                          STATE OF WEST VIRGINIA

                        SUPREME COURT OF APPEALS



State of West Virginia,
                                                                         FILED
Plaintiff Below, Respondent
                                                                    November 15, 2016
                                                                          released at 3:00 p.m.
vs) No. 14-1142 (Berkeley County 12-F-135)                              RORY L. PERRY II, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA

James N. Mauldin,
Defendant Below, Petitioner


                           MEMORANDUM DECISION

        The petitioner, James N. Mauldin, by counsel Matthew T. Yanni, appeals the
circuit court’s order of October 3, 2014, entered in conformance with the jury’s verdict,
convicting Mauldin of one count of death of a child by abuse, one count of child abuse
resulting in serious bodily injury, one count of malicious assault, two counts of gross
neglect of a child creating a substantial risk of serious bodily injury, and one
misdemeanor count of providing false information to medical personnel regarding a
child’s injury. The State of West Virginia appeared by Assistant Prosecuting Attorney
Cheryl K. Saville of Berkeley County.

       This Court has considered the parties’ briefs, their oral arguments, and the record
on appeal. Upon contemplation of the standard of review, the briefs and arguments, and
the record presented, the Court discerns no substantial question of law and no prejudicial
error. Consequently, a memorandum decision affirming the order of the circuit court is
the appropriate disposition pursuant to Rule 21 of the West Virginia Rules of Appellate
Procedure.

       The State’s evidence at trial revealed that Mauldin lived in Martinsburg, West
Virginia with his girlfriend, Jasmine Dawkins, and the couple’s infant son. Mauldin
shared custody of his other son, three-year-old Kaiwan “K.C.” Connelly, with the child’s
mother, Shevecka Connelly, a Maryland resident. K.C. spent Thanksgiving Day 2011
with his mother before being picked up by Mauldin to visit for a few weeks. During the
month of December, Ms. Connelly, who was without a vehicle, repeatedly and
unsuccessfully attempted to contact Mauldin to arrange for K.C.’s return. On New
Year’s Eve 2011, an ambulance was dispatched to Mauldin’s home in response to a call
that K.C. had fallen and “busted his lip.” When the ambulance arrived, K.C. was
discovered, wet and cold, in full cardiac arrest on the bathroom floor.

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       Paramedics restored K.C.’s pulse and took him to the hospital. There, K.C. was
observed to have visible scrapes, bruising, and swelling to the face, a lesion on both sides
of his upper lip, and bruising around the entire circumference of his wrists. A mark on
his thigh resembled the shape of a handprint. K.C.’s shorts were stuck to him and
difficult to remove; when they were finally stripped away, K.C. was found to have
suffered third-degree burns across his entire buttock area and at the top of one thigh. A
CT scan disclosed various instances of subdural bleeding throughout both hemispheres of
K.C.’s brain. Mauldin explained to a responding trooper that K.C. had fallen in the
bathroom. The trooper later arrested Mauldin at the hospital upon being informed of the
burns, though Mauldin asserted that K.C. had sustained them during the Thanksgiving
stay with his mother.

      K.C. was transported by helicopter to Children’s National Hospital in Washington,
D.C., where he died the next day. An autopsy was performed, confirming K.C.’s myriad
traumas and revealing that the child had also been suffering from pneumonia. The
medical examiner ruled that K.C.’s death was a homicide caused by multiple acute and
chronic injuries.

       The grand jury returned an indictment charging Mauldin in Count One and
Dawkins in Count Two, respectively, with death of a child through child abuse by a
parent, guardian, or custodian. See W. Va. Code § 61-8D-2a(a) (1994). The indictment
also charged Mauldin in Count Three with child abuse causing serious bodily injury, see
id. § 61-8D-3(b) [1996]; Mauldin in Count Four with malicious assault, see id. § 61-2­
9(a) [2004]; Mauldin and Dawkins in Count Five and in Count Six with gross child
neglect creating substantial risk of serious bodily injury, see id. § 61-8D-4(e) [1996]; and
Mauldin and Dawkins in Count Seven with misdemeanor presentation of false
information regarding a child’s injuries, see id. § 61-8D-7 (1988). Dawkins stood trial in
November 2013, after which she was convicted by a jury on Counts Five, Six, and Seven,
but acquitted on Count Two.

        Mauldin’s jury trial commenced on March 25, 2014. The prosecution introduced a
series of text messages sent in 2011 from late November to mid-December between
telephones whose numbers were registered to Mauldin and Dawkins. The messages from
Mauldin’s phone were to the effect that the sender, inter alia, intended “to beat [K.C.]
until he [listens],” agreed that K.C. “like[s] getting spankings,” related that “I can’t wait
till I get home . . . [t]o beat em” after K.C. had urinated on himself, and, upon being
informed of K.C.’s insubordination, threatened to “cave his little chest in.” Mauldin
testified in his own defense, blaming Dawkins for the abuse resulting in K.C.’s death.
Mauldin’s account of events contrasted markedly with that of Dawkins at her own trial,
where she testified that Mauldin inflicted the beatings, and that her fear of Mauldin
prevented her from reporting the abuse to the authorities.


