Texts Authenticated by Defendant’s Admissions That He Frequently Exchanged Messages with Alleged Recipient and That He Owned Cell Phone to and from Which Texts Were Exchanged with Her

State v. Spaulding, 2015 W. Va. LEXIS 819 (W. Va. Sup. Ct. June 22, 2015):

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.***

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 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 [*15]  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.

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."

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