           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                    January 2014 Term
                                                                           FILED
                                                                        June 5, 2014
                                                                        released at 3:00 p.m.
                                       No. 13-0910                    RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA



                            DAVID BALLARD, Warden
                          Mount Olive Correctional Complex,
                            Defendant Below, Petitioner

                                            v.

                               ROBERT JUNIOR THOMAS,
                               Petitioner Below, Respondent



                   Appeal from the Circuit Court of Wyoming County
                     The Honorable Robert A. Burnside, Jr., Judge
                                  Case No. 11-C-180

                                       REVERSED


                                 Submitted: May 6, 2014
                                   Filed: June 5, 2014

Patrick Morrissey, Esq.                                 David Kirkpatrick, Esq.
Attorney General                                        Kirkpatrick Law Office
Christopher S. Dodrill, Esq.                            Beckley, West Virginia
Assistant Attorney General                              Attorney for Respondent
Charleston, West Virginia
Attorneys for Petitioner


The Opinion of the Court was delivered PER CURIAM.
JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
                             SYLLABUS BY THE COURT


              1.     “In reviewing challenges to the findings and conclusions of the

circuit court in a habeas corpus action, we apply a three-prong standard of review. We

review the final order and the ultimate disposition under an abuse of discretion standard;

the underlying factual findings under a clearly erroneous standard; and questions of law

are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633

S.E.2d 771 (2006).



              2.     “A trial court lacks jurisdiction to enter a valid judgment of

conviction against an accused who was denied effective assistance of counsel and a

judgment so entered is void.” Syl. Pt. 25, State v. Thomas, 157 W. Va. 640, 203 S.E.2d

445 (1974).



              3.     “In the West Virginia courts, claims of ineffective assistance of

counsel are to be governed by the two-pronged test established in Strickland v.

Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s

performance was deficient under an objective standard of reasonableness; and (2) there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.” Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459

S.E.2d 114 (1995).




                                            i
              4.     “In reviewing counsel’s performance, courts must apply an objective

standard and determine whether, in light of all the circumstances, the identified acts or

omissions were outside the broad range of professionally competent assistance while at

the same time refraining from engaging in hindsight or second-guessing of trial counsel’s

strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have

acted, under the circumstances, as defense counsel acted in the case at issue.” Syl. Pt. 6,

State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).



              5.     “Where a counsel’s performance, attacked as ineffective, arises from

occurrences involving strategy, tactics and arguable courses of action, his conduct will be

deemed effectively assistive of his client’s interests, unless no reasonably qualified

defense attorney would have so acted in the defense of an accused.” Syl. Pt. 21, State v.

Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).



              6.     “A term which is widely used and which is readily comprehensible

to the average person without further definition or refinement need not have a defining

instruction.” Syl. Pt. 2, State v. Bartlett, 177 W. Va. 663, 355 S.E.2d 913 (1987).



              7.     “An instruction for a statutory offense is sufficient if it adopts and

follows the language of the statute, or uses substantially equivalent language and plainly

informs the jury of the particular offense for which the defendant is charged.” Syl. Pt. 8,

State v. Slie, 158 W. Va. 672, 213 S.E.2d 109 (1975).


                                             ii
Per Curiam:



               Petitioner David Ballard, Warden of the Mount Olive Correctional

Complex, (hereinafter “petitioner”) appeals the Circuit Court of Wyoming County’s July

23, 2013, order granting respondent Robert Junior Thomas’ (hereinafter “respondent”)

petition for a writ of post-conviction habeas corpus following his conviction of one count

of sexual abuse by a parent, guardian, custodian or person in a position of trust to a child

pursuant to West Virginia Code § 61-8D-5(a) (2005). The circuit court found that

respondent’s trial defense counsel was ineffective for failing to offer adequate jury

instructions on whether respondent was a “person in a position of trust” as to the victim,

L. M.1 (hereinafter “L. M.”) and whether L. M. was under respondent’s “care, custody, or

control” at the time of the sexual encounter at issue.



              Upon careful review of the briefs, the appendix record, the arguments of the

parties, and the applicable legal authority, we find that the circuit court erred in granting

respondent’s petition for post-conviction habeas corpus. We therefore reverse the order

of the circuit court and order respondent remanded back into the custody prescribed by

the original sentencing order in this matter to serve out the remainder of his sentence.



       1
        We follow our past practice in cases which involve sensitive facts pertaining to
juveniles and do not utilize the juvenile’s name. See, e.g., West Virginia Dept. of Human
Services v. La Rea Ann C.L., 175 W. Va. 330, 332 S.E.2d 632 (1985).




