State Of Washington, Respondent V. Jerry Lee Swagerty, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49054-4-II
Respondent,
v.
JERRY LEE SWAGERTY, UNPUBLISHED OPINION
Appellant.
JOHANSON, J. — Jerry Lee Swagerty appeals the superior court’s denial of his motion for
postconviction deoxyribonucleic acid (DNA) testing under RCW 10.73.170. Because Swagerty
failed to establish a likelihood that additional DNA testing would demonstrate innocence on a
more probable than not basis, even presuming a favorable outcome of the requested DNA testing
as required under RCW 10.73.170(3), we affirm.1
FACTS
I. BACKGROUND AND INITIAL PLEAS
In February 2004, a 10-year-old, developmentally disabled girl reported that a man had
lured her from a grocery store and sexually assaulted her by touching her vagina with his tongue.
A store video recorded a man approaching the child in the store and the child following the man
1 Because we affirm on this ground, we do not address Swagerty’s other arguments.
Filed
Washington State
Court of Appeals
Division Two
January 4, 2018

No. 49054-4-II
2
outside the store. About 10 minutes later, the recording showed the child returning to her father
in the store parking lot. The police initially investigated another person of interest, but that person
“passed a polygraph indicating that he was not the assailant.” Clerk’s Papers (CP) at 3. In May
2012, more than eight years after the incident, the State charged Swagerty with first degree rape
of a child and first degree child molestation.
According to the probable cause declaration that supported these charges, in April 2012,
the Washington State Patrol crime lab tested two samples from the crotch region of a pair of white
underpants that the victim had been wearing during the assault.2 The DNA tests were positive for
amylase, a substance found in high amounts in saliva and in lower amounts in various other bodily
fluids. The lab extracted DNA from the samples that was “consistent with at least two
contributors.” CP at 4. “Assuming that part of the DNA profile originated from [the victim], a
male profile was deduced from the mixture. The male DNA from the underpants was determined
to be a match to the defendant [(Swagerty)].” CP at 4. The declaration of probable cause also
mentioned that the victim was taken to the hospital and examined. But it did not mention any
vaginal swabs having been taken from the victim on the date of the incident or whether any vaginal
swabs were tested.
Following this DNA testing, the State charged Swagerty with first degree rape of a child
and first degree child molestation. During pretrial proceedings, the parties briefly discussed the
2 The record contains no explanation of why it took eight years for this evidence to be tested.

No. 49054-4-II
3
State’s request for cheek swabs from Swagerty to allow for additional DNA testing by the State
and independent testing by Swagerty.3
In arguing this motion, the State asserted that after the victim was taken to the hospital,
“[s]he underwent a medical examination and swabs were taken from her vagina. Those swabs
were analyzed, amylase was found, which is what saliva is contained in.”4 Report of Proceedings
(RP) (Sept. 28, 2012) at 12 (emphasis added). The State further asserted that “then there was a
cold case DNA hit that matched to the amylase in the defendant’s swabs.” RP (Sept. 28, 2012) at
12. The State stated that it was seeking additional cheek swabs from Swagerty for “chain of
custody purposes” and that it wanted to “compare that DNA [the cheek swab DNA] to the DNA
that was found for comparison purposes.” RP (Sept. 28, 2012) at 12. The State did not mention
the DNA testing of the victim’s underpants as described in the declaration of probable cause. The
trial court granted the order for the additional cheek swabs. There is nothing further in the record
about this additional testing.
In December 2012, the State advised the superior court that it (the State) had received DNA
results from the Washington State Patrol crime lab. There is no mention in the record of what
these additional results were or whether Swagerty conducted any independent testing.
3 Based on our record, the State did not explain why it requested additional testing.
4 The prosecutor’s statement that the DNA was found on swabs taken from the victim is
inconsistent with the facts in the probable cause declaration, which stated that the DNA was found
when the victim’s underpants were tested. Other than this statement by the prosecutor and
Swagerty’s assertions, there is nothing in the record before us suggesting that any swabs were
taken from the victim at the hospital.

