IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2014 Term 

 

No. 13-0910 

 

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. 

FILED 

June 5, 2014 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
i 

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). 
ii 

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). 
1 

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). 
2 

 

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. 
3 

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 . . .) 
4 

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 . . .) 
5 

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 postconviction 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. 
6 

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). 
7 

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: 
8 

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. 
9 

(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 . . .) 
10 

“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. 
11 

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 . . .) 
12 

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. 
13 

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 
14 

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. 
15 

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. 
16 

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 
17 

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 
18 

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 
19 

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 
20 

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-bearticulated 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 § 61-8D5(a)). 
21 

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. 
22 

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.