                                              1
                        I. FACTS AND PROCEDURAL HISTORY

                 At the time of the underlying offense, L. M. was a sixteen-year-old student

enrolled in the Wyoming County Board of Education summer school program;

respondent was one of her bus drivers and had driven her to school for approximately two

weeks. At some point during that two-week period, L. M. came into possession of a note

written by respondent which read: “Hey baby girl you are the sweetest most beautiful

woman I no I wish I could spend the Rest of my life with you I need you and have you

need me To baby girl.”2 L. M. also had two notes containing respondent’s cell phone

number.3 On the bus ride home the afternoon of July 24, 2007, L. M. contends that

respondent told her he was aware of her failing grades and could help her with her grades

if she would meet him later that evening. L. M. testified that respondent told her to watch

the security cameras at her home for him to drive by and he would pick her up. L. M.

testified that she pretended to go to bed that evening, but snuck out of her bedroom

window and got into respondent’s car when he arrived.



                 Respondent drove L. M. to a nearby campground where she claims that

respondent locked the car doors, gave her a drink which made her nauseous and sleepy,


        2
            Respondent admitted writing the note, but contended he had written it to his
wife.
        3
         Respondent claimed he had given his cell number to students who rode his bus
so they could be in contact regarding the bus route.

                                               2
then proceeded to rape her.4 Respondent initially denied recalling any sexual contact

because he had been drinking that evening, but after confirmatory DNA testing was

completed, he acknowledged that he and L. M. had sex, but contended it was consensual.

Upon discovering L. M. missing from her bedroom that evening, her parents reported her

as a runaway and, as a result, she was detained by the police when she showed up at

school the following day.     In an initial statement given at school, which she later

recanted, L. M. indicated that she left her home at midnight and walked to “Jason’s”

house where she stayed an hour and fifteen minutes; she then called an individual named

Aaron Kent, at whose home she spent the night while his girlfriend was at work.5



               Respondent was indicted on October 6, 2008, on one felony count of

violating West Virginia Code § 61-8D-5(a) entitled, in part, “Sexual abuse by a parent,

guardian, custodian or person in a position of trust to a child[.]”6 The entire crux of


       4
         For the first time during her trial testimony apparently, L. M. stated that after
their sexual encounter, respondent showed her a gun and threatened to kill her sister if
she told.
       5
          L. M.’s testimony regarding the events of July 24 were highly inconsistent, as
was her description of the interactions between her and respondent leading up to that
night. The significance of this particular version of events, as discussed more fully infra,
is that respondent claims that L. M. was a runaway and moving from place to place that
night and therefore was in no one’s “care, custody, or control.” See n.7 infra.
       6
        The indictment, however, makes reference to the pre-2005 title of the statute,
“Sexual Abuse by Parent, Guardian or Custodian” and omits any reference to “person in
a position of trust.” This omission is a curiously recurrent theme throughout the
underlying proceedings, as discussed infra.

(continued . . .)
                                             3
respondent’s defense was that, at the time of the sexual encounter, L. M. was no longer in

the “care, custody, or control” of respondent, which ended, he argued, after she got off of

the school bus upon arriving at home. This defense was argued during opening, closing,

and the examination of virtually every witness.7 In fact, the defense called the Director


       In 2005, the statute was amended to add “person in a position of trust” to the
“parent, guardian or custodian” language throughout. The 2005 statute would have been
controlling in this matter. West Virginia Code § 61-8D-1(12) was amended as well to
include the following definition of a “person in a position of trust”:

                A “person in a position of trust in relation to a child” refers to
                any person who is acting in the place of a parent and charged
                with any of a parent’s rights, duties or responsibilities
                concerning a child or someone responsible for the general
                supervision of a child’s welfare, or any person who by virtue
                of their occupation or position is charged with any duty or
                responsibility for the health, education, welfare, or
                supervision of the child.

(emphasis added). The jury was not instructed on this definition.
       7
           During closing, defense counsel argued:

               She was doing very adult things. She was sneaking out of
               windows, she was being a runaway more than once. She was
               doing what she wanted to, and I would say that no one had
               any control over this young lady, let alone a bus driver that
               saw here [sic] twice a day for a few minutes, picked her up
               and dropped her off. . . . [W]ho’s really responsible here? I
               have children, I have a child in school. I send her to school,
               she’s on teacher’s time. She’s there, I’m saying you’ve got
               her, till she may ride the bus home. She’s transferred from
               teacher to bus driver, bus driver to bring her home, then she’s
               my responsibility, period. I don’t care how old she is, my
               responsibility. . . . Mr. Thomas wasn’t under any type of
               controlling position over her that night. . . . His control over
               her was minimal. We had testimony from the bus driver and
               from the transportation board that says that the bus driver’s
(continued . . .)
                                                4
of Transportation for the Wyoming County Board of Education to testify regarding the

parameters of bus drivers’ authority and control over students while on the bus and after

they are dropped off at home. At the close of evidence, the State and the defense offered

two jury instructions each; both of the defense’s instructions were ultimately withdrawn.



