                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                    June 22, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0718 (Mercer County 13-F-353)                                       OF WEST VIRGINIA


John Daniel Spaulding,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner John Daniel Spaulding, by counsel Harold B. Wolfe III, appeals the order of
the Circuit Court of Mercer County, entered on June 23, 2014, denying his motion for a new trial
and adjudging him guilty of three counts of first-degree sexual assault and fifty counts of
possession of material depicting minors engaged in sexually explicit conduct. Petitioner was
sentenced to three consecutive terms of imprisonment for each of the first-degree sexual assault
convictions, and fifty two-year terms for the convictions of possession. The possession
convictions were ordered to be served concurrently with each other and concurrently with the
sexual assault convictions. Respondent State of West Virginia appears by counsel Laura Young.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

                                                I.

        The Bluefield Police Department initiated a criminal investigation in 2012, after a local
pawn shop received a computer from Kimberly C. containing a substantial amount of material
depicting minors engaged in sexually explicit conduct. The West Virginia State Police assisted in
the investigation, which ultimately expanded to include petitioner, to whom Ms. C. apparently
transferred a great deal of the material. A search warrant executed pursuant to the investigation
resulted in the seizure of numerous files depicting child pornography from petitioner’s computer.
Several of these images depicted each of the victims, C.A.1 (age 3 during the relevant period)

       1
          We use initials to identify the minor victims in this case, pursuant to our practice of
protecting the identity of juveniles in sensitive cases. See, e.g., State ex rel. WV Dept. of Human
Services v. Cheryl M., 177 W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1 (1987); see also W.Va.
R.App. P. 40(e)(1).
(continued . . .)
                                                1

and B.W. (age 14 during the relevant period), and the computer also contained material
downloaded from the Internet. Petitioner submitted to a police interview after being given a
Miranda2 warning. He acknowledged in the course of that interview that he was aware that
“kiddie porn” was on his computer. He stated, however, that he did not put it there. He also
admitted to police, according to the testimony of West Virginia State Police Sgt. Kevin
Summers, that he had given his cellular telephone to an unnamed individual so that the police
would not look at it.3 Petitioner requested a lawyer and the interview was terminated. The
following month, he again appeared for an interview (with a lawyer), and again admitted that
there was child pornography on his computer, including pictures of B.W. He also acknowledged
text messages between himself and Ms. C. Petitioner and Ms. C. were indicted on numerous
charges in 2013. Petitioner was subsequently charged in a separate, superseding indictment with
six counts of first-degree sexual assault (involving C.A.) and fifty counts of possession of
material depicting minors (specifically C.A. and B.W.) engaged in sexually explicit conduct.

         Numerous motions were taken up prior to trial. Petitioner filed a motion to suppress his
statement, to suppress evidence seized in the execution of the search warrant, and to preclude the
introduction of the text messages exchanged between him and Ms. C. The State provided notice
of intent to use Rule 404(b) evidence, indicating it would present evidence of “thousands” of
child pornography files found on petitioner’s computer, all generated after the death of
petitioner’s deceased brother, who formerly owned the laptop, for the purpose of proving lustful
disposition and absence of mistake. A McGinnis4 hearing was conducted, at which Sgt. Summers
testified that he discovered a “significant” number of images of commercial child pornography,
as well as images of B.W. and C.A. The court ruled that it would allow this evidence, but
instructed that the officer could not testify about the existence of a specific number—
“thousands”—of other images, instead allowing the prosecution to select fourteen representative
images. Ultimately, when the evidence was presented at trial, a limiting instruction was given.

        The case proceeded to trial. In his opening statement, the assistant prosecutor informed
the jury that they would be hearing evidence in a case—which he deemed “bizarre”—involving
the sexual assault of a three-year-old girl. He further explained that Ms. C. invented odd ploys to
interest petitioner, beginning with the creation of an online persona and including taking
sexually-suggestive photographs of her own fourteen-year-old daughter, B.W., and exchanging
numerous text messages that ultimately showed petitioner’s sexual interest in children. The
assistant prosecutor told the jury that, ultimately, Ms. C. did not submit her own daughter to
contact with petitioner but, instead, concocted a birthday party to be attended by the three-year­
old C.A., wherein petitioner would engage in sexual contact with her. The assistant prosecutor



       2
           See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

       3
           The telephone was never recovered by the police.

       4
           See State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).





                                                 2

cautioned the jury that petitioner would assert that Ms. C. fabricated this story. In the defense’s
opening statement, petitioner’s counsel asserted that petitioner was “set up” and that Ms. C.
placed the images on his computer. The circuit court then modified its earlier ruling and allowed
the State’s witnesses to discuss the specific number of images found on petitioner’s computer.

