent check-ins did not establish unconsciousness at the time of the acts.
Trial court’s rationale vs. appellate rationale: The trial judge mentioned “no evidence of a condition or disorder,” which might suggest a diagnostic prerequisite. The Supreme Court did not adopt a “diagnosis requirement.” Instead, it affirmed on Hinkle’s narrower ground: absence of reasonable evidence of unconsciousness at the moment of the offense.
Jury charge adequacy: The specific-intent instruction required the State to prove the defendant intended to do what he was accused of doing. In the absence of evidentiary support for automatism, that instruction adequately addressed the defense narrative under Guthrie and Derr.

Conclusion

This decision reaffirms a clear principle under State v. Hinkle: a trial court must give an unconsciousness/automatism instruction only when there is reasonable, case-specific evidence that the defendant was unconscious during the commission of the offense. Speculation, equivocal statements later clarified, and intermittent observations of sleep are insufficient. Where automatism lacks evidentiary footing, a standard instruction requiring proof of intent suffices to guide the jury.

For practitioners, the opinion underscores the importance of carefully marshaling (or contesting) evidence tied to the precise moment of the alleged act, including responsive speech and purposeful conduct that reflect consciousness. While the Court issued a memorandum decision, its analysis provides practical guidance for trial courts and litigants navigating the intersection of automatism defenses and sexual offense prosecutions. Justice Bunn’s dissent signals that future cases with stronger factual foundations for automatism may prompt fuller appellate treatment, but on this record, the affirmance was straightforward under Hinkle and Derr.