             On November 4, 2009, the jury found respondent guilty and the trial court

sentenced him to ten to twenty years in the penitentiary. His direct appeal was refused by

this Court on September 22, 2010. 8 Respondent filed the instant petition for post-

conviction habeas corpus relief on December 1, 2011. At the habeas corpus proceedings

held on September 28, 2012, respondent called two witnesses:          his former defense

counsel, Thomas Evans, III (hereinafter “Mr. Evans”), and Mr. Evans’ investigator.




             duty is basically to get you from Point A to Point B. . . . I
             think the evidence is obvious that there is some doubt,
             reasonable doubt that all 13 of you could conclude whether he
             was in any kind of a custodial, care-giving, controlling role
             over this young woman. . . . [A] reasonable person is going to
             conclude that he had no control over her, nor did her parents,
             nor did the teachers. No one did.
      8
         In his direct appeal, respondent argued 1) improper prosecutorial remarks during
closing argument; 2) the statutory phrase “other persons in a position of trust in relation
to a child under his or her care, custody and control” was unconstitutionally vague; 3)
insufficiency of the evidence; and 4) disproportionate sentence.


                                            5
Respondent alleged multiple claims for habeas corpus relief,9 but argued primarily that

Mr. Evans was ineffective due to his failure to submit proper jury instructions.



              On July 23, 2013, the circuit court granted respondent’s petition for habeas

corpus relief and ordered a new trial. The circuit court found that Mr. Evans was

ineffective for failure to proffer “an instruction that would guide the jury” on whether

respondent met all of the “special circumstances” contained in West Virginia Code § 61-

8D-5(a).    The circuit court further found that such failure prejudiced respondent

inasmuch as the trial was “fundamentally flawed by the absence of jury instructions on a

factual point that was critical not just to the determination of guilt, but to the question of

whether a crime had been committed at all.” The State thereafter filed the instant

appeal.10



                             II. STANDARD OF REVIEW

              This Court has held:

              In reviewing challenges to the findings and conclusions of the
              circuit court in a habeas corpus action, we apply a three-prong
       9
         Other grounds alleged included 1) use of perjured testimony by the prosecution;
2) inaccuracies in the presentence report; 3) failure to provide defendant copy of
indictment; 4) defects in the indictment; 5) refusal to subpoena witnesses; 6)
nondisclosure of grand jury minutes and witness notes; 7) sufficiency of the evidence; 8)
absence of defendant; 9) more severe sentence than expected; 10) error in amount of
credit for time served. The circuit court’s order did not address these other issues.
       10
        The parties represented during oral argument that the circuit court ordered
respondent to be placed on home incarceration pending the outcome of this appeal. See
W. Va. Code § 62-11B-3 (1994).

                                              6
              standard of review. We review the final order and the ultimate
              disposition under an abuse of discretion standard; the
              underlying factual findings under a clearly erroneous
              standard; and questions of law are subject to a de novo
              review.

Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). With this

standard in mind, we proceed to the parties’ arguments.



                                    III. DISCUSSION

              It is well-established that “[a] trial court lacks jurisdiction to enter a valid

judgment of conviction against an accused who was denied effective assistance of

counsel and a judgment so entered is void.” Syl. Pt. 25, State v. Thomas, 157 W. Va.

640, 203 S.E.2d 445 (1974). Whether a defendant is entitled to habeas relief for

ineffective assistance of counsel is guided by the following test:

              In the West Virginia courts, claims of ineffective assistance
              of counsel are to be governed by the two-pronged test
              established in Strickland v. Washington, 466 U. S. 668, 104 S.
              Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance
              was deficient under an objective standard of reasonableness;
              and (2) there is a reasonable probability that, but for counsel’s
              unprofessional errors, the result of the proceedings would
              have been different.

Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) (hereinafter

“Miller/Strickland”).



A.     Deficiency of Counsel’s Performance/Adequacy of Jury Instructions

              With respect to the deficiency of counsel’s performance, we have held:


                                              7
              In reviewing counsel’s performance, courts must apply an
              objective standard and determine whether, in light of all the
              circumstances, the identified acts or omissions were outside
              the broad range of professionally competent assistance while
              at the same time refraining from engaging in hindsight or
              second-guessing of trial counsel’s strategic decisions. Thus, a
              reviewing court asks whether a reasonable lawyer would have
              acted, under the circumstances, as defense counsel acted in
              the case at issue.

