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Washington v. Swagerty

April 11, 1991

THE STATE OF WASHINGTON, RESPONDENT,
v.
ALLEN WARREN SWAGERTY, APPELLANT



Morgan, J. Worswick, C.j., and Petrich, J., concur.

Author: Morgan

Allen Swagerty appeals his conviction for statutory rape in the first degree. We affirm.

On September 24, 1987, Debra Macks and her 5-year-old daughter visited Allen Swagerty, his wife and children. Macks and Swagerty consumed alcohol and marijuana, and both became intoxicated. Macks then went home, leaving her daughter with the Swagerty family. When Macks returned, the daughter said that Swagerty had raped her.

Within a short time, Swagerty was arrested, and in a police interview he admitted digital but not penile penetration. Later, he told a jailer, "I did it." A pediatrician examined the girl and found that her genitals were bruised and red. Laboratory analysis showed spermatozoa in her anal

area, seminal fluid on her pajama bottoms, and a public hair similar to the defendant's on her pajama bottoms.

At trial, Swagerty's theory was voluntary intoxication and diminished capacity. He testified that on the night in question, he had ingested beer, whiskey, "pot," "speed," Valium and cocaine, and that as a result, he was in a "blackout" state from when Mack went home until he awoke in jail the next day. He offered the testimony of John Hutt, an alcohol and drug counselor, and he proposed jury instructions on voluntary intoxication and diminished capacity. The trial court excluded part of Hutt's proposed testimony and declined to give the jury instructions. Swagerty was convicted and given an exceptional sentence upward.

On appeal, Swagerty makes three contentions. He argues that the trial court erred by (1) excluding part of Hutt's testimony, (2) refusing to give his proposed jury instructions, and (3) imposing an exceptional sentence. