State v. WiggersState v. Wiggers
Brian T. Goldberg, Cincinnati, Ohio, for appellant.
Nicole Coil, Washington County Prosecuting Attorney, and Kelsey R. Riffle, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
Wilkin, J.
{¶1} This is a consolidated appeal from two Washington County Court of Common Pleas judgment entries. In Case No. 23CA5, David S. Wiggers, Sr. (“appellant“) was convicted of domestic violence, a fourth-degree felony, under
BACKGROUND
{¶3} On October 25, 2023, appellant was indicted on a single count of domestic violence, a fourth-degree felony under
{¶4} Phillip was the first to testify. He indicated that he is appellant‘s brother. He testified that on October 1, 2023, he went to 35 Ridgewood Boulevard, in Belpre, Ohio, to retrieve a trailer frame left to him by his father. He stated that the property is jointly owned by his mother, sister, appellant, and himself, with appellant residing in the house on the property. Phillip was accompanied by his youngest son, Ethan, and his oldest son, Phillip N., who arrived later. Upon arrival, they went directly to the trailer to prepare the frame for removal, but found it secured with cables and blocks. Thus, Phillip told his son to grab a pair of bolt cutters to cut the cable. Phillip testified that as they were preparing to cut the cable, appellant came out of the house swinging an axe handle and threatening to “kill a couple assholes.” Phillip indicated that this got his attention because appellant was “dangerous.” Phillip stated that appellant
{¶5} Phillip further testified that after the initial confrontation, he pushed appellant against a building to prevent him from recovering and retaliating. Appellant‘s back was up against the building, causing them to be face-to-face. Phillip stated that appellant‘s “body weight had come down on me[,]” preventing him from getting up, causing injury to his hamstring. Phillip started hollering for help. His son Ethan intervened and wrestled appellant to the ground. Phillip stated that he told Ethan to let appellant up, and when he did, appellant lunged at Phillip again. As they fought, Ethan intervened again and was able to get appellant on the ground. Phillip stated that appellant then left the scene and did not return.
{¶6} Phillip confirmed that neither he, nor his sons, used the axe handle or any other weapon against appellant. He also mentioned that he sought medical treatment for his hamstring injury, which required surgery and resulted in an infection, necessitating further medical care.
{¶7} During the cross-examination, Phillip acknowledged that he did not inform appellant of his visit and hoped he would not be home to avoid any confrontation. Phillip also had asked his mother to be at the property as a peacekeeper, but she did not arrive until after the altercation. Phillip further indicated that he did not believe the trailer was titled, but it was “in [his] father‘s name at the time.”
{¶9} Further, Phillip denied taking appellant‘s keys or phone, stating they were on the ground and were given to the sheriff. However, he acknowledged that he might have stated that he took the keys to unlock the trailer but did not remember the exact details. Phillip admitted to causing appellant‘s orbital bone and nose injuries but was unsure about the rib injury.
{¶10} Next to testify was Phillip N., Phillip‘s son. On October 1, 2023, Phillip N. went to 35 Ridgewood Boulevard in Belpre, Ohio, to meet his brother and father to acquire a trailer. Upon arrival, he observed appellant approaching his father and brother with what appeared to be a club or axe handle and heard appellant shouting threats. Phillip N. stated that appellant swung the club at Phillip and missed, and then Phillip struck appellant. The altercation moved towards a shed, where Phillip pinned appellant against the building. Phillip N. noted that his father appeared injured, grabbing his leg and going to the ground, which led to his brother (Ethan) intervening to control the situation. He did not see his father or brother pick up any weapons or strike appellant.
{¶11} Phillip N. stated that law enforcement arrived at the scene, and he spoke to them about the incident. Phillip N. acknowledged that he was there to
{¶12} Deputy Thornberry was next to testify. Thornberry is employed by the Washington County Sheriff‘s Office and has been working there for two years, with a total of five years of law enforcement experience. On October 1, 2023, Thornberry responded to a domestic call at 35 Ridgewood Boulevard in Belpre, Washington County, Ohio. Upon arrival, he observed Phillip lying on the ground and inquired if he needed medical attention, to which Phillip responded that he would drive himself later if necessary. Thornberry was not wearing a bodycam during the incident, so there is no recording of his investigation. Phillip showed him an axe handle allegedly used during the incident, but Thornberry did not collect it as evidence. After leaving the 35 Ridgewood Boulevard address, Thornberry went to another location where appellant was believed to be, intending to obtain a statement from him. Appellant was in the back of an EMS vehicle but declined to make a statement because rib pain made it difficult to talk. However, Thornberry indicated that appellant agreed to provide a statement at a later date, but he never did. Thornberry observed that appellant appeared dazed and in pain during their interaction. The Deputy claimed that his decision to arrest appellant was based on the statements of Phillip and witnesses present at the scene.
{¶13} However, during cross-examination, Thornberry admitted that he did not separate the witnesses during the investigation, which is typically
{¶14} Appellant testified that he grew up at 35 Ridgewood Boulevard, Belpre, Ohio, and has lived there continuously since March 2020. He confirmed that the property‘s title includes his mother, himself, his sister, and his brother, all of whom were in the courtroom. Appellant stated he was retired, but previously worked as a carpenter and is a United States Navy veteran, having served from 1981 to 1984 at Pearl Harbor, Hawaii. His father passed away in March 2022. Appellant stated he has one brother (Phillip) and two sisters (Tia and Valissa).
{¶15} Regarding the incident on October 1, 2023, appellant explained the property situation, referencing a trailer that was once a camper, which he and others stripped down; he planned on selling the tongue and using beams from it to repair his house. He told his mother about these intentions the day before the incident.
{¶16} On the day of the incident, appellant claimed he was sitting in his living room watching the Browns football game when he noticed Phillip arriving in a red truck. He claimed that Phillip had a five-or six-foot wooden post. Appellant grabbed an axe handle from his house and went out to meet his brother, but purposely did not yell or escalate the situation even though he was irritated.
{¶18} Appellant asserted that after Phillip tossed the post aside and while being held by Phillip N., Phillip punched him in the face, breaking his nose. Appellant indicated he lost consciousness. Upon regaining consciousness, he claimed he was lying beside the building with Phillip striking and threatening him. Appellant said Phillip N. then drove his head back into the ground, likely fracturing his orbital bone and he again lost consciousness.
{¶19} Appellant described awakening to his dog licking him and sees Phillip instructing Phillip N. to remove cables from the trailer. Appellant recounted rolling down a hill into a wooded area, crossing a creek to a neighbor‘s house, where he called for help and collapsed. The homeowner and his son came to assist him and called 911.
{¶20} Appellant explained that Phillip demanded his phone and keys but he threw them over Phillip‘s head in hopes of creating a distraction to escape. While at the neighbor‘s house, he informed the EMTs, who were treating him, that he had been hit with a post in the chest, kicked, suffered a broken nose, and had rib pain.
{¶21} Certified copies of appellant‘s medical records were admitted into evidence as Defendant‘s Exhibit D. Appellant read the records which stated that
{¶22} On cross-examination, appellant was questioned about his statements to EMTs and hospital staff concerning his alcohol and marijuana use on the day of the incident. On direct examination, appellant testified that he only had two mixed drinks that contained two shots of alcohol. However, on cross-examination it was established that his medical records indicated he told the EMT he had four shots and smoked some marijuana, and that he told the hospital staff that he had consumed seven to eight shots. Appellant admitted smoking marijuana and having four shots, but denied telling the hospital staff that he had seven or eight shots.
{¶23} Upon the completion of appellant‘s testimony, the defense rested, and the State had no rebuttal witnesses. Closing arguments were then conducted and the trial judge found appellant guilty as charged. The trial court sentenced appellant to 5 years of community control, restitution of $19,526.85, and 120 days in jail. Appellant filed a notice of appeal from this conviction on February 12, 2025.