         West Virginia State Police Sgt. David Eldridge testified and authenticated the
photographs described in the charging instrument. Twenty-six of those pictures were taken of
C.A., many capturing sexual acts involving that child. Sgt. Eldridge testified that he believed Ms.
C. took most of the pictures (using a cellular telephone) but it was possible another individual
was involved. After having entered her own pleas of guilty and having her parental rights to
B.W. terminated, Ms. C. testified in detail about her disturbing history with petitioner. She
admitted to creating an online persona as a link to petitioner, and eventually entering a physical
relationship with petitioner, subsequent to which petitioner informed Ms. C. that he was sexually
interested in B.W. Ms. C. took pictures of B.W. for petitioner. Ms. C. further testified that
petitioner sent commercial pornographic images to her and informed her that he wanted similar
pictures of B.W. Ms. C. admitted to taking pictures of C.A., and arranging sexual contact for
petitioner with C.A. at a local hotel, after telling C.A.’s mother that she wanted to take her to a
sleepover. Ms. C. described sending petitioner a text message suggesting that C.A. be “knocked
out,” and that he ejaculate inside the child. Ms. C. obtained trazodone5 for the child, and
suggested that petitioner obtain K-Y® lubricant6 before the meeting. Ms. C. further testified
about the various sexual acts giving rise to the sexual assault charges. On cross-examination she
testified that she initially denied having anything to do with the images, and she further denied
ever having possession of petitioner’s cellular telephone, but stated that she saw petitioner
destroy it.7

        At the conclusion of the jury trial, petitioner was convicted as described above. Petitioner
filed a motion for a new trial, and several supplements to that motion, on numerous grounds.
The court denied the motion for a new trial. Petitioner was sentenced to serve consecutive terms
of twenty-five to one-hundred years for each of the sexual assault charges, and terms of two
years on the each of the possession charges, to be served concurrently with all other terms. This
appeal followed.

                                                    II.

        In this case we are called upon to review the circuit court’s order which denied
petitioner’s motion for a new trial. This Court has previously held that



       5
         Trazodone is an antidepressant medication, sometimes sold under the brand names
Oleptro or Desyrel. Drowsiness is a common side effect of the drug.
       6
         K-Y Jelly is a water-based, water-soluble product, commonly used as a lubricant for
sexual intercourse.
       7
           Petitioner did not testify in his defense.


                                                    3

       “[a]lthough the ruling of a trial court in granting or denying a motion for a new
       trial is entitled to great respect and weight, the trial court’s ruling will be reversed
       on appeal when it is clear that the trial court has acted under some
       misapprehension of the law or the evidence.”

State v. Vance, 207 W.Va. 640, 643, 535 S.E.2d 484, 487 (2000) (quoting Syl. pt. 4, Sanders v.
Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976)). We elaborated upon the
standard of review in Syllabus Point 3 of Vance:

       In reviewing challenges to findings and rulings made by a circuit court, we apply
       a two-pronged deferential standard of review. We review the rulings of the circuit
       court concerning a new trial and its conclusion as to the existence of reversible
       error under an abuse of discretion standard, and we review the circuit court’s
       underlying factual findings under a clearly erroneous standard. Questions of law
       are subject to a de novo review.

207 W.Va. 640, 535 S.E.2d 484.

        Guided by these standards, we will address petitioner’s eleven assignments of error. In
summary, those assignments of error are that the circuit court erred in: 1) admitting into evidence
fourteen photographic images unrelated to the charges set forth in the indictment; 2) failing to
order the preservation of the original images of fourteen “sanitized” photographs; 3) permitting
evidence about unauthenticated text messages; 4) allowing testimony and images of “uncharged
alleged child pornography;” 5) refusing to allow “presentment to the jury of the second portion
of petitioner’s recorded statement;” 6) denying petitioner’s motion for a new trial based on juror
misconduct; 7) precluding the cross-examination of an investigating officer about a “notarized
statement” of B.W.; 8) precluding petitioner from introducing evidence that C.A. identified an
individual other than petitioner as her attacker; 9) denying petitioner’s motion for a new trial
based on the State’s failure to offer evidence corroborating Ms. C.’s testimony that C.A. was
“ever” in the custody of Ms. C.; 10) allowing the assistant prosecuting attorney to comment on
petitioner’s theory of defense during opening statement; and 11) ruling that petitioner was not
prejudiced by the late disclosure of certain evidence.8

                                                 III.

