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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