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       At the close of the four-day trial, Mauldin was found guilty on each count charged
in the indictment. The circuit court entered judgment in accordance with the jury’s
verdict on April 29, 2014, and, following a hearing on September 11, 2014, it entered an
order on October 3, 2014, denying Mauldin’s post-trial motions and sentencing him to
forty years in prison on Count One, with concurrent lesser terms of imprisonment on the
remaining convictions. Mauldin appeals, and, with leave of the Court, has filed a pro se
supplemental brief.

       The primary assignment of error is whether the circuit court erred in admitting the
inculpatory text messages. Although Mauldin does not dispute that the subject phones
belonged to him and Dawkins, respectively, he contends that the prosecution failed to
establish a sufficient evidentiary foundation that the phones’ owners actually sent the
messages in question. In that regard, “[a] trial court’s evidentiary rulings, as well as its
application of the Rules of Evidence, are subject to review under an abuse of discretion
standard.” Syl. pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998).

       The rules provide generally that “[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the government must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” W. Va. R. Evid.
901(a). In the case of a telephone conversation, the requirement is satisfied by “evidence
that a call was made to the number assigned at the time to . . . a particular person, if
circumstances, including self-identification, show that the person answering was the one
called.” Id. 901(b)(6). In Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), which
both sides acknowledge is persuasive on the point, the court observed that, absent direct
testimony from someone with first-hand knowledge, the sender’s or receiver’s identity
may be substantiated by “contextual clues in the . . . text messages themselves.” Id. at
1005. The court in Koch reversed the defendant’s conviction, concluding that the
incriminating text messages in that case had been admitted in error. In so ruling, the
court noted the lack of direct or circumstantial evidence of the author’s identity,
emphasizing that it was undisputed that some of the other messages emanating from the
defendant’s phone had been sent by someone else.

       Here, there were no accounts of third-party use of the cell phones, and, in fact, the
evidence was that Mauldin and Dawkins were the only two persons living in the
household who were more than three years old. The context of the messages reveals
discussions concerning K.C.’s behavior and his discipline, which are logical subjects for
his father to discuss with a cohabiting adult but would constitute unusual topics of
conversation among strangers to the household. Under the circumstances, the circuit




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court did not abuse its discretion in ruling that the sources of the text messages had been
identified with reasonable certainty and were thus admissible pursuant to Rule 901.1

       The properly admitted text messages, including some indicating that Mauldin and
Dawkins had purposefully avoided returning K.C. to Connelly for her inspection, were
relevant to show intent, bolstering the prosecution’s contention that K.C.’s fatal injuries
were anything but accidental. Taken together with the substantial physical evidence and
in particular the brutality of the injuries inflicted, the expert testimony regarding intent
and severity, and Mauldin’s ready access to K.C., the evidence indicating his guilt of
each count charged in the indictment was more than sufficient to justify the jury’s
verdict. See syl. pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (“[T]he
relevant inquiry is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proved beyond a reasonable doubt.”). We therefore reject Mauldin’s contentions,
grounded in the supposed insufficiency of the evidence, that the circuit court erred by
denying his motions for a judgment of acquittal and for a new trial.2

       1
         We likewise uphold the circuit court’s denial of Mauldin’s motion to suppress
his noncustodial initial statement that K.C. had been injured by an accidental fall, and his
subsequent written statement at the hospital—following proper Miranda warnings—in
which, inter alia, he blamed Connelly for the burns.
       2
          In his pro se supplemental brief, Mauldin continues the argument that he was
convicted on insufficient evidence, and he raises several distinct assignments of error:
(1) that his appointed appellate counsel was ineffective; (2) that he was denied
compulsory process as the result of Dawkins’s severance and subsequent absence from
his trial; and (3) that he received an impermissibly disparate sentence compared to that
imposed on Dawkins. None of the additional assignments merit prolonged analysis. To
begin with, “an appellant’s claim of ineffective assistance of counsel is generally not ripe
for direct appellate review.” State v. Miller, 194 W. Va. 3, 12, 459 S.E.2d 114, 125
(1995). Secondly, although the parties anticipated that, if called to testify, Dawkins
would invoke her Fifth Amendment privilege against self-incrimination insofar as the
appeal of her own convictions was yet pending, Mauldin did not issue a subpoena for her
appearance; he was therefore not denied process as a matter of fact. Finally, Dawkins’s
sentence is not a proper comparator, inasmuch as Mauldin was convicted of the far more
serious crime of inflicting death upon a child through abuse. To the extent that Mauldin
asserts that Dawkins was similarly culpable or more so than he, it is simply a repackaging
of his rejected argument that Dawkins was the person responsible for affirmatively
causing K.C.’s death.



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      For the foregoing reasons, we affirm.

                                                   Affirmed.

ISSUED: November 15, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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