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Man pleads guilty to child neglect

Simmons

Simmons

ELKINS — A Harrison County man accused of using an inhalant and passing out behind the wheel of his car with a toddler in the vehicle entered into a plea agreement Friday in Randolph County Circuit Court.

Joseph Allen Simmons II, 23, Mount Clare, pleaded guilty to one felony count of child neglect creating substantial risk of injury or death, as part of the agreement.

The prosecution dismissed one misdemeanor count of unrestrained child in vehicle and one separate and unrelated misdemeanor count of driving under the influence. They also agreed to stand silent at the sentencing hearing.

Randolph County Assistant Prosecuting Attorney Richard Shryock represented the state while Simmons appeared with William Tyler “Ty” Nestor as defense counsel. Circuit Judge David Wilmoth presided.

According to a criminal complaint filed in Randolph County Magistrate Court, at approximately 7:53 p.m. on July 17, 2016, Senior Patrolman B.D. Tice and Patrolman A.M. Wyshyvanuk, both of the Elkins Police Department, responded to a call of immediate assistance needed on South Randolph Avenue in front of Colonial Court.

Once there, officers found a black Jeep Wrangler sitting, facing northbound, in the southbound lane with an unconscious male in the driver’s seat. When the two officers arrived, they found Deputy R.H. Foster of the Randolph County Sheriff’s Office, already on scene but off duty, the complaint states.

Foster said the male driver passed out behind the wheel when he was approaching. He added he attempted to wake the man up but he was slow to respond and “woke all dazed looking,” court documents state.

Foster also said he observed a can of air duster in between the driver’s legs. Wyshyvanuk removed the driver from the vehicle and identified him as Simmons. Officers then located a female toddler in a car seat but unrestrained, according to the complaint.

Grandparents of the child were contacted to retrieve the toddler while Simmons was asked to perform field sobriety tests, police said. He showed slight delay in the Horizontal Gaze Nystagmus test and passed all the other tests “due to the effects of inhalants wearing off fast but having an intense and immediate effect on the body,” according to the complaint.

A witness statement alleges Simmons was passed out but “raised his head and started huffing something out of a can” while the witness was on the phone with police dispatchers, the complaint stated.

Three days prior to the incident, West Virginia State Police Cpl. J.R. Wince had arrested Simmons for DUI, also for using inhalants while operating a motor vehicle, police said.

A can of compressed air was located in the Jeep that was “cold to the touch and wet on the outside,” both of which are signs consistent with the can being recently used, the complaint states.

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