Syl. Pt. 6, Miller. Moreover, “[w]here a counsel’s performance, attacked as ineffective,

arises from occurrences involving strategy, tactics and arguable courses of action, his

conduct will be deemed effectively assistive of his client’s interests, unless no reasonably

qualified defense attorney would have so acted in the defense of an accused.” Syl. Pt. 21,

Thomas, 157 W. Va. 640, 203 S.E.2d 445.



              Respondent was charged with violating West Virginia Code § 61-8D-5(a)

which provides, in pertinent part:

              If any parent, guardian or custodian of or other person in a
              position of trust in relation to a child under his or her care,
              custody or control, shall engage in or attempt to engage in
              sexual exploitation of, or in sexual intercourse, sexual
              intrusion or sexual contact with, a child under his or her care,
              custody or control, notwithstanding the fact that the child
              may have willingly participated in such conduct, or the fact
              that the child may have consented to such conduct or the fact
              that the child may have suffered no apparent physical injury
              or mental or emotional injury as a result of such conduct, then
              such parent, guardian, custodian or person in a position of
              trust shall be guilty of a felony and, upon conviction thereof,
              shall be imprisoned in a correctional facility not less than ten
              nor more than twenty years, or fined not less than $500 nor
              more than $5,000 and imprisoned in a correctional facility not
              less than ten years nor more than twenty years.


                                             8
(emphasis added). As previously noted, both the State and the defense offered two jury

instructions. State’s Instruction No. 1 tracks the pre-2005 statutory language and the

language of the indictment 11 as well as providing definitions for the terms “child,”


      11
           State’s Instruction No. 1, as given, reads:

                      The offense charged in Count One of the Indictment in
               this case is Sexual Abuse By A Parent, Guardian, Custodian
               of a child. One of two verdicts may be returned by you under
               this Count of the Indictment. They are: (1) guilty of Sexual
               Abuse By A Parent, Guardian or Custodian of a child; and (2)
               not guilty.

                       Sexual Abuse By a Parent, Guardian, Custodian Of A
               Child is committed when any parent, guardian or custodian of
               a child under his or her care, custody or control engages in or
               attempts to engage in sexual exploitation of, or in sexual
               intercourse, sexual intrusion or sexual contact with a child
               under his or her care, custody or control, notwithstanding the
               fact that the child may have willingly participated in such
               conduct, or the fact that the child may have consented to such
               conduct or the fact that the child may have suffered no
               apparent physical injury or mental or emotional injury as a
               result of such conduct.

               ***
                       The burden is on the State to prove the guilt of the
               Defendant beyond a reasonable doubt and the Defendant,
               Robert Junior Thomas is not required to prove himself
               innocent. He is presumed by the law to be innocent of this
               charge and this presumption remains with him throughout the
               entire trial.

                     Before the Defendant, Robert Junior Thomas can be
               convicted of Sexual Abuse By A Parent, Guardian, or
               Custodian Of A Child the State of West Virginia must
               overcome the presumption that the Defendant, Robert Junior
               Thomas is innocent and prove to the satisfaction of the jury
               beyond a reasonable doubt that:
(continued . . .)
                                               9
“parent,” “custodian,” “guardian,” “sexual intercourse,” “sexual intrusion,” “sexual

contact,” and “sexual exploitation.” Nowhere in State’s Instruction No. 1 is the term

“person in a position of trust” included, which category of offender was added to the

controlling 2005 version of West Virginia Code § 61-8D-5(a). State’s Instruction No. 2

is merely a reiteration of that portion of the statute which states that one can violate the

statute notwithstanding the fact that the child may have willingly participated, consented,

or suffered no injury. It is only in this jury instruction that the phrase “person in a



                     The Defendant, Robert Junior Thomas on,
                     before and about the 24th day of July, 2007 in
                     Wyoming County, State of West Virginia
                     committed the offense of “Sexual Abuse By
                     Parent, Guardian or Custodian” by unlawfully
                     and feloniously subjecting [L. M.] to sexual
                     exploitation or sexual intercourse, intrusion or
                     contact when said child was under his care,
                     custody or control. That the Defendant, Robert
                     Junior Thomas was then the parent, guardian,
                     custodian of said child, which child was under
                     his care, custody or control.

