IN THE SUPREME COURT OF A PPEALS 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 C ourt 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 th e 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 VIRGINIAi SYLLABUS BY THE COURT
1. “In reviewing challenges to th e 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 th e 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 jurisdicti on to enter a valid judgment of conviction against an accused who was deni ed effective assistan ce of counsel and a judgment so entered is void.” Syl. Pt. 25, State v. Thomas , 157 W. Va. 64 0, 203 S.E.2d 445 (1974).

3. “In the West Virginia courts, cl aims of ineffective assistance of counsel are to be gove rned 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 st andard of reasonableness; and (2) there is a reasonable probability that, but for counsel ’s unprofessional errors, the result of the proceedings would ha ve been different.” Syl. Pt. 5, State v. Miller , 194 W. Va. 3, 459 S.E.2d 114 (1995).ii 4. “In reviewing counsel’s performan ce, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the br oad range of professionally co mpetent assistance while at the same time refraining from engaging in hinds ight or second-guessi ng of trial counsel’s strategic decisions. Thus, a re viewing 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, a ttacked 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, 20 3 S.E.2d 445 (1974).

6. “A term which is widely used and which is readily comprehensible to the average person without fu rther 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 of fense is sufficient if it adopts and follows the language of the statute, or uses substantially equivalent language and plainly informs the jury of the particul ar offense for which the defend ant 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 th e Circuit Court of Wyoming County’s July 23, 2013, order granting respon dent Robert Junior Thomas’ (hereinafter “respondent”) petition for a writ of post-conv iction habeas corpus following his conviction of one count of sexual abuse by a parent, guard ian, custodian or person in a position of trust to a child pursuant to West Virginia Code § 61-8D-5( a) (2005). The circu it court found that respondent’s trial defense counsel was ine ffective for failing to offer adequate jury instructions on whether respondent was a “per son in a position of trus t” 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-c onviction habeas corpus. We therefore reverse the order of the circuit court and order respondent re manded 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 wh ich involve sensitive facts pertaining to juveniles and do not utili ze the juvenile’s name. See , e.g ., West Virginia Dept. of Human Services v. La Rea Ann C.L ., 175 W. Va. 330, 33 2 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 ne ed 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 th e afternoon of July 24, 20 07, L. M. contends that respondent told her he was aware of her faili ng grades and could help her with her grades if she would meet him later that evening. L. M. testified that respon dent told her to watch the security cameras at her hom e for him to drive by and he would pick her up. L. M. testified that she pretended to go to bed that evening, but snuc k 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 door s, gave her a drink which ma de her nauseous and sleepy,

2 Respondent admitted writing the note, bu t contended he had written it to his wife.

3 Respondent claimed he had given his ce ll 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 c onfirmatory 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 bedr oom that evening, he r parents reported her as a runaway and, as a result, she was deta ined by the police when she showed up at school the following day. In an initial st atement given at scho ol, which she later recanted, L. M. indicated that she left he r 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 Octobe r 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 testim ony apparently, L. M. stated that after their sexual encounter, respondent showed her a gun and threat ened 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 betw een 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 Custodia n” and omits any reference to “person in a position of trust.” This omission is a curiously recurrent theme throughout the underlying proceedi ngs, as discussed infra

. (continued . . .)4 respondent’s defense was that, at the time of th e 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 th roughout. The 2005 statute would have been controlling in this matter. We st 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 th e place of a parent and charged with any of a parent’s ri ghts, 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 thi ngs. 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 hom e. She’s transferred from teacher to bus driver, bus driver to bring her home, then she’s my responsibility, period. I do n’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 Boar d of Education to testify regarding the parameters of bus drivers’ authority and co ntrol 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 defens e’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 pe nitentiary. His direct appeal was refused by this Court on September 22, 2010. 8 Respondent filed the instant petition for postconviction habeas corpus relie f on December 1, 2011. At th e habeas corpus proceedings held on September 28, 2012, respondent called two witnesses: his former defense counsel, Thomas Evans, III (hereinafter “M r. Evans”), and Mr. Evans’ investigator.

duty is basically to get you fro m Point A to Po int 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 contro l over her, nor did her parents, nor did the teachers . No one did.

8 In his direct appeal, respondent argued 1) improper prosecutor ial remarks during closing argument; 2) the statutory phrase “oth er 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 clai ms for habeas corpus relief, 9 but argued primarily that Mr. Evans was ineffective due to his failure to submit pr oper jury instructions.

