Speculative Sleep Is Not “Reasonable Evidence”: West Virginia Limits Unconsciousness (Automatism) Jury Instructions to Proof Tied to the Moment of the Offense

Introduction

This commentary analyzes the Supreme Court of Appeals of West Virginia’s memorandum decision in State of West Virginia v. Timothy W., No. 23-518 (Oct. 21, 2025), affirming convictions 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 sole appellate issue was instructional: whether the circuit court erred by refusing the defense’s proposed jury instruction on unconsciousness—framed as “unconsciousness (or automatism)”—which the defense claimed negated the voluntariness of any criminal act.

The decision clarifies and operationalizes an existing rule from State v. Hinkle: a trial court must instruct on the defense of unconsciousness “when there is reasonable evidence that the defendant was unconscious at the time of the commission of the crime.” The Court held there was no such evidence here. The case is therefore important for trial practice in West Virginia, especially in prosecutions where a defendant suggests sleep-related automatism (e.g., “sexsomnia”) or other non-volitional states. It underscores a temporal and evidentiary demand: evidence must reasonably indicate unconsciousness at the precise time of the criminal conduct, not merely before or after, nor by speculation.

Summary of the Opinion

The defense requested an instruction stating that a person is not guilty if he engaged in otherwise criminal conduct “in a state of unconsciousness or semi-consciousness,” emphasizing automatism as distinct from insanity and contending that once raised, the State bore the burden to prove the act was voluntary beyond a reasonable doubt. The circuit court refused, observing “no evidence … of a condition or disorder,” and instructed instead on intent, including that “one of the elements of each of the crimes charged … is the element of specific intent.”

On appeal, the Supreme Court affirmed. Relying chiefly on State v. Hinkle, the Court concluded there was no “reasonable evidence” that the defendant was unconscious at the time of the offenses. Key considerations included: (1) the defendant did not testify he was unconscious; (2) the victim testified the defendant apologized to another child during the assault—a fact the defendant admitted—which pointed to conscious awareness; (3) the sequence of purposeful acts testified to by the victim; and (4) the mother’s sporadic observations that the defendant was asleep at other times did not show unconsciousness when the crimes occurred. The Court further held that the jury charge as a whole, including the specific-intent instruction, sufficiently addressed the central issue of whether the defendant intentionally engaged in the criminal conduct.

Justice Bunn dissented, stating she would have set the case for oral argument and issued a formal opinion rather than a memorandum decision.

Factual Background and Procedural Posture

• Household: In early 2022, the defendant, his long-term girlfriend (Arenda D.), their two children (M.W., age 7; B.W., age 4), and Arenda’s two teenagers (H.W., age 14; T.W., age 16) moved into a Greenbrier County home.
• Disclosure: On April 24, 2022, H.W. reported sexual touching by the defendant. She later disclosed penile-vaginal penetration to her therapist and law enforcement, leading to a second forensic interview in August 2022.
• Indictment and Outcome: The grand jury charged multiple counts. The jury ultimately convicted on two counts of sexual abuse by a person in a position of trust, one count of incest, and one count of third-degree sexual assault. All sentences ran concurrently (10–20 years on each sexual-abuse count; 5–15 years on incest; 1–5 years on sexual assault).
• Defense Theory at Trial: The defense cross-examined H.W. on her earlier uncertainty over whether the defendant might have been asleep and presented Arenda’s testimony that she intermittently observed the defendant sleeping when checking on the children. The defendant testified he was awakened by his young daughter M.W., felt nauseated, apologized to M.W. for pulling her hair as he disentangled himself, and denied assaulting H.W. He did not testify that he was asleep during the alleged assault.
• Instructional Dispute: The defense tendered an unconsciousness/automatism instruction; the circuit court refused and gave a general instruction on intent.

Note: The opinion contains a likely typographical date (testimony referencing “April 24, 2020” in describing events otherwise anchored in 2022). Nothing in the decision turns on this discrepancy.