        At the outset, we note that several of the issues encompassed in petitioner’s assignments
of error were not brought to the attention of the trial court in a timely fashion.9

       8
       Many of petitioner’s assignments of error contain as many as three subparts. We have
summarized and paraphrased in the interest of clarity.
       9
          Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that
petitioner’s brief contain an argument exhibiting clearly the points of fact and law presented.
That Rule also requires that such argument “contain appropriate and specific citations to the
record on appeal, including citations that pinpoint when and how the issues in the assignments of
(continued . . .)
                                                  4

               This Court has consistently held that “silence may operate as a waiver of
       objections to error and irregularities at the trial which, if seasonably made and
       presented, might have been regarded as prejudicial.” State v. Grimmer, 162 W.Va.
       588, 595, 251 S.E.2d 780, 785 (1979), overruled on other grounds by State v.
       Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). The raise or waive rule is designed
       “to prevent a party from obtaining an unfair advantage by failing to give the trial
       court an opportunity to rule on the objection and thereby correct potential error.”
       Wimer v. Hinkle, 180 W.Va. 660, 663, 379 S.E.2d 383, 386 (1989). In State v.
       LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996), this Court explained as
       follows:

              Our cases consistently have demonstrated that, in general, the law
              ministers to the vigilant, not to those who sleep on their rights. . . .
              When a litigant deems himself or herself aggrieved by what he or
              she considers to be an important occurrence in the course of a trial
              or an erroneous ruling by a trial court, he or she ordinarily must
              object then and there or forfeit any right to complain at a later time.
              The pedigree for this rule is of ancient vintage, and it is premised
              on the notion that calling an error to the trial court's attention
              affords an opportunity to correct the problem before irreparable
              harm occurs. There is also an equally salutary justification for the
              raise or waive rule: It prevents a party from making a tactical
              decision to refrain from objecting and, subsequently, should the
              case turn sour, assigning error (or even worse, planting an error
              and nurturing the seed as a guarantee against a bad result). In the
              end, the contemporaneous objection requirement serves an
              important purpose in promoting the balanced and orderly
              functioning of our adversarial system of justice.

       The LaRock Court further explained that: “One of the most familiar procedural
       rubrics in the administration of justice is the rule that the failure of a litigant to
       assert a right in the trial court likely will result in the imposition of a procedural
       bar to an appeal of that issue.” Id. (internal quotations and citations omitted). See
       also Powderidge Unit Owners Ass’n v. Highland Props., Ltd., 196 W.Va. 692,
       703, 474 S.E.2d 872, 883 (1996) (“The law ministers to the vigilant, not those
       who slumber on their rights.” (internal quotations and citations omitted)); State ex
       rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996) (“The
       rule in West Virginia is that parties must speak clearly in the circuit court, on pain
       that, if they forget their lines, they will likely be bound forever to hold their
       peace.” (citation omitted)); Hanlon v. Logan County Bd. of Educ., 201 W.Va. 305,
       316, 496 S.E.2d 447, 458 (1997) (“A party simply cannot acquiesce to, or be the


error were presented to the lower tribunal.” In several instances we found petitioner’s brief
lacking in this regard.


                                                 5
       source of, an error during proceedings before a tribunal and then complain of that
       error at a later date.” (citations omitted)); State v. Asbury, 187 W.Va. 87, 91, 415
       S.E.2d 891, 895 (1992) (“Generally the failure to object constitutes a waiver of
       the right to raise the matter on appeal.”).

State v. Proctor, 227 W.Va. 352, 359-60, 709 S.E.2d 549, 556-57 (2011).

        As noted by respondent, at trial petitioner did not object to the circuit court’s admission
of the photographs used as trial exhibits10 or the court’s method for ensuring the correct
photographs were introduced (first and second assignments of error); to comments made by the
assistant prosecutor during his opening statement (tenth assignment of error); or to the timing of
the disclosure of evidence of forensic data and text messages11 (eleventh assignment of error).
For the reasons explained above, we find that each of these issues was waived and we consider
them no further.

                                                 IV.