{¶24} Subsequent to sentencing, the State filed a complaint charging appellant with violating his community control because “he failed or refused to sign his terms and conditions of community control.” On January 28, 2025, the court held a probable cause hearing on the alleged violation. Appellant waived
{¶25} On February 26, 2025, the trial court held the community control violation hearing. The court stated: “All right. So my understanding is [appellant] wants to admit to the motion and complaint charging a violation of community control and then argue sentencing?” Appellant‘s counsel responded affirmatively. The court also asked appellant if he admitted to the violation and appellant responded: “Yes sir.” The court asked appellant if he understood by admitting to the violation the State no longer had to prove by clear and convincing evidence that appellant had violated his community control because “you‘re admitting it.” Again, the appellant responded affirmatively. After the court confirmed that the parties had stipulated that there was a “factual basis for the violation[,]” it accepted appellant‘s admission.
{¶26} The court then proceeded with resentencing appellant. The prosecutor argued that a prison sentence was appropriate while defense counsel sought community control. In determining appellant‘s sentence, the court indicated that it “considered the record, the written reports, all oral statements made, and Ohio laws relating to the sentencing for a felony.” The court further stated that
it weighed the seriousness and recidivism factors, has considered the overriding purposes of felony sentencing, and that is
[necessary] to protect the public from future crime by the [appellant] and others, and to punish [appellant], using the minimum sanctions and that the court determines accomplishes those purposes, without imposing an unnecessary burden on state or local government, and having considered the need for incapacitating the [appellant] deterring the [appellant] from other future crime, rehabilitating the [appellant] and making restitution.
The court also found that appellant had been dishonest after trial and again at this hearing.
{¶27} The court then expressly revoked appellant‘s community control and found appellant was not amenable to community control. Instead, the court found that a prison term was consistent with the purposes and principles of sentencing, and imposed a definite prison term of 15 months with 102 days of jail-time credit plus transport time, and notified him of optional post-release control up to 2 years. Appellant filed a notice of appeal from this sentence on March 13, 2025.
{¶28} We sua sponte consolidated the appeals of his conviction in Case No. 25CA5 and of his re-sentencing in Case No. 25CA10 for purposes of this decision.
ASSIGNMENT OF ERROR ONE
CASE NO. 25CA5
APPELLANT‘S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE
{¶29} Appellant argues in his sole assignment of error in Case No. 25CA5 that his conviction for domestic violence was not supported by sufficient evidence and was contrary to the manifest weight of the evidence. He contends that the
{¶30} Furthermore, appellant claims that the testimony from the State‘s witnesses was inconsistent and did not credibly establish his guilt. He points out that both witnesses testified he swung an axe handle but missed, while he testified he did not swing the handle because he was assaulted first and never had the chance. Appellant argues that he was the victim, suffering significant injuries, including a broken nose and fractured orbital bone, while his brother, who initiated the confrontation, was unharmed by any physical act of appellant. He concludes that the evidence showed his brother was a trespasser looking for a fight, and thus, the conviction should be vacated.
{¶31} Finally, appellant notes that his neighbor called the police. Appellant argues that logically, if his brother, Phillip was truly the victim, he would have called the police.
{¶32} The State argues that appellant‘s conviction for domestic violence was supported by sufficient evidence. The State highlights that appellant did not deny swinging an axe handle at the victim, which was corroborated by both the victim and an eyewitness. It argues that appellant‘s claim that he lacked intent to
{¶33} The State also argues that appellant‘s conviction is not against the manifest weight of the evidence. The State maintains that it introduced substantial evidence for all elements of the offense, and the jury did not lose its way. The State points out that two witnesses testified consistently that appellant was the only one with a weapon and that he swung it at the victim‘s head. The State disputes appellant‘s claim that he caused the victim no physical harm, stating that the victim‘s injury was a direct result of the appellant‘s actions.
{¶35} Regarding appellant‘s argument that logically Phillip would have called the police if he were the victim, the State maintains the use of logic rarely comes into play during a domestic violence situation, nor is it something that the State must prove. The State also emphasizes that the trial court‘s ability to observe witness testimony and note inconsistencies in the appellant‘s statements, contrasting them with the consistent testimony of the victim and eyewitness.
{¶36} Thus, the State concludes that there was both sufficient and substantial evidence to support the conviction, and the trial court did not err in its judgment.
A. Law
{¶38} ” ‘In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed.’ ” State v. Coleman, 2026-Ohio-666, ¶ 19 (4th Dist.), quoting Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). ” ‘Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.’ ” Id., quoting C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279 (1978), syllabus.
{¶40} In addition, “[a] verdict is not against the manifest weight of the evidence because the finder of fact chose to believe the State‘s witnesses.” State v. Chancey, 2015-Ohio-5585, ¶ 36 (4th Dist.), citing State v. Wilson, 2014-Ohio-3182, ¶ 24 (9th Dist.), citing State v. Martinez, 2013-Ohio-3189, ¶ 16 (9th Dist.). ” ‘While the [trier of fact] may take note of inconsistencies and resolve or discount them accordingly, * * * such inconsistences “sic” do not render defendant‘s conviction against the manifest weight or sufficiency of the evidence.’ ” State v. Corson, 2015-Ohio-5332, ¶ 31 (4th Dist.), quoting State v. Proby, 2015-Ohio-3364, ¶ 42 (10th Dist.), citing State v. Gullick, 2014-Ohio-1642, ¶ 10 (10th Dist.).
“Accordingly, if the prosecution presented substantial credible evidence upon which the trier of fact reasonably could conclude, beyond a reasonable doubt, that the essential elements of the offense had been established, the judgment of conviction is not against the manifest weight of the evidence.” State v. Nickell, 2025-Ohio-1232, ¶ 44 (4th Dist.), citing State v. Picklesimer, 2012-Ohio-1282, ¶ 24 (4th Dist.), citing Volkman, 2012-Ohio-2179, at ¶ 12, quoting
B. Analysis
{¶41} Appellant was convicted of domestic violence in violation of
{¶42} “A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist.”
{¶43} ” ‘When determining whether a defendant acted knowingly, his state of mind must be determined from the totality of the circumstances surrounding the alleged crime.’ ” State v. Valladares, 2018-Ohio-1250, ¶ 20 (3rd Dist.), quoting State v. Ingram, 2012-Ohio-4075, ¶ 22 (10th Dist.). Culpable mental states are frequently established through circumstantial evidence. Id., citing Ingram at ¶ 22. ” ’ “[W]hether a person acts knowingly can only be determined, absent a defendant‘s admission, from all the surrounding facts and
{¶44} Appellant argues it is against the manifest weight of the evidence that he knowingly caused or attempted to cause physical harm to the victim. We disagree.
{¶45} Appellant admitted after he saw Phillip pulling into his yard, he exited his house with an axe handle in hand. Phillip testified that the appellant approached him swinging the axe handle, threatening to kill someone. Phillip further claimed that appellant swung the axe handle at his head but missed, and then he managed to wrestle the axe handle away from appellant. Appellant denied swinging the axe handle at Phillip, but Phillip N. corroborated Phillip‘s testimony. Phillip authenticated the photo of the axe handle admitted into evidence as the State‘s Exhibit 7, and Deputy Thornberry confirmed that State‘s Exhibit 7 was the axe handle shown to him at the scene.
{¶46} Appellant claimed in his testimony that Phillip used an object against him, but both Phillip and Phillip N. consistently denied appellant‘s assertion. Further, appellant‘s credibility was called into question as he gave conflicting accounts of alcohol consumption. He testified he consumed one-and-a-half mixed drinks and rejected a medical record indicating he consumed seven to
{¶47} Merely because the court, which is the tier of fact in this case, believed the State‘s testimony does not make its verdict against the manifest weight of the evidence. Chancey, 2015-Ohio-5585 at ¶ 36 (4th Dist.). Moreover, we find it is reasonable for a factfinder to infer that a person, who is swinging an axe handle at someone‘s head, is aware that their conduct will probably cause that person physical harm. Therefore, we conclude that the State presented substantial evidence to support that appellant knowingly attempted to harm Phillip, thereby committing domestic violence. This is not the rare case where the fact finder lost its way and created a manifest injustice. Accordingly, we overrule appellant‘s assignment of error in case number 25CA5 and affirm the trial court‘s judgment of conviction.
