ELIZABETH - After hearing conflicting testimony from more than a half dozen witnesses against a Wood County deputy accused of brandishing a weapon, a special magistrate heard enough.
Senior Status (Kanawha County) Magistrate Marva Crouch dismissed the charges against Wood County sheriff's deputy Brian Swiger after listening to about two and half hours of testimony Tuesday during a bench trial at the Wirt County Courthouse.
Swiger was accused of brandishing a weapon after getting into an altercation in October in Elizabeth.
Senior Status Magistrate Marva Crouch dismissing the charges against Wood County sheriff's deputy Br
According to the criminal complaint, Swiger, who was off duty and in his personal vehicle, got into an altercation with Herbert Toney. The complaint states Swiger, during the course of the altercation, pulled a firearm and waved it at Toney and in the direction of four witnesses.
Special Prosecuting Attorney Josh Downey called nine witnesses, including Toney. But much of their testimony was largely inconsistent.
When defense attorney Ginny Conley made the motion to dismiss the case - standard procedure when the prosecution rests - stating the case failed to meet its burden of proof, Crouch agreed.
Photo by Jody Murphy
Defense attorney Ginny Conley and her client Wood County sheriff’s deputy Brian Swiger listen to testimony from witnesses Tuesday at the Wirt County Courthouse.
"We have heard conflicting statements and stories and some it has been untruthful," Crouch said. "The state has not made its case."
Crouch dismissed the case, generating applause from more than two dozen people in the gallery, including a number of off-duty Wood County sheriff's deputies and Sheriff Jeff Sandy.
Conley noted in the criminal complaint, almost a dozen witnesses claimed Swiger pointed his weapon at them. When called to the stand, only three- Toney and the two men who pulled him away from Swiger - testified the off-duty deputy pointed his weapon.
The Case In Review
Brian Swiger was charged with brandishing, but the charges were dismissed by a special magistrate during a bench trial Tuesday in Wirt County.
Herbert Toney, who pleaded no contest to battery against Swiger, alleged the off-duty deputy brandished a weapon at a group of people stemming from an incident last fall.
Conley said Toney had a "vendetta" against her client.
"Maybe rightfully so, but that doesn't justify the charges," she said.
The altercation between Swiger and Toney was the result of Swiger dating Toney's ex-wife, according to court testimony. When Swiger accompanied Toney's ex-wife to pick up her children, Toney approached his ex-wife on the passenger's side of the car. He then went to the driver's side to confront Swiger, reaching into the vehicle and punching him several times, according to the testimony.
Shortly after the October incident Toney pleaded no contest in Wirt County Magistrate Court to one count of misdemeanor battery. He pleaded no contest the same day he was arraigned and was assessed fines and court costs of $260.
Toney alleged Swiger was seeing his ex-wife while they were still married. Conley didn't address the issue, stating her client didn't want to get into that.
Sandy, whose office conducted an internal investigation, said Swiger was never involved with the woman while she was married. He noted such action would have been a violation of the department's conduct policy.
"I commend Deputy Swiger for his professionalism throughout this stressful time," Sandy said. "I am proud that Deputy Swiger is under my command."
Toney, visibly irritated on the stand, kept his answers clipped, with mostly yes or no responses to questions.
Conley read Toney's statement to police, made on the night of the incident, stating Swiger never got out of the car until police showed up.
"No where does it say he pointed a gun," Conley said.
Toney stated he initially did not want Swiger to lose his job, that's why he didn't mention the gun in his initial statements. But he since changed his mind.
"I'd like to see him lose his job. He deserves to."
Conley got Toney to agree that Swiger only pointed the gun at him and two men restraining him from going back at Swiger.
Conley also asked Toney if he ever made any threats in email or Facebook posts toward Swiger. Toney said no.
Then Conley produced a Facebook message from Toney sent to his ex-wife challenging Swiger.
"This has been brewing for a while," Conley said.
"You're making him sound like he's innocent, but he's not," Toney said.
Two witnesses who pulled Toney off Swiger and backed him down the street testified Swiger exited from the vehicle and drew his weapon.
Josh "Hoss" Donnelly, a neighbor who alerted authorities to the fight, testified Swiger emerged from his vehicle, drew his weapon and pointed it at the ground.
"Did you see Brian Swiger pointing his gun at anyone?" Downey asked.
"No," Donnelly said.
One witness, Kevin Merrill, a neighbor, said he stood five to six feet from Swiger when he exited the car and remained there for five to 10 minutes. But in court, under oath, Merrill testified he couldn't identify Swiger "if he was in the courtroom." Swiger, dressed in a suit, was sitting at the defense table beside Conley.
Another witness, Jeremiah "Jasper" Twyman, testified Swiger pointed the gun at Toney and the two men restraining him.
Twyman also testified Swiger was antagonizing Toney, but he couldn't specifically recall what Swiger said. Crouch had enough.
She pulled counselors into chambers for sidebar.
When she emerged Twyman was dismissed. Downey rested his case. And Conley asked for a directed verdict, citing "multiple, different stories" from the witnesses.
Downey, red faced, argued the state had met its burden, noting when Swiger exited the car, Toney was restrained and there was no threat.
"Toney was not near the vehicle. No one was near the vehicle," he said.
Crouch asked Downey if he had any more witnesses. He said yes, one; Paul Bunner, Toney's cousin.
Crouch said she would allow Downey one more opportunity to meet the burden of proof.
Bunner, a U.S. Postal Service employee, testified he pushed Toney away from the car, but didn't remember anything after that and said he didn't know anything. Conley had no questions after Downey finished and renewed her motion for a directed verdict. Crouch quickly granted it.
"After hearing the testimony and verdict, the citizens of Wood County should be asking, like I am, why this fine young man and Wood County deputy had to endure this trial," Sandy said.
On the witness stand West Virginia State Police Sgt. M.S. Godfrey was asked by Conley how they arrived at the brandishing charge against Swiger. Godfrey said Wirt County Prosecuting Attorney Leslie Maze was the one who determined to bring charges.
"She gave me the go-ahead," Godfrey testified.
"It was my belief a crime had occurred," he added. "I had asked her advice and she advised me Swiger committed brandishing."
Godfrey said the charges stemmed from the statements made by Toney and witnesses at the scene.
Swiger was embraced by relatives in the courtroom, as well as his girlfriend. He has been on paid leave from the department since the incident.
Following the dismissal of charges he asked Sandy if he could return to duty. Sandy said Swiger would return to duty immediately.
"Your uniform is pressed," Sandy said.