                     If after impartially considering, weighing and
              comparing all the evidence, both that of the State and that of
              the Defendant the jury and each member of the jury is
              convicted beyond a reasonable doubt of the truth of the
              charge as to each of these elements of Sexual Abuse By A
              Parent, Guardian, Custodian of a child, you may find Robert
              Junior Thomas guilty of Sexual Abuse By A Parent,
              Guardian, Custodian Of A Child as charged in Count One of
              the Indictment. If the jury and each member of the jury has a
              reasonable doubt of the truth of the charge as to any one or
              more of these elements of Sexual Abuse By A Parent,
              Guardian, Custodian Of A Child, you shall find the
              Defendant, Robert Junior Thomas not guilty.


                                            10
position of trust” appears.     The defense offered two instructions:        a “clean slate”

instruction which was covered in the court’s charge and an instruction on the elements of

the statute, 12 which largely mirrored, but was not as comprehensive as, the State’s

instruction. Both of the defense instructions were withdrawn for these reasons.



              The parties disagree as to the basis of the circuit court’s grant of habeas

relief, that is, which statutory elements required additional jury instructions to be

proffered by defense counsel, as determined by the circuit court. This disagreement is

undoubtedly based upon the somewhat cryptic and imprecise order entered by the circuit

court. Nevertheless, the following constitute the three arguable deficiencies in the jury

instructions identified in the circuit court’s order: 1) the lack of definition for “person in

a position of trust”13; 2) the lack of definition for “care, custody, or control”; and 3) the

lack of instruction regarding the required “temporal” connection between these elements,

i.e. that L. M. must have been in respondent’s “care, custody or control” at the time of the

offense.14 The State argues that the circuit court based its grant of habeas relief on #3,


       12
          This withdrawn instruction likewise fails to include the phrase “person in a
position of trust.”
       13
          In its order, the court noted that “[t]he terms ‘position of trust,’ ‘care,’ or
‘control’ are not defined in the statute.” This is obviously incorrect as to “position of
trust” inasmuch as it is defined in West Virginia Code § 61-8D-1(12). See n.6, supra.
       14
          This purported requirement of West Virginia Code § 61-8D-5(a) ostensibly
arises from State v. Longerbeam, 226 W. Va. 535, 540, 703 S.E.2d 307, 312 (2010),
wherein the Court found that there was insufficient evidence to convict the appellant
because “the record makes clear that [the victim] was not under [the appellant’s] care and
(continued . . .)
                                             11
only; respondent claims that the circuit court based it on #1 and #2.               Given the

extraordinary nature of habeas relief, we will address all three.



              1.      Lack of instruction on definition of “person in a position of trust.”

              Respondent contends that the circuit court properly found that the lack of

jury instruction on the definition of “person in a position of trust” constituted deficient

performance by counsel. At the outset, we note that we are puzzled by the circuit court

and parties’ failure to acknowledge that the phrase “person in a position of trust” was

omitted entirely from the indictment and State’s Instruction No. 1—all in spite of their

collective preoccupation with the fact that the jury was not provided with a definition for

this term. The term was used liberally throughout the trial and both the circuit court

order and parties’ briefs refer to it on countless occasions. In fact, only respondent



custody at the time of the incident[.]” First, Longerbeam is a per curiam opinion and
contains no controlling point of law reflective of this “temporal” requirement, as
characterized by the parties. As such, this opinion assumes, arguendo, such a
requirement exists solely for purposes of addressing petitioner’s assignments of error.
Whether a majority of this Court would determine that the statutory language is not so
restrictive as to require a defendant to be acting in his or her statutorily-defined role at the
time of the incident is questionable. In fact, other cases in which this Court has addressed
the subject statute suggest that the “care, custody or control” element may well simply
derive from the statutorily-defined relationship which allows a defendant to commit the
offense. See State v. Collins, 221 W. Va. 229, 234 n.11, 654 S.E.2d 115, 120 n.11 (2007)
(finding that “as a custodian, the Appellant possessed sufficient control over [the victim]
. . . for a jury to properly convict[.]” (emphasis added)); State v. Edmonds, 226 W. Va.
464, 469, 702 S.E.2d 408, 413 (2010) (finding that “control” is defined as “‘exercise[ing]
power or influence over[]’” and that as “person in a position of trust” defendant was able
to exercise sufficient control over victim to uphold conviction). As these cases make
clear, one who qualifies under the statute may exert “control” not constrained by
temporal circumstances.

                                              12
acknowledges in a footnote that the circuit court apparently “missed” the operative 2005

amendment to West Virginia Code § 61-8D-1(12) which provided a definition for

“person in a position of trust.” During the habeas proceeding, Mr. Evans testified that he

could not recall why he did not offer an instruction on the definition of “person in a

position of trust.”