No. 49054-4-II
4
In February 2013, Swagerty pleaded guilty to amended charges of third degree rape of a
child, luring, second degree burglary, and intimidating a witness. At the change of plea hearing
and the sentencing hearing, no one mentioned any issues involving DNA testing.
II. MOTION FOR POSTCONVICTION DNA TESTING
Three years later, in February 2016, Swagerty filed a pro se motion for postconviction
DNA testing, asking that the trial court order DNA testing “of [e]vidence taken directly from [the
victim] at the [h]ospital in 2004 at the time of [the] incident.”5 CP at 118. In support of this
motion, he asserted,
2. Declaration for Determination of Probable Cause . . . “clearly underlines
[that the victim] was taken to the Hospital on 02/14/2004 immediately after
the alleged incident.”
3. [Hospital] Report clearly provides that a thorough examination of [the
victim] was conducted with results that “no physical crime was evident”,
and that [the victim] was then forwarded for [DNA] testing whereof Jerry
Swagerty’s DNA has been on file since 2002 and “was not” discovered on
swabs taken directly from the vagina of [the victim] in 2004 at the time of
the alleged incident[].
CP at 120 (emphasis omitted).
5 While the motion for DNA testing was pending before the superior court, Swagerty also filed a
personal restraint petition (PRP). In re Pers. Restraint of Swagerty, noted at 185 Wn. App. 1032
(2015), rev’d in part, 186 Wn.2d 801, 383 P.3d 454 (2016). While this appeal was pending,
Swagerty’s PRP was granted, he withdrew his original plea, and he repleaded to one count of
second degree child molestation. Although the withdrawal of the original plea and entry of a new
plea raise the issue of whether this appeal is moot, we choose to address the merits of the appeal
because this matter is easily resolved.

No. 49054-4-II
5
On May 12, apparently without holding a hearing, the superior court denied Swagerty’s
motion for postconviction DNA testing.6 Swagerty appeals the denial of his motion for
postconviction DNA testing.
ANALYSIS
We review the trial court’s denial of Swagerty’s motion for postconviction DNA testing
for an abuse of discretion. State v. Riofta, 166 Wn.2d 358, 370, 209 P.3d 467 (2009). “A trial
court abuses its discretion when an order is manifestly unreasonable or based on untenable
grounds. ‘A discretionary decision is based on untenable grounds or made for untenable reasons
if it rests on facts unsupported in the record or was reached by applying the wrong legal standard.’”
State v. Thompson, 173 Wn.2d 865, 870, 271 P.3d 204 (2012) (internal quotation marks omitted)
(citation omitted) (quoting State v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009)). We may
affirm the trial court on any ground supported by the record. Hoover v. Warner, 189 Wn. App.
509, 526, 358 P.3d 1174 (2015), review denied, 185 Wn.2d 1004 (2016). We hold that the trial
court did not abuse its discretion.
6 In its ruling, the superior court stated, in part, “Even if defendant did comply with RCW
10.73.170(2)(b), pursuant to RCW 10.73.170(3), the DNA test which was already performed and
did not match defendant does not demonstrate defendant’s innocence on a more probable than not
basis.” CP at 135 (emphasis added). It is unclear to what evidence the superior court was referring.
Nothing in the record establishes that there was any DNA comparison that did not match
Swagerty’s DNA—at best, Swagerty’s statement in his motion for DNA testing might suggest that
there was some DNA tested that did not match his DNA, but there is nothing in the record
supporting that assertion. Because we can affirm on any ground supported by the record, we do
not further examine this portion of the trial court’s findings. Hoover v. Warner, 189 Wn. App.
509, 526, 358 P.3d 1174 (2015) (we may affirm the superior court on any ground supported by the
record), review denied, 185 Wn.2d 1004 (2016).

