                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,
Plaintiff Below, Respondent                                                          FILED
                                                                                   February 11, 2013
                                                                                RORY L. PERRY II, CLERK
vs) No. 12-0096 (Grant County 11-F-3)                                         SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Ronald William VanMeter II,
Defendant Below, Petitioner


                                  MEMORANDUM DECISION

       Petitioner’s appeal, by counsel Agnieszka Collins, arises from the Circuit Court of Grant
County, wherein he was sentenced to consecutive terms of one to three years of incarceration
following his conviction of two felony counts of failure to pay child support by order entered on
December 21, 2011. The State, by counsel Dennis V. Dibenedetto, has filed its response.

       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.

        In December of 2011, petitioner was sentenced as outlined above following his conviction
on two felony counts of failure to pay child support in accordance with a July of 2005 order from
the Family Court of Grant County. Petitioner was indicted under two versions of the applicable
statute, based upon the time periods he was alleged to have failed to make payments and the
enactment date of a revised version of West Virginia Code § 61-5-29. On appeal, petitioner
alleges that the circuit court violated his due process rights by allowing the State to insist to the
jury that a family court order had previously deemed petitioner fit to pay child support, thereby
shifting the burden to petitioner to assert a defense of inability to pay. Petitioner also argues that
certain comments during trial prejudiced him, including statements regarding petitioner’s
arrearages as his to other children and petitioner’s home confinement. Petitioner also asserts that
the State failed to establish the specific twelve-month period during which he allegedly failed to
pay child support, as required by West Virginia Code § 61-5-29(2), and that the circuit court erred
in denying his motion of acquittal or for a new trial because the State failed to establish that
petitioner was able to make the payments at issue. Lastly, petitioner argues that the circuit court
erred in allowing introduction of evidence pursuant to Rule 404(b) of the West Virginia Rules of
Evidence.



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        In response, the State argues that its reference to the family court orders regarding
petitioner’s child support obligations was necessary to establish petitioner’s child support
obligations and that petitioner was not required, but instead chose, to explain his alleged inability
to pay child support. Further, the State argues that it did not make any unfairly prejudicial
comments during trial, but instead introduced relevant evidence in rebuttal after petitioner opened
the door to evidence regarding his prior incarceration and child support obligations for other
children. The State argues that it clearly proved the applicable time frames in which petitioner’s
crimes occurred, and that petitioner’s ability to pay the obligation was established by evidence of
his skills, prior employment, and a lack of evidence concerning any medical injuries that would
prevent employment. Lastly, the State argues that the circuit court did not err in denying
petitioner’s motion for acquittal or a new trial because it was presented with sufficient evidence
upon which to base his convictions.

        “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). To begin, the Court finds no merit in petitioner’s argument as
to burden shifting. Our review of the record clearly shows that the State properly introduced
evidence related to petitioner’s child support obligation and his ability to pay the same in order to
establish an essential element of the crimes charged. That petitioner chose to rebut this evidence
by submitting evidence alleging an inability to pay did not result in a shifting of the burden of
proof, as petitioner alleges.

        In regard to petitioner’s assignments of error related to the admission of certain testimony
and evidence, the Court notes that “‘[r]ulings on the admissibility of evidence are largely within a
trial court’s sound discretion and should not be disturbed unless there has been an abuse of
discretion.’ State v. Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599 (1983).” Syl. Pt. 1, State v.
Kaufman, 227 W.Va. 537, 711 S.E.2d 607 (2011) (internal citations omitted). Upon our review,
we find that the circuit court did not err in admitting the evidence of which petitioner complains,
nor do we find that petitioner was unfairly prejudiced by the evidence. Further, in regard to
petitioner’s allegation that the circuit court erred in admitting evidence under Rule 404(b) of the
West Virginia Rules of Evidence, the Court finds that the evidence was properly admitted in
rebuttal to petitioner having opened the door to these issues.

        As to petitioner’s allegation that the State did not establish that he failed to pay child
support for one year, the Court finds no merit to this assignment of error. We have previously
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

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       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.” Syllabus Point 3, State v. Guthrie, 194
       W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 2, State v. Ladd, 210 W.Va. 413, 557 S.E.2d 820 (2001) (internal citations omitted). The
Court finds that the State established the specific time element of the crimes charged, and finds
petitioner’s argument as to this assignment of error unpersuasive. Moreover, petitioner admits in
his brief that he failed to pay child support for a period of more than twelve months.

       Lastly, in regard to petitioner’s assertion that the circuit court erred in denying his motion
for acquittal or a new trial, the Court notes that

       “[u]pon motion to direct a verdict for the defendant, the evidence is to be viewed
       in light most favorable to prosecution. It is not necessary in appraising its
       sufficiency that the trial court or reviewing court be convinced beyond a
       reasonable doubt of the guilt of the defendant; the question is whether there is
       substantial evidence upon which a jury might justifiably find the defendant guilty
       beyond a reasonable doubt.” State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969).

Syl. Pt. 1, State v. Rogers, 209 W.Va. 348, 574 S.E.2d 910 (2001). Upon our review of the record,
the Court finds that the substantial evidence below was sufficient for a jury to find petitioner
guilty of the crimes charged.

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



                                                                                          Affirmed.

ISSUED: February 11, 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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