The Supreme Court issues one order today that affirms a conviction for abuse or neglect of a vulnerable adult, resolving the case on sufficiency-of-the-evidence grounds while deliberately leaving a broader statutory question open.
On November 9, 2022, bystanders discovered Jason Fergeson standing over his girlfriend Lindsey Thompson, who was slumped unconscious against a tree behind a motel, pale and blue-lipped. Rather than seeking help, Fergeson asked the bystanders for a ride and tried to discourage them from calling 911, claiming that Thompson “does that all the time.” He physically blocked bystanders from approaching Thompson to perform CPR and falsely reported to the 911 operator that she was breathing normally. By the time paramedics arrived, Thompson had suffered complete respiratory failure. She required mechanically-assisted breathing and an intravenous Narcan drip, which the Commonwealth’s forensic toxicologist believed suggested that physicians believed Thompson would immediately relapse and die without continuous infusion. Her bloodwork revealed morphine, cocaine, and fentanyl at roughly ten times the sedating dose, likely from illicit manufacturing. Thompson survived and discharged herself the following day.
At a bench trial, Fergeson was convicted of misdemeanor abuse or neglect of a vulnerable adult under Code § 18.2-369(C) and attempted interference with a 911 call. The Court of Appeals affirmed by published opinion.
The Supreme Court granted an appeal on the sole issue of whether Thompson qualified as a “vulnerable adult” under the statute, which defines vulnerability as a person 18 or older impaired by reason of mental illness, intellectual or developmental disability, physical illness or disability, or “other causes, including age,” to the extent the adult lacks capacity to make reasonable decisions about her well-being or to independently provide for her daily needs. Fergeson argued the statute was intended to protect only those with chronic, developmental, or long-lasting conditions, pointing to the absence of any reference to intoxication and invoking the rule of lenity. The Commonwealth countered that the statute contains no temporal limitation and that the limiting principle is the severity, not the duration, of the impairment.
But the Court declined to resolve this broader question, instead invoking the doctrine of judicial restraint and deciding the case on the narrowest available ground. A rational trier of fact, the Court held, could find that Thompson’s condition was not mere temporary intoxication but a near-fatal overdose: she suffered complete respiratory failure, required mechanical ventilation, and survived only through extraordinary medical intervention. That condition falls within the statute’s plain language regardless of whether it is classified as a “physical illness or disability” or an “other cause.” The Court endorsed the Court of Appeals’ analogy to a stroke, which is an episode that may be brief or lasting, but that unquestionably constitutes an illness impairing the victim while it persists. Because the statutory language unambiguously covered Thompson’s situation, the Court found no occasion to invoke canons of construction, including the rule of lenity, which applies only where a penal statute is genuinely ambiguous.
The Court’s opinion is intentionally narrow. It confirms that a near-fatal drug overdose—as distinguished from ordinary intoxication by its severity and the medical intervention required—supports a “vulnerable adult” finding under Code § 18.2-369(C). Whether a lesser degree of temporary impairment could also qualify remains an open question for future litigation.
A Virginia Appellate Law Blog 