Analysis

Precedents Cited and Their Role

• State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996):
  • Syllabus Point 3 (quoted by the Court): “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.”
  • Also cited for the proposition that “the question of whether a jury was properly instructed is a question of law, and the review is de novo.” (Syl. Pt. 1, in part).
  • Importance here: Hinkle furnishes both the substantive threshold (“reasonable evidence” of unconsciousness at the time of the offense) and the standard of review on instructional adequacy.
• State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994):
  • Syllabus Point 12: Whether facts justify delivering a particular instruction is reviewed for abuse of discretion, with evidence viewed in the light most favorable to the prosecution after conviction.
  • Syllabus Point 11: Refusal to give a requested instruction is reversible only if (1) the instruction correctly states the law; (2) it is not substantially covered elsewhere in the charge; and (3) it concerns an important point so that the refusal seriously impairs the defense.
  • Derr also cites State v. Gum for the principle that a trial court can refuse an instruction not supported by sufficient evidence.
  • Importance here: Derr frames both the review posture and the test for when refusal is reversible error; it anchors the Court’s deference to the trial court’s evidentiary call under the “reasonable evidence” threshold.
• State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996):
  • Quoted for the general right to an instruction reflecting a defense theory that has evidentiary support.
  • Importance here: The Court reaffirms a defendant’s entitlement to a defense-tailored instruction—but only where there is a factual foundation, which it found lacking.
• State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995):
  • Syllabus Point 4 (in part): Jury instructions are assessed as a whole; the question is whether they adequately informed the jury and did not mislead it.
  • Importance here: Supports the Court’s fallback conclusion that, even apart from the Hinkle threshold, the jury was adequately instructed on intent, sufficiently covering the gravamen of the defense’s theory as framed on the trial evidence.
• State v. Gum, 172 W. Va. 534, 309 S.E.2d 32 (1983) (via Derr):
  • Supports refusal where requested instructions are not grounded in the evidence.

Legal Reasoning

The Court’s reasoning proceeds in two related steps—first a sufficiency gatekeeping inquiry under Hinkle and Derr, then a holistic adequacy review under Guthrie:

1. No “reasonable evidence” of unconsciousness at the time of the offense.
   • Defendant’s own account: He did not testify that he was asleep or otherwise unconscious during the relevant conduct. Instead, he denied any sexual touching of H.W. and offered a benign explanation (waking nauseated; disentangling from M.W.; apologizing for pulling M.W.’s hair).
   • Victim’s testimony: She described a series of purposeful acts—pulling down clothing, digital then penile penetration, adjusting clothing back up, getting up from the bed—interrupted by the defendant’s audible apology to M.W. That apology, and the coherent sequence of actions, strongly indicate consciousness.
   • Prior speculation neutralized: On cross, H.W. acknowledged prior confusion about whether the defendant might have been asleep. On redirect, she clarified that such speculation reflected emotional difficulty accepting the conduct, not an observation of sleep; she ultimately said, “I don’t think he was [asleep].”
   • Arenda’s intermittent observations: Her occasional check-ins showed the defendant sleeping at some points, but not during the alleged assault; this did not amount to “reasonable evidence” that he was unconscious at the time of the offense. Hinkle’s temporal anchor—“at the time of the commission of the crime”—is decisive.
   • Bottom line: Without reasonable evidence that the defendant was unconscious during the offense, the trial court acted within its discretion to refuse the instruction. Derr’s abuse-of-discretion standard—applied to the factual predicate for the instruction—supports affirmance.
2. Jury charge as a whole sufficiently covered the defense’s thrust.
   • Even if the court assumed arguendo that an automatism theory was “in play,” the general instructions addressed intent, including the maxim that a person may be inferred to intend the immediate and necessary consequences of his acts. This permitted the jury to decide whether the defendant intentionally engaged in the acts described.
   • Under Guthrie, the instructions must be read as a whole; the Court found they adequately framed the intent question and did not mislead the jury. Under Derr’s three-part test, the second prong—whether the requested instruction was substantially covered—cuts against reversal.

The trial court’s passing observation that there was “no evidence … of a condition or disorder” implicitly recognizes the kind of proof typically presented to support sleep-related automatism (e.g., medical or expert evidence). The Supreme Court, however, did not impose a categorical expert-evidence requirement; it affirmed on the narrower ground that the record lacked reasonable evidence of unconsciousness during the offense, expert or otherwise.

Impact

This decision reinforces several practice-shaping propositions in West Virginia criminal cases involving alleged automatism or unconsciousness:

• Temporal precision is essential. Evidence must reasonably show the defendant was unconscious at the time of the charged acts. Proof that the defendant slept before or after, or generalized speculation that he “might have been asleep,” is insufficient.
• Objective indicia of consciousness matter. Purposeful, sequential conduct (e.g., manipulating clothing, sequential penetration, moving from bed to bathroom/garage) and contemporaneous verbal responses (apologizing to a child) are potent evidence of awareness that defeats an unconsciousness instruction.
• Defense framing must match the evidence. A defendant who denies committing the acts at all faces an uphill climb to secure an unconsciousness instruction premised on non-volition rather than non-occurrence. Inconsistent defenses are not per se barred, but the record must contain reasonable evidence supporting each requested instruction.
• General intent instructions may suffice when the record lacks an automatism predicate. The Court’s reliance on the overall adequacy of intent instructions suggests that, absent specific automatism evidence, conventional mens rea guidance can be enough to present the defense’s theory to the jury.
• Practical takeaway for counsel: To obtain an automatism instruction, assemble evidence tied to the offense window—eyewitness observations of sleep behaviors, contemporaneous incoherence, medical history of parasomnias, sleep-disorder diagnoses, or expert testimony connecting the phenomenon to the defendant and the incident. Mere testimony that the defendant was seen sleeping at other times will not suffice.

Because this is a memorandum decision under Rule 21, the Court signaled that it found no substantial question of law and no prejudicial error on the record presented. Justice Bunn’s dissent, urging oral argument and a formal opinion, suggests some appetite to explore the doctrinal contours more fully; however, the majority’s application of Hinkle is straightforward and will guide trial courts in similar cases.

Complex Concepts Simplified

• Unconsciousness / Automatism: A legal concept asserting that a person’s movements were not the product of conscious will (e.g., sleepwalking, seizures). Unlike insanity (which concerns mental disease or defect affecting responsibility), automatism negates the voluntary “act” element (actus reus). In West Virginia, Hinkle recognizes that if there is reasonable evidence the defendant was unconscious when the crime occurred, the jury must be instructed that such unconsciousness defeats criminal liability.
• “Reasonable evidence” threshold: The defense is entitled to an instruction only if some evidence reasonably supports the theory. Speculation, inferences divorced from the critical time period, or evidence consistent with consciousness will not trigger the instruction.
• Standards of review for jury instructions:
  • Abuse of discretion governs whether the evidentiary record justified giving a particular instruction (Derr).
  • De novo review applies to whether the instructions, as a whole, correctly stated and applied the law (Hinkle; Guthrie).
  • Refusal reversible error test (Derr): To reverse for refusal, the requested instruction must be (1) a correct statement of law, (2) not substantially covered by other instructions, and (3) central enough that its absence seriously impaired the defense.
• Voluntariness vs. Intent: Voluntariness (whether the act was the product of conscious will) is analytically distinct from intent (the mental state accompanying the act). An automatism defense targets voluntariness. In this case, the Supreme Court found no evidence to put voluntariness in issue, and deemed the general intent instructions sufficient to let the jury resolve the core dispute presented by the actual evidence.

Application to the Record

The Court’s conclusion that no unconsciousness instruction was warranted rests on several record-specific pillars:

• The defendant’s own testimony never asserted unconsciousness; he denied the assault and described being awake and speaking (apologizing to M.W.) during the relevant timeframe.
• The victim’s description of coordinated acts and the defendant’s responsive statement (“sorry”) is inconsistent with automatism.
• H.W.’s earlier musings about whether the defendant was asleep were expressly retracted as confusion, not an observation; she concluded, “I don’t think he was [asleep].”
• Arenda’s observations were intermittent and did not capture the offense moment; seeing the defendant asleep at other times did not amount to “reasonable evidence” of unconsciousness when the assault occurred.

Limitations and Unanswered Questions

• No bright-line rule on expert testimony: Although the trial judge remarked there was no evidence of a “condition or disorder,” the Supreme Court did not hold that medical or expert evidence is required to obtain an automatism instruction. The opinion leaves open what kind and quantum of non-expert evidence might suffice, provided it is tethered to the offense moment.
• “Semi-consciousness” terminology: The proposed instruction referenced “semi-consciousness.” The Supreme Court adhered to Hinkle’s standard of “unconsciousness,” without elaborating on whether and when partial awareness can negate voluntariness. Future cases may explore that nuance.
• Interplay with specific-intent crimes: The trial court instructed that each charged offense required “specific intent.” The opinion does not analyze whether each statute truly requires specific intent; rather, it holds that the instructions, taken together, sufficiently framed the jury’s task on the evidence presented.

Conclusion

State v. Timothy W. reaffirms a disciplined approach to automatism instructions in West Virginia: courts must look for reasonable evidence showing the defendant was unconscious at the critical moment of the offense. The case underscores that speculation rooted in a witness’s emotional struggle to process abuse, or observations that a defendant slept at other times, will not meet Hinkle’s threshold. Purposeful, sequential conduct and contemporaneous verbalizations are strong indicators of consciousness that defeat an unconsciousness instruction.

Practically, the decision instructs defense counsel to ground any automatism request in concrete, temporally anchored proof—ideally corroborated by medical history or expert evidence—while reminding prosecutors to highlight purposeful conduct and contemporaneous speech as markers of awareness. Although the Court disposed of this matter by memorandum decision, its application of Hinkle, Derr, LaRock, and Guthrie offers clear guidance: absent reasonable, offense-timed evidence of unconsciousness, a trial court does not abuse its discretion in refusing an automatism instruction, and general intent instructions will suffice to frame the issues for the jury.

Citation: State of West Virginia v. Timothy W., No. 23-518 (W. Va. Oct. 21, 2025) (memorandum decision) (affirmed). Justice Bunn dissented, favoring oral argument and a formal opinion.