ASSIGNMENT OF ERROR
CASE NO. 25CA10
THE TRIAL RECORD DOES NOT SUPPORT THE DECISION TO REVOKE APPELLANT‘S COMMUNITY CONTROL AND IMPOSE A PRISON SENTENCE
{¶48} Appellant argues in his sole assignment of error in Case No. 25CA10 that the record does not support the trial court‘s decision revoking his community control and imposing a prison sentence. He contends that the violation was based solely on his refusal to sign the terms and conditions of
{¶49} The State argues that the record supports revocation because appellant refused to sign community control terms and conditions, which undermines enforcement and shows he is not amenable to supervision. The State asserts the standard under
A. Law
{¶51} Appellant maintains that “the trial court‘s record does not support the trial court‘s decision to revoke appellant‘s community control and impose a prison term.” We note that the revocation of community control and the subsequent resentencing imposed involve separate standards of review.
1. Community Control
{¶52} The proper standard when reviewing decisions revoking community control is an abuse of discretion. State v. Stricklett, 2025-Ohio-1247, ¶ 7 (4th Dist.), citing State v. Mehl, 2022-Ohio-1154, ¶ 7 (4th Dist.). An abuse of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Cihon, 2023-Ohio-3108, ¶ 19 (4th Dist.), citing State v. Adams, 62 Ohio St.2d 151, 157-158 (1980). “Once a court determines that community control should be revoked and a prison term imposed, the trial court‘s sentencing decision is reviewed under the standard set forth in
2. Prison Sentence
{¶53}
[t]he court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
(Emphasis added.)
B. Analysis
1. Community Control
{¶54} In his appeal, appellant vaguely claims that he “did not fully understand everything” regarding his community control. The requirement to obey his community control, which included signing its terms and conditions, was not a complicated obligation. Further, as noted by the trial court during the appellant‘s initial sentencing, he has a criminal history that includes a probation violation in an OVI case. Thus, it seems unlikely that appellant was unfamiliar with the obligations of community control.
{¶55} After his conviction for domestic violence, appellant requested a community control sentence. The court agreed but warned him that he must obey the terms and conditions provided by the probation department. The court specifically instructed appellant that he would have to “sign off on [the term and conditions of his community control].” The court informed appellant that if he
{¶56} At his probable cause hearing on his community control violation, appellant waived probable cause and agreed to proceed directly on the State‘s complaint. The court informed appellant that refusing the terms and conditions of community control left the court no option but to send him to prison. Appellant indicated that he understood.
{¶57} Finally, and perhaps most important to our analysis, several weeks after his probable cause hearing at his community control revocation hearing, appellant admitted that he violated his community control sentence.
{¶58} Appellant was aware from the date of his initial sentencing and was reminded numerous times by the court in subsequent proceedings that he had to comply with his community control or he would likely be sentenced to prison. Yet he failed to do so even though, as divulged at his initial sentencing hearing, appellant had a criminal history including a parole violation. Thus, appellant‘s argument that he did not understand his obligation under community control rings hollow.1
{¶59} Under these facts, we find that the trial court‘s revocation of appellant‘s community control sentence was not unreasonable, arbitrary, or
2. The Prison Term
{¶60} Similar to Stricklett, because appellant admitted to a violation of his community control that resulted in resentencing to a prison term, appellant‘s resentencing to an 15-month prison term is reviewed under
The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant.
(Emphasis added.)
{¶61} This language permits an appellant to challenge the trial court‘s findings under
{¶62} In the instant case, appellant does not identify
{¶63} For the aforementioned reasons, in Case No. 25CA10, we find that appellant‘s assignment of error that the trial court‘s record does not support the trial court‘s decision to revoke appellant‘s community control and impose a prison term lacks merit. Therefore, we affirm the trial court‘s revocation of appellant‘s community control and his resentencing to a 15-month prison term.
CONCLUSION
{¶64} Pursuant to the analyses infra, we affirm appellant‘s conviction in Case No. 25CA5 and the trial court‘s revocation of appellant‘s community control and imposition of a 15-month prison term in Case No. 25CA10.
JUDGMENTS AFFIRMED.
It is ordered that the JUDGMENTS ARE AFFIRMED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.