On July 23, 2013, the circuit court granted resp ondent’s petition for habeas corpus relief and ordered a new trial. The circuit court found that Mr. Evans was ineffective for failure to pr offer “an instruction that w ould guide the jury” on whether respondent met all of the “special circumstan ces” contained in West Virginia Code § 61- 8D-5(a). The circuit court further found th at such failure prejudiced respondent inasmuch as the trial was “fun damentally flawed by the absenc e 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 comm itted at all.” The State th ereafter 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 pres entence report; 3) failure to provide defendant copy of indictment; 4) defects in the indictmen t; 5) refusal to subpo ena witnesses; 6) nondisclosure of grand jury minutes and witne ss notes; 7) sufficiency of the evidence; 8) absence of defendant; 9) more severe sent ence 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 pl aced 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 procee d 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 ente red is void.” Syl. Pt. 25, State v. Thomas , 157 W. Va. 640, 203 S.E.2d 445 (1 974). Whether a defendant is en titled to habeas relief for ineffective assistance of counsel is guided by the following test: In the West Virginia courts, cl aims of ineffective assistance of counsel are to be govern ed by the two-pronged test established in Strickland v. Washington , 466 U. S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (19 84): (1) Counsel’s performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable pr obability that, but for counsel’s unprofessional errors, the resu lt 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 Performanc e/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 assi stance while at the same time refraining fro m 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 pe rformance, attacked as ineffective, arises from occurrences involving strategy, ta ctics 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 custodi an 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 consente d 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 a nd, 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 mo re than twenty years.9 (emphasis added). As previously noted, both the State and the defense offered two jury instructions. State’s Instruction No. 1 trac ks the pre-2005 statutory language and the language of the indictment 11 as well as providing defin itions 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 pare nt, guardian or custodian of a child under his or her care, cu stody 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 wi llingly participated in such conduct, or the fact that the ch ild may have consented to such conduct or the fact that th e child may have suffered no apparent physical injury or me ntal or emotional injury as a result of such conduct.
*** The burden is on the State to prove the guilt of the Defendant beyond a reasonabl e doubt and the Defendant, Robert Junior Thomas is not required to prove himself innocent. He is presumed by th e law to be innocent of this charge and this presumption re mains 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 Stat e of West Virginia must overcome the presumption that th e 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 Instructi on 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 th e statute which states that one can violate the statute notwithstanding the fact that the child may have willingly par ticipated, consented, or suffered no injury. It is only in this ju ry instruction that th e phrase “person in a

The Defendant, Robert Junior Thomas on, before and about the 24 th day of July, 2007 in Wyoming County, State of West Virginia committed the offense of “Sexual Abuse By Parent, Guardian or Cu stodian” 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. Th at 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 th at of the State and that of the Defendant the jury and e ach member of the jury is convicted beyond a reasonable doubt of the truth of the charge as to each of these el ements of Sexual Abuse By A Parent, Guardian, Custodian of a child, you may find Robert Junior Thomas guilty of Se xual 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 Juni or Thomas not guilty.11 position of trust” appears. The defense o ffered two instructions: a “clean slate” instruction which was covered in the court’s ch arge and an instructi on on the elements of the statute, 12 which largely mirrored, but was not as comprehensive as, the State’s instruction. Both of the defense instru ctions 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 re quired 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 defici encies in the jury instructions identified in the ci rcuit court’s order: 1) the la ck 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 ha beas relief on #3,

12 This withdrawn instruction likewise fa ils 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.” Th is is obviously incorrec t 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 Vi rginia Code § 61-8D-5(a) ostensibly arises from State v. Longerbeam , 226 W. Va. 535, 540, 70 3 S.E.2d 307, 312 (2010), wherein the Court found that there was insu fficient evidence to convict the appellant because “the record makes clear that [the vi ctim] 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 c ourt properly found that the lack of jury instruction on the defin ition 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 th e phrase “person in a position of trust” was omitted entirely from the indictment and State’ s Instruction No. 1—a ll 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 th roughout the trial and both the circuit court order and parties’ briefs refer to it on co untless occasions. In fact, only respondent