              Clearly, however, both the absence of this phrase from the statutory

instruction and commensurate absence of definition actually inured to respondent’s

benefit.   It is clear that the jury found respondent guilty under the much narrower

category of “custodian” upon which it was properly instructed. “Custodian” is defined as

              a person over the age of fourteen years who has or shares
              actual physical possession or care and custody of a child on a
              full-time or temporary basis, regardless of whether such
              person has been granted custody of the child by any contract,
              agreement or legal proceeding. “Custodian” shall also
              include, but not be limited to, the spouse of a parent, guardian
              or custodian, or a person cohabiting with a parent, guardian or
              custodian in the relationship of husband and wife, where such
              spouse or other person shares actual physical possession or
              care and custody of a child with the parent, guardian or
              custodian.

W. Va. Code § 61-8D-1(4). To whatever extent Mr. Evans noted that “person in a

position of trust” and its definition were missing from the State’s instructions, objecting

to such would not have been in respondent’s best interests inasmuch as the omitted

category is much broader than “custodian.”         Moreover, there is no question that

respondent would fall easily into the “person in a position of trust” category given that

“by virtue of [his] occupation or position [he was] charged with [] responsibility for the

                                            13
health, education, welfare, or supervision of the child.” W. Va. Code § 61-8D-1(12).

Therefore, we do not find that Mr. Evans’ failure to offer an instruction on the definition

of “person in a position of trust” constituted deficient performance.



              2.     Lack of instruction on definition of “care, custody, or control”

              Respondent further contends that the circuit court found the absence of

definitional instruction of the phrase “care, custody, or control” constituted further

deficiency on the part of Mr. Evans. Unlike “person in a position of trust,” the circuit

court correctly noted that there is no statutory definition of “care, custody, or control,”

nor did the defense proffer a proposed instruction attempting to define it. However, this

Court has made clear that “[a] term which is widely used and which is readily

comprehensible to the average person without further definition or refinement need not

have a defining instruction.” Syl. Pt. 2, State v. Bartlett, 177 W. Va. 663, 355 S.E.2d 913

(1987). The Bartlett Court elaborated:

              We have never held that every term in a jury instruction must
              be defined, nor does the petitioner direct us to any authority
              requiring that the term in question be defined. “Reckless
              disregard” is not so arcane a term that the lack of a
              definitional instruction left the jury entirely without guidance.
              The jurors were informed that “reckless disregard” was a
              material element of the offense and that a finding of “reckless
              disregard” was a prerequisite to conviction under W. Va.
              Code, 17C-5-2(a) [1983]. The twelve jurors obviously
              reached a common understanding of what constitutes
              “reckless disregard”, and agreed that the defendant’s conduct
              fell within the ambit of that term.




                                             14
Id. at 667, 355 S.E.2d at 917. See State v. Jett, 220 W. Va. 289, 293, 647 S.E.2d 725, 729

(2007) (“‘Specific words used in instructions which are self-explanatory and readily

understood need not be specifically defined.’” (quoting State v. Schmiedt, 525 N.W.2d

253, 255 (S.D. 1994)); see also State v. Hunter, 2012 WL 2914284, *3 (W. Va. 2012)

(“As to ‘cause,’ petitioner argues for an instruction that is not formulated . . . in West

Virginia.”).



               We have previously noted the absence of statutory definitions for several of

the operative terms in this particular statute. See Collins, 221 W. Va. at 233, 654 S.E.2d

at 119 (2007) (noting that “temporary” and “custody” as contained in W. Va. Code § 61-

8D-1(4) were undefined); Edmonds, 226 W. Va. at 469, 702 S.E.2d at 413 (2010)

(observing that “‘care, custody and control’ are not statutorily defined.”). In Collins, we

affirmed a defendant’s conviction as a “custodian” under this statute where he sexually

assaulted a child he had taken on a four-wheeler ride. We observed that the jury was

provided with a recitation of the operative elements of the statute, along with the

definition of “custodian,” and found that the jury could properly have concluded that

defendant “accepted temporary physical possession and custody” of the child when he

agreed to take her on the four-wheeler ride. Id. at 233-34, 654 S.E.2d at 119-20. We

further noted that the defendant possessed sufficient “control” over the child by refusing

to take the child home until she performed oral sex on him. Id. at 234, n.11, 654 S.E.2d

at 120 n.11.



                                            15
              The absence of definition for the phrase “care, custody, or control”

undoubtedly exists such as to permit the jury to use its collective experience and general

knowledge on these very common terms to make a finding on this element. As in

Bartlett, we find that there is nothing “so arcane” about the term “care, custody or

control,” that the jury was left without guidance as to this element of the statute. 177 W.

