No. 13-0910 – Ballard v. Thomas
                                                                            FILED
                                                                         June 5, 2014
                                                                         released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
                                                                     SUPREME COURT OF APPEALS
Justice Ketchum, dissenting:                                              OF WEST VIRGINIA




              The defendant was convicted of the crime of sexual abuse by a parent,

guardian, custodian or person in a position of trust. However, the indictment did not

charge the defendant with being a “person in a position of trust.” The phrase “person in a

position of trust” was not in the indictment.

              The facts are clear that the defendant, a school bus driver, developed a

relationship with the victim while she rode on the school bus he drove. One night she

snuck from her home and met the defendant when the sexual assault occurred. The entire

crux of the defense was that the defendant was not a person in a position of trust and the

victim was not under his care, custody or control when the sexual assault occurred.

              The applicable statute defines “person in a position of trust in relation to a

child.” The jury was not instructed on this important element of the defense. The

defense lawyer had two general defense instructions but withdrew them. If an instruction

defining a “person in position of trust” had been given, the defense lawyer could have

argued that the defendant, according to the law given by the judge, was not a person in a

position of trust. (See, fn 6 of the majority opinion).

              An effective attorney must offer an instruction on the important elements of

their case which support their defense. I agree with the habeas judge that the trial was


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“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.”

             Therefore, I dissent.




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