        We begin our more substantive analysis with petitioner’s third assignment of error, in
which he argues that the circuit court failed to require authentication of text messages (many of
which included pornographic images of children) purportedly sent from petitioner’s cellular
telephone to Ms. C.’s cellular telephone. Rule 901(a) of the West Virginia Rules of Evidence
provides that, to authenticate an item of evidence, “the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.” We have held:

             Preliminary questions of authentication and identification pursuant to
       W.Va. R. Evid. 901 are treated as matters of conditional relevance, and, thus, are




       10
          Petitioner objected to the reference to the quantity of images discovered on petitioner’s
computer, but not to the admission of the photographs themselves. As more fully explained in
the body of this decision, to the extent that petitioner argues that testimony regarding the quantity
of images was irrelevant or prejudicial, it is clear that the number of pornographic images was
indeed relevant and more probative than prejudicial to show absence of mistake, inasmuch as
petitioner’s counsel indicated in opening argument that petitioner “was just set up to look
guilty.”
       11
           Though he refers to text messages in his assignment of error, petitioner’s argument
supporting that assignment of error refers only to the forensic analysis of Ms. C.’s computer.
Petitioner acknowledges that he received the evidence “approximately sixty . . . hours before
trial.” Though it is undisputed that petitioner was aware of the existence of this evidence prior to
the start of trial, there is no indication that petitioner addressed the timing of the disclosure with
the circuit court until the filing of his motion for a new trial, after the jury had rendered its
verdict.



                                                  6

       governed by the procedure set forth in W.Va. R. Evid. 104(b).[12] In an analysis
       under W.Va. R. Evid. 901 a trial judge must find that the party offering the
       evidence has made a prima facie showing that there is sufficient evidence ‘to
       support a finding that the matter in question is what its proponent claims.’ In other
       words, the trial judge is required only to find that a reasonable juror could find in
       favor of authenticity or identification before the evidence is admitted. The trier of
       fact determines whether the evidence is credible. Furthermore, a trial judge’s
       ruling on authenticity will not be disturbed on appeal unless there has been an
       abuse of discretion.

Syl. Pt. 1, in part, State v. Jenkins, 195 W. Va. 620, 621, 466 S.E.2d 471, 472 (1995). Petitioner
acknowledged in his statement given to the police that he and Ms. C. frequently exchanged text
messages. Moreover, police who reviewed Ms. C.’s cell phone found a number believed to be
that of petitioner, and confirmed petitioner’s ownership through bills found at his residence,
according to the testimony of Sgt. Eldridge. Petitioner then confirmed his ownership of that
phone when giving his statement to police. Thousands of text messages were exchanged between
Ms. C.’s telephone and the telephone that police determined belonged to petitioner, and Ms. C.
confirmed the source of the relevant text messages in her testimony. The text messages presented
to the jury in this case were sufficiently authenticated.

        We next turn to petitioner’s fourth assignment of error, in which he argues that the circuit
court erred in allowing the West Virginia State Police forensic analyst to testify about
petitioner’s “other bad acts”—that is, the thousands of pornographic images of children found on
petitioner’s computer—after having conducted a McGinnis hearing and determining that
evidence of only fourteen of the images not related to the charges would be admissible.

       The standard of review for a trial court’s admission of evidence pursuant to Rule
       404(b) involves a three-step analysis. First, we review for clear error the trial
       court’s factual determination that there is sufficient evidence to show the other
       acts occurred. Second, we review de novo whether the trial court correctly found
       the evidence was admissible for a legitimate purpose. Third, we review for an
       abuse of discretion the trial court’s conclusion that the “other acts” evidence is
       more probative than prejudicial under Rule 403. See State v. Dillon, 191 W.Va.
       648, 661, 447 S.E.2d 583, 596 (1994); TXO Production Corp. v. Alliance
       Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992), aff’d, 509 U.S. 443,
       113 S.Ct. 2711, 125 L.Ed.2d 366 (1993); State v. Dolin, 176 W.Va. 688, 347
       S.E.2d 208 (1986).

LaRock, 196 W. Va. at 310-11, 470 S.E.2d at 629-30. There is no question that a McGinnis
hearing was conducted, but petitioner disputes that the circuit court engaged in an appropriate
balancing test or made appropriate findings regarding testimony about the numerous images

       12
           Rule 104(b) provides: “When the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a finding that the fact does exist. The court
may admit the proposed evidence on the condition that the proof be introduced later.”


