Concurring in Part and Dissenting in part.
I join Justice’ Noble’s separate opinion because I agree with her view as to the meaning of “actual custody” in the context under review here. But, I write separately to highlight an additional flaw of the majority opinion. Because “actual custody” of the abused child is an essential element of first-degree criminal abuse under KRS 508.100, the jury was expressly instructed that it had to believe Staples had “actual custody” of his girlfriend’s child when the injury occurred. As the majority clearly acknowledges, the meaning of “actual custody” is not obvious and, in fact, the majority devotes several pages of its opinion explaining its conception of “actual custody.”
However, this new articulation of “actual custody” is of no import unless the jury charged with determining Staples’ guilt was made aware of it. The jury, however, was never instructed to apply this new definition of “actual custody” and, we have no idea what meaning the jury may have ascribed to that phrase. Moreover, we have no reason to believe that the jury unanimously settled upon the same meaning of “actual custody” as decreed in the majority opinion, thereby casting serious doubt upon whether Appellant’s criminal abuse conviction was pursuant to a unanimous verdict. See Kingrey v. Commonwealth, 396 S.W.3d 824, 880 (Ky.2013), quoting KRS 29A.280(3) (“A unanimous verdict is required in all criminal trials by jury.”).17 Having established the definition of a term to dispel the inherent ambiguity of the statutory language, it is now incumbent upon the majority to remand the case for retrial based upon instructions consistent with this newly formulated definition. That is exactly what we did in McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky.1986) when this Court fashioned a definition for the statutory term “extreme emotional disturbance,” which *837like “actual custody,” is used, but not de-, fined, in the criminal statutes. The failure of the majority to afford Staples a trial based upon its newly articulated conception of “actual, custody” is a violation of his fundamental due process rights under the Fifth and Fourteenth Amendments of the United States Constitution. Middleton v. McNeil 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (U.S.2004) (“In a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement.”). Absent a definition of “actual custody” for the jury to apply, I am unable to understand how the Commonwealth could have proven this element of first-degree criminal abuse. To the contrary, this element may only be proven by a new trial applying the definition of “actual custody” the Majority adopts today.
NOBLE, J., joins.
. The Majority’s suggestion that Appellant is not entitled to a new trial because he did not request a definitional instruction is unpersuasive. This position is in diametric opposition to our well established rule that “erroneous jury instructions are presumed to be prejudicial. And the right to a unanimous verdict is a substantial right; the violation of which we have held requires reversal. So the denial of [Appellant’s] right to a unanimous verdict is a fundamental error.” See Kingrey, 396 S.W.3d at 831-32 (citations and internal quotes omitted). .