custody at the time of th e incident[.]” First, Longerbeam is a per curiam opinion and contains no controlling point of law refl ective of this “tempor al” 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 determ ine that the statutory language is not so restrictive as to require a defenda nt to be acting in his or her statutorily-defined role at the time of the incident is questionable. In fact , other cases in which th is 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, 65 4 S.E.2d 115, 12 0 n.11 (2007) (finding that “ as a custodian , the Appellant possessed sufficien t control over [the victim] . . . for a jury to properly convict[.]” (emphasis added)); State v. Edmonds , 226 W. Va. 464, 469, 702 S.E.2d 4 08, 413 (2010) (finding that “contr ol” is defined as “‘exercise[ing] power or influence over[]’” and th at 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 th at the circuit court apparen tly “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 ha beas 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 fou nd respondent guilty un der the much narrower category of “custodian” upon whic h it was properly instructed. “Custodian” is defined as a person over the age of four teen 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 proceedi ng. “Custodian” shall also include, but not be limited to, the spouse of a parent, guardian or custodian, or a person cohab iting 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 wi th the parent, guardian or custodian. W. Va. Code § 61-8D-1(4). To whatever extent Mr. Evan s noted that “person in a position of trust” and its defi nition were missing from the State’s instructions, objecting to such would not have been in respondent’s best intere sts 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 w ith [] responsi bility for the14 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 “car e, custody, or control” constituted further deficiency on the part of Mr. Evans. Unlik e “person in a position of trust,” the circuit court correctly noted that there is no statutor y definition of “care, custody, or control,” nor did the defense proffer a proposed instructi on attempting to define it. However, this Court has made clear that “[a] term whic h is widely used a nd which is readily comprehensible to the average person without further defi nition 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 petitione r direct us to any authority requiring that the term in qu estion 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 understa nding 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 word s used in instructions which are self-explanatory and readily understood need not be speci fically 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 “t emporary” and “custody” as c ontained in W. Va. Code § 61- 8D-1(4) were undefined); Edmonds , 226 W. Va. at 469, 70 2 S.E.2d at 413 (2010) (observing that “‘care, cust ody and control’ are not statutorily defined.”). In Collins , we affirmed a defendant’s conviction as a “cust odian” under this statute where he sexually assaulted a child he had taken on a four-wh eeler 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 possessi on 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 su fficient “control” over the child by refusing to take the child ho me 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 ma ke a finding on this element. As in Bartlett , we find that there is nothing “so arca ne” about the term “care, custody or control,” that the jury was left without guidance as to this el ement 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’ me ans ‘[t]o exercise power or influence over.’” 226 W. Va. at 469, 702 S.E.2d at 413. Certainly, had defense counsel proffered an instruc tion commensurate with this commonly-accepted definition, such an instruction, rather than aiding resp ondent’s cause, may ha ve served only to highlight respondent’s alleged actions of locking the door, pr oviding L. M. with a drink which made her nauseous and sleepy, and th reatening her and her sister with a gun. Therefore, we find that the failu re to offer a proposed definiti onal 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 circu it 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 fo und that the jury was inadequately instructed on the perceived requi rement that L. M. must have been in17 respondent’s “care, cu stody 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 ad opts 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 suffic ient where it was identical to statutory language).

West Virginia Code § 61- 8D-5 provides that the o ffense 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 “unlawfu lly and feloniously subject[ed] [L. M.] to sexual exploitation or sexual inte rcourse, 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 und er 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. Re gardless, however, since the jury was in fact18 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) (“Th erefore, we find that the defense counsel’s failure to request an alib i instruction did not constitute ineffective assistance of counsel since the defense of a libi 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.”). Acco rdingly, we find that the failure to offer further instruction(s) on th e temporal element purpo rtedly contained in West Virginia Code § 61-8D -5(a) did not constitute defi cient 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 ineffectiven ess create a “reasonable probability of a different outcome,” the United Stat es Supreme Court has observed: Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particul ar case as they are to be prejudicial. They cannot be cl assified according to likelihood of causing prejudice. Nor can th ey be defined with sufficient precision to inform defense a ttorneys correctly just what conduct to avoid. Representation is an art, and act or omission that is unprofessional in one case may be sound or even19 brilliant in another. Even if a defendant shows particular errors of counsel were unreason able, 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 abse nce of additional ju ry instruction(s) on respondent’s lone legal defense crea ted a “fundamentally flawed” trial which prejudiced respondent. However, neither th e circuit court nor respondent provides support for the notion that but for the absence of additional instructions there was a reasonable probability that the ve rdict would have been different . For this conclusion to be reached, one would logically have to kno w what the purported in struction(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 be en drafted and offered, the trial court would have had the duty to rule upon it, and if conviction resulted the Suprem e 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 purpo rted instruction would still be subject to review by this Court belies its conclusion that there was a “reasonable probability” that if20 such an instruction had been offered or give n, 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 reasonabl e probability of respondent’s acquittal. As stated previously herein, re spondent’s only challenge to the substantive evidence at trial was that since he was not on du ty as L. M.’s bus driver at the time of the sexual encounter, she was not under his “car e, 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 a nd that she was under his care, custody, and control at the time of the encounter. Respondent fully factually developed and argued the only viable defens e 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 Cour t’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 main tenance worker/occasional volunteer at a Christian school picked child up in his va n 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 differ ently 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 de fendant 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 th e 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 concl ude that while the ‘care and caution’ instruction may have been applicab le 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 de fense. . . . 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 c onstitute ineffective assistance of counsel). We therefore conclude that the circuit cour t erred in granting re spondent’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 Co unty, West Virginia. We fu rther order that respondent be remanded into the custody prescribed in th e sentencing order orig inally entered in the criminal proceeding of this ma tter to serve out the remainder of his sentence. The Clerk of this Court shall issue our mandate forthwith.

Reversed.