Va. at 667, 335 S.E.2d at 917.        Further, in Edmonds, we stated—deferring to its

“‘common, ordinary, and accepted meaning[]’”—that “‘[c]ontrol’ means ‘[t]o exercise

power or influence over.’” 226 W. Va. at 469, 702 S.E.2d at 413. Certainly, had defense

counsel proffered an instruction commensurate with this commonly-accepted definition,

such an instruction, rather than aiding respondent’s cause, may have served only to

highlight respondent’s alleged actions of locking the door, providing L. M. with a drink

which made her nauseous and sleepy, and threatening her and her sister with a gun.

Therefore, we find that the failure to offer a proposed definitional instruction on this term

was not a deficiency in Mr. Evans’ performance.



              3.     Lack of instruction on temporal relationship between offense and
                     child being in respondent’s “care, custody, or control”

              Finally, petitioner urges that the circuit court’s rationale for granting habeas

relief was neither of the alleged instructional deficiencies above, but rather, because there

was inadequate instruction on the “temporal relationship” purportedly required by the

statute. More specifically, the State contends that the circuit court found that the jury was

inadequately instructed on the perceived requirement that L. M. must have been in


                                             16
respondent’s “care, custody or control” at the time the offense was committed.

Nevertheless, the State contends that the jury was adequately instructed since the

operative elements of the statute were read to the jury, essentially verbatim, in State’s

Instruction No. 1. In that regard, we have held that “[a]n instruction for a statutory

offense is sufficient if it adopts and follows the language of the statute, or uses

substantially equivalent language and plainly informs the jury of the particular offense for

which the defendant is charged.” Syl. Pt. 8, State v. Slie, 158 W. Va. 672, 213 S.E.2d 109

(1975); see also State v. Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008) (finding

instruction on wanton endangerment sufficient where it was identical to statutory

language).



              West Virginia Code § 61-8D-5 provides that the offense is committed when

“any parent, guardian or custodian of a child under his or her care, custody or control”

commits an enumerated sexual act “with a child under his or her care, custody or

control.” The jury was so instructed. Similarly, and perhaps more specifically, the

language of the indictment which was also included in State’s Instruction No. 1 required

the State to prove that respondent “unlawfully and feloniously subject[ed] [L. M.] to

sexual exploitation or sexual intercourse, intrusion or contact when said child was under

his care, custody or control [and] that [respondent] was then the parent, guardian,

custodian of said child, which child was under his care, custody or control.” (emphasis

added). As noted hereinabove, see n.14 supra, whether such a “temporal” element exists

has not been determined by this Court. Regardless, however, since the jury was in fact

                                            17
instructed that L. M. being in respondent’s care, custody, and control at the time of the

sexual act was an element of the offense, it was required to make this factual

determination to convict and did so as evidenced by its verdict. See State ex rel. Boso v.

Hedrick, 182 W.Va. 701, 708, 391 S.E.2d 614, 621 (1990) (“Therefore, we find that the

defense counsel’s failure to request an alibi instruction did not constitute ineffective

assistance of counsel since the defense of alibi under the circumstances of this case

involved a question of fact for the jury to resolve in its determination of whether the State

had proved Mr. Boso’s guilt beyond a reasonable doubt.”). Accordingly, we find that the

failure to offer further instruction(s) on the temporal element purportedly contained in

West Virginia Code § 61-8D-5(a) did not constitute deficient performance by counsel.



B. Reasonable probability of different outcome

              Even assuming, arguendo, that counsel’s failure to create additional jury

instructions from whole cloth to elucidate the operative terms of the statute constituted

ineffective assistance, we find that the circuit court clearly erred in concluding that the

second element of the Miller/Strickland test was met.         With regard to the required

showing that counsel’s purported ineffectiveness create a “reasonable probability of a

different outcome,” the United States Supreme Court has observed:

              Attorney errors come in an infinite variety and are as likely to
              be utterly harmless in a particular case as they are to be
              prejudicial. They cannot be classified according to likelihood
              of causing prejudice. Nor can they be defined with sufficient
              precision to inform defense attorneys correctly just what
              conduct to avoid. Representation is an art, and act or omission
              that is unprofessional in one case may be sound or even

                                             18
              brilliant in another. Even if a defendant shows particular
              errors of counsel were unreasonable, therefore, the defendant
              must show that they actually had an adverse effect on the
              defense.

Strickland v. Washington, 466 U. S. 668, 693 (1984).