                                                 7

found on petitioner’s computer.13 We disagree. The circuit court’s consideration of the matter
was apparent when it explained its reconsideration of its earlier ruling:

       This is the reason that the [c]ourt feels like it should be allowed in all fairness and
       candor is that, as I understand from the defense’s opening statement, is part of the
       defense in this case is that Ms. [C.] placed on these images on [petitioner’s]
       computer. I think the State is using this to show that it’s highly unlikely since
       there’s more images on [petitioner’s] computer than was on Ms. [C.]’s own
       computer. So I think that’s fair game and I think it’s relevant and material to this
       issues in this case.

We agree with the circuit court that the evidence was admissible for a legitimate purpose and
was more probative than prejudicial. We therefore find no error in this regard.

        Petitioner argues in his fifth assignment of error that the circuit court erred in declining to
require the “second portion” of his statement to the police to be played for the jury, in
accordance with Rule 106 of the West Virginia Rules of Evidence, after the State introduced
petitioner’s initial statement through the testimony of Sgt. Summers.14 We agree with the circuit



       13
            We have explained:

                Where an offer of evidence is made under Rule 404(b) of the West
       Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West
       Virginia Rules of Evidence, is to determine its admissibility. Before admitting the
       evidence, the trial court should conduct an in camera hearing as stated in State v.
       Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and
       arguments of counsel, the trial court must be satisfied by a preponderance of the
       evidence that the acts or conduct occurred and that the defendant committed the
       acts. If the trial court does not find by a preponderance of the evidence that the
       acts or conduct was committed or that the defendant was the actor, the evidence
       should be excluded under Rule 404(b). If a sufficient showing has been made, the
       trial court must then determine the relevancy of the evidence under Rules 401 and
       402 of the West Virginia Rules of Evidence and conduct the balancing required
       under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then
       satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on
       the limited purpose for which such evidence has been admitted. A limiting
       instruction should be given at the time the evidence is offered, and we recommend
       that it be repeated in the trial court’s general charge to the jury at the conclusion
       of the evidence.

Syl. Pt. 2, State v. McGinnis, 193 W. Va. 147, 151, 455 S.E.2d 516, 520 (1994).
       14
           While Rule 106 was amended in 2014, the version applicable at the time of petitioner’s
trial provided that “when a writing or recorded statement or part thereof is introduced by a party,
(continued . . .)
                                                  8

court, however, that this “second portion” was actually a separate statement taken on a later date,
and the State properly objected on the basis of hearsay. “It is well settled that decisions regarding
the admission and exclusion of evidence are peculiarly within the province of the trial court and
are not to be reversed on appeal absent an abuse of discretion. Thus, evidentiary decisions of a
trial court are entitled to substantial deference.” McDougal v. McCammon, 193 W.Va. 229, 235,
455 S.E.2d 788, 794 (1995). The court did not abuse its discretion in excluding the statement and
we find no error on this ground.

        We turn now to petitioner’s sixth assignment of error, concerning his allegations of jury
impropriety. This argument is based on petitioner’s having discovered, subsequent to trial, that
Sgt. Eldridge’s mother-in-law was a deputy clerk for the circuit court, and that a juror was her
co-worker and an employee of the civil division of the circuit clerk’s office.15 West Virginia trial
judges are accorded ample discretion in determining how best to conduct voir dire. State v. Derr,
192 W.Va. 165, 172-75, 451 S.E.2d 731, 738-41 (1994). As a general rule, we will find an abuse
of discretion only when there is insufficient questioning to allow defense counsel to exercise a
reasonably knowledgeable challenge to unqualified jurors. See Syl. Pt. 2, State v. Mayle, 178
W.Va. 26, 357 S.E.2d 219 (1987). Inasmuch as there is no evidence that Sgt. Eldridge’s mother­
in-law had any part in the jury deliberations or the substantive decisions regarding jury selection,
we find petitioner’s argument with regard to her to be wholly without merit. Petitioner fails to
allege that the circuit court in any way directed voir dire such that pertinent information
regarding the juror’s background would not have been discovered in the course of diligent
examination, and fails to offer evidence that he requested and was denied further voir dire. In
State v. Beckett, 172 W.Va. 817, 823, 310 S.E.2d 883, 889 (1983), we suggested that where a
defendant does not seek additional voir dire to demonstrate possible bias, prejudice, or
disqualification, there can be no error for the failure to strike prospective jurors for cause. See
also State v. Ward, 188 W.Va. 380, 393, 424 S.E.2d 725, 738 (1991). Furthermore, petitioner
offers no evidence that the juror in question was in any way dishonest about her employment or
otherwise obstructed petitioner’s ability to discover facts relevant to her qualifications to serve
on the jury. We find no error on this ground.

