                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia,
                                                                                    FILED
Plaintiff Below, Respondent                                                        March 12, 2013

                                                                               RORY L. PERRY II, CLERK

vs) No. 12-0076 (Mercer County 10-F-255)                                     SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA

Rodney Worrell,

Defendant Below, Petitioner



                                 MEMORANDUM DECISION

       Petitioner’s appeal, by counsel R. Thomas Czarnik, arises from the Circuit Court of
Mercer County, wherein he was sentenced to three terms of incarceration of one to ten years, to
run consecutively, following his jury conviction for three counts of obtaining money by false
pretenses. That order was entered on December 15, 2011. The State, by counsel Andrew D.
Mendelson, has filed its response, to which petitioner has filed a reply.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On June 15, 2010, petitioner was indicted on three counts of obtaining money by false
pretenses by a Mercer County Grand Jury. The charges stemmed petitioner’s sale of three hot tubs
to three separate victims, all of whom had numerous delays in the delivery of their hot tubs such
that they had to contact law enforcement. Following a two-day jury trial, petitioner was convicted
on all counts and was subsequently sentenced to a term of incarceration of one to ten years for
each conviction, said sentences to run consecutively. However, the circuit court suspended
petitioner’s sentences for counts two and three and ordered that petitioner complete five years of
probation upon his release from incarceration.

        On appeal, petitioner alleges eight assignments of error. Three of these assignments of
error deal with allegations of insufficient evidence to support petitioner’s convictions and will be
addressed together. In support of petitioner’s first three assignments of error, petitioner argues
that, in regard to counts two and three, the State failed to establish the elements of intent, false
pretense, and obtaining. According to petitioner, he never met two of the victims until he
eventually delivered their goods. Further, he was prevented from delivering the goods earlier by a
forcible eviction from his storefront and the lack of access to his inventory.


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        Petitioner additionally asserts several assignments of error related to evidence under Rule
404(b) of the West Virginia Rules of Evidence. Petitioner argues that the circuit court failed to
give a cautionary instruction on this evidence and also erred in limiting the number of rebuttal
witnesses he was allowed to introduce. Lastly, petitioner alleges that the circuit court failed to
grant his motions to dismiss.

        In response, the State argues that the evidence at trial was sufficient to support petitioner’s
convictions because the jury was presented with evidence that petitioner had sole responsibility
for the business’s money, that he cashed the relevant checks and spent them on personal expenses,
and that he “had no plan . . . to make things right” with the victims. Further, the State argues that
it did not introduce any evidence pursuant to Rule 404(b) and that petitioner’s arguments on the
issue have no merit.

       We have held that

       “[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
       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. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996). As noted above, the jury
was presented with evidence that petitioner himself obtained the money and used it for his
personal expenses with no plan for “making things right” with the victims. For these reasons, the
Court finds the evidence was sufficient to support petitioner’s convictions.

        As to petitioner’s allegations that the circuit erred in limiting the number of character
witnesses petitioner could offer in rebuttal, the Court finds no merit in this argument. The record
shows that petitioner’s counsel agreed that putting on additional witnesses as to petitioner’s
character was unnecessary given that it would be cumulative to the two witnesses who had
already testified. We have previously held that “‘[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).” Syl. Pt. 2, State v. Payne,
225 W.Va. 602, 694 S.E.2d 935 (2010). For these reasons, we find no error by the circuit court in
denying petitioner’s request to examine additional witnesses.

       The Court also finds no merit to petitioner’s allegation that the circuit court erred in failing
to give a cautionary instruction related to the introduction of what he classifies as Rule 404(b)

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evidence. The record shows that after the evidence in question was admitted, the circuit court and
counsel for both parties discussed jury instructions and petitioner’s own counsel noted that a Rule
404(b) instruction was unnecessarily included in the proposed jury instructions. We have
previously held that “‘[o]ur general rule is that nonjurisdictional trial error not raised in the trial
court will not be addressed on appeal.’ Syllabus Point 9, State v. Humphrey, 177 W.Va. 264, 351
S.E.2d 613 (1986).” Syl. Pt. 4, State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987). Because
petitioner failed to raise this issue below, the Court declines to address it on appeal.

        Lastly, the Court declines to address petitioner’s assignment of error related to the circuit
court’s denial of his motions to dismiss below. In his petition for appeal, petitioner offers no
argument in support of this assignment of error. We have previously held that “‘[a] skeletal
“argument,” really nothing more than an assertion, does not preserve a claim . . . .’ State, Dep’t of
Health & Human Res. v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995)
(citation omitted).” State v. White, 228 W.Va. 530, 547, 722 S.E.2d 566, 583 (2011).

       For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed.


                                                                                            Affirmed.

ISSUED: March 12, 2013

CONCURRED IN BY:

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




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