              The circuit court concluded that the absence of additional jury instruction(s)

on respondent’s lone legal defense created a “fundamentally flawed” trial which

prejudiced respondent.    However, neither the circuit court nor respondent provides

support for the notion that but for the absence of additional instructions there was a

reasonable probability that the verdict would have been different. For this conclusion to

be reached, one would logically have to know what the purported instruction(s) would

have been and whether it may have swayed the outcome. Even the circuit court observed

that

              [s]uch an instruction might have been difficult for counsel to
              draft and for the trial court to analyze and rule upon. But if
              the necessary instruction had been drafted and offered, the
              trial court would have had the duty to rule upon it, and if
              conviction resulted the Supreme Court of Appeals would
              have had the opportunity to determine on direct appeal
              whether the instruction was correct.

The circuit court’s concession that the purported instruction would still be subject to

review by this Court belies its conclusion that there was a “reasonable probability” that if




                                            19
such an instruction had been offered or given, the outcome would have necessarily been

different, as required by Miller/Strickland.15



              Even before this Court, respondent offers no proposed instruction that

would have aided his cause. It is difficult to conceive how the absence of a yet-to-be-

articulated instruction would have resulted in the reasonable probability of respondent’s

acquittal. As stated previously herein, respondent’s only challenge to the substantive

evidence at trial was that since he was not on duty as L. M.’s bus driver at the time of the

sexual encounter, she was not under his “care, custody or control”; therefore, he

committed no criminal offense. It was undisputed that the encounter occurred and that it

occurred well after respondent dropped off L. M. that day; obviously, the jury found that

the encounter derived of their relationship as student/bus driver and that she was under

his care, custody, and control at the time of the encounter.    Respondent fully factually

developed and argued the only viable defense available to him under the circumstances,

which the jury clearly found unavailing as evidenced by its verdict. As such, the circuit

court erred in finding that the second prong of Miller/Strickland was met. See State ex

rel. Wimmer v. Trent, 199 W.Va. 644, 649, 487 S.E.2d 302, 307 (1997). (“Under the

       15
         Any suggestion that somehow this Court’s precedent would compel a different
outcome based on the facts of this case is misplaced. See Edmonds, 226 W. Va. 464, 702
S.E.2d 408 (upholding conviction where maintenance worker/occasional volunteer at a
Christian school picked child up in his van and took her to a house he was remodeling
where he sexually assaulted her); State ex rel. Harris v. Hatcher, No. 13-1236 (May 29,
2014) (holding that whether bus driver who sexually assaulted student at both her house
and his merely creates jury issue on operative elements of West Virginia Code § 61-8D-
5(a)).

                                             20
circumstances the court believes that even if the instruction had been given, it is not

reasonably probable that the jury would have found differently given the overall evidence

in the case.”); State v. Foster, 221 W.Va. 629, 656 S.E.2d 74 (2007) (finding failure to

offer jury instructions did not prejudice defendant and that jury was otherwise properly

instructed); State ex rel. Adkins v. Dingus, 232 W.Va. 677,     , 753 S.E.2d 634, 641

(2013) (finding that “although the facts of the instant case may have been sufficient to

warrant [an] instruction” election not to do so was not unreasonable); Ronnie R. v. Trent,

194 W.Va. 364, 369, 460 S.E.2d 499, 504 (1995) (“We conclude that while the ‘care and

caution’ instruction may have been applicable in the present case, its use was not

mandatory, and trial counsel’s failure to propose it was harmless error.”); Miller, 194 W.

Va. 3, 16-17, 459 S.E.2d 114, 127-28 (“[C]ounsel [is not] required to offer a defense or

instruction on every conceivable defense. . . . We hold that the mere fact that trial counsel

failed to offer a viable defense instruction is not alone a sufficient ground to prove

ineffectiveness of counsel.”); Boso, 182 W. Va. 701, 391 S.E.2d 614 (finding counsel’s

failure to request alibi instruction did not constitute ineffective assistance of counsel).

We therefore conclude that the circuit court erred in granting respondent’s petition for

habeas corpus relief inasmuch as respondent failed to establish that his counsel was

ineffective and that but for his counsel’s purported ineffectiveness, there was a

reasonable probability of a different outcome.




                                             21
                                  IV. CONCLUSION

              For the reasons set forth hereinabove, we reverse the July 23, 2013, order of

the Circuit Court of Wyoming County, West Virginia. We further order that respondent

be remanded into the custody prescribed in the sentencing order originally entered in the

criminal proceeding of this matter to serve out the remainder of his sentence. The Clerk

of this Court shall issue our mandate forthwith.



                                                                                Reversed.




                                            22