        In petitioner’s seventh assignment of error, he argues that the circuit court erred in
disallowing his cross-examination of Sgt. Summers concerning a notarized, written statement by
B.W. implicating “Robbie Dillon.” The record reveals that the statement to which petitioner
refers was not taken by Sgt. Summers. Instead, the document was written by B.W. herself and
taken by another individual to the Office of the Prosecuting Attorney, which then forwarded the


an adverse party may request the introduction at that time of any other part or any other writing
or recorded statement which ought in fairness to be considered contemporaneously with it.”
       15
            Petitioner also cursorily states in this argument as follows: “On a related issue, during
the trial[,] juror no. 1 was observed by members in the gallery utilizing an electronic device for
what appeared to be texting and reclining back with his eyes closed and appeared to be
sleeping.” It is undisputed that counsel was aware of this “related issue” prior to jury
deliberation, but that he failed to bring the same to the attention of the circuit court at that time.
Any claim with respect to Juror No. 1 was thus waived.


                                                  9

document to Sgt. Summers. The circuit court sustained the hearsay exception after petitioner’s
counsel asked Sgt. Summers, “Did [the statement] point to information that would implicate
Robbie Dillon of child pornography?” As this statement was an out-of-court statement offered to
prove the truth of the matter asserted, we find that the circuit court properly determined that it
was hearsay for which there was no recognized hearsay exception. See W.Va. R. Evid. 801(c)
(“’Hearsay’ means a statement that: (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted.”) We find no error.

        Next we address petitioner’s eighth assignment of error, in which he argues that the
circuit court prevented him from introducing evidence of “the identification of another
perpetrator by C.A.” Petitioner claims that C.A., in conversations with her mother, Brittany S.,
identified “Robbie Dillon” as present in the hotel room when she was allegedly assaulted by
petitioner. Although petitioner did not offer the testimony of C.A.’s mother, C.A.’s father,
Roger A. testified, as a witness for the State, that C.A. never stated that anyone else was present
at the time of the assault. Furthermore, there is absolutely no evidence in the appendix record
that petitioner attempted to call Brittany S.—or any other witness, for that matter—to testify
about the alleged identification of Robbie Dillon. Rather, petitioner’s argument appears to be
based on the circuit court’s ruling with regard to the testimony of Sgt. Summers, as described
above, indicating that he chose not to call additional witnesses “based on the [c]ourt’s ruling that
any identification by C.A. was hearsay. . . .”16 We find no logic in the argument that the circuit
court’s ruling on a hearsay objection with regard to a particular witness would summarily
preclude the presentation of other, specifically identified witnesses. There is no indication in the
appendix record on appeal that the circuit court’s singular ruling during the testimony of Sgt.
Summers was in fact a ruling encompassing any and all testimony about the identification of
other individuals. We find no error in this regard.

        Finally, we address petitioner’s ninth assignment of error, in which he argues—in a
single, brief paragraph with no citation to applicable legal authority—that the circuit court erred
in denying his motion for a new trial on the basis that the State offered no evidence corroborating
the testimony of Ms. C. “that C.A. was ever in the custody of [Ms. C.].” We consider petitioner’s
argument as one challenging the sufficiency of the evidence. We note:

       [A] criminal defendant challenging the sufficiency of the evidence to support a
       conviction takes on a heavy burden. An appellate court must review all the
       evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be

       16
          Petitioner offers no citation to the record to pinpoint the ruling of the circuit court that
is the basis for this argument. Again, we note that Rule 10(c)(7) of the West Virginia Rules of
Appellate Procedure requires that a party’s argument “contain appropriate and specific citations
to the record on appeal, including citations that pinpoint when and how the issues in the
assignments of error were presented to the lower tribunal.”



                                                 10

       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt.

Syl. Pt. 3, in part, State v. Guthrie, 194 W. Va. 657, 663, 461 S.E.2d 163, 169 (1995).

        In the case before us, Ms. C. testified that she fabricated a birthday party so that she,
together with petitioner, could take a three-year-old victim to a hotel for the purpose of inflicting
unspeakable harm for Ms. C.’s and petitioner’s own gratification. Text messages exchanged
between Ms. C. and petitioner detailed the plans that the pair had for their helpless prey.
Petitioner possessed pornographic images depicting the young girl, some showing the graphic
sexual acts committed in the hotel as Ms. C. described. We find the evidence was more than
sufficient to convict petitioner of the crimes charged.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: June 22, 2015

CONCURRED IN BY:

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




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