No. 49054-4-II
6
RCW 10.73.170(1) allows a person convicted of a felony who is currently serving a prison
sentence to file a motion requesting DNA testing with the court that entered the judgment on the
conviction. The motion for DNA testing must state that (1) “[t]he court ruled that DNA testing
did not meet acceptable scientific standards,” (2) the DNA testing technology was not sufficiently
developed to test the relevant DNA, or (3) new DNA testing could be significantly more accurate
or would provide new information. RCW 10.73.170(2)(a) (i)-(iii). The motion must also
“[e]xplain why DNA evidence is material to the identity of the perpetrator of, or accomplice to,
the crime, or to sentence enhancement.” RCW 10.73.170(2)(b). The motion must further
“[c]omply with all other procedural requirements established by court rule.” RCW
10.73.170(2)(c). Once these requirements are met, the superior court must grant the motion if “the
convicted person has shown the likelihood that the DNA evidence would demonstrate innocence
on a more probable than not basis.” RCW 10.73.170(3).
Here, in light of the DNA evidence discovered on the victim’s underpants, Swagerty does
not show a likelihood that any potential new DNA evidence from vaginal swabs would
demonstrate his innocence on a more probable than not basis. Even presuming, as we must,7 that
further testing revealed that any existing vaginal swabs contained no male DNA or DNA solely
from another male contributor, the DNA results showing that Swagerty’s saliva and DNA were on
the victim’s underpants would still be enough to demonstrate Swagerty’s guilt because there is no
possible innocent explanation for his DNA’s presence inside the victim’s clothing. Such new
evidence would not exclude Swagerty as the perpetrator—at best, it would raise the specter of a
7 When evaluating the potential evidence from the proposed DNA testing, we must presume the
evidence would be favorable to Swagerty. State v. Crumpton, 181 Wn.2d 252, 260, 332 P.3d 448
(2014).

No. 49054-4-II
7
second assailant. As our Supreme Court put it when addressing Swagerty’s ineffective assistance
of counsel claim in his PRP, “It is difficult to imagine what evidence or strategy could have
overcome the documented presence of Swagerty’s DNA in the victim’s underwear.” In re Pers.
Restraint of Swagerty, 186 Wn.2d 801, 814, 383 P.3d 454 (2016). The evidence as a whole, which
includes the DNA testing from the victim’s underpants implicating Swagerty, would not raise the
likelihood that Swagerty is innocent on a more probable than not basis.
Swagerty’s reliance on Thompson is unpersuasive. In Thompson, unlike here, none of the
DNA had yet been tested, and there was no existing DNA evidence linking Thompson to the crime.
173 Wn.2d at 869, 876. Here, in contrast, there was DNA evidence consistent with Swagerty’s
involvement in the crime.
Swagerty also contends that we should not give any weight to the DNA from the victim’s
clothing. He asserts that that DNA evidence from the underpants was “meaningless” because the
only evidence presented to the trial court related to the DNA tests of the underpants was a vague
statement about the tests in the probable cause declaration, which lacked any information on the
“statistical comparability” of the DNA match. Br. of Appellant at 8-9.
Swagerty is correct that information related to the DNA evidence from the underpants in
the probable cause declaration was minimal. But it is pure conjecture that these DNA tests were
not sufficiently detailed to have been admissible, relevant evidence of Swagerty’s involvement in
this offense if the case had gone to trial. The record does not show that Swagerty demonstrated to
the trial court that the existing DNA evidence from the underpants was inadequate, and he does
not request retesting of that evidence. And Swagerty cannot fault the State for not presenting
evidence that was not relevant once Swagerty agreed to plead guilty. Notably, there is nothing in

No. 49054-4-II
8
the record suggesting that Swagerty attempted to support his motion for postconviction DNA
testing with any additional evidence or documentation from the original DNA tests.
Accordingly, we hold that the trial court did not abuse its discretion when it denied
Swagerty’s motion and affirm the trial court’s denial of Swagerty’s motion for postconviction
DNA testing.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
JOHANSON, J.
We concur:
MAXA, A.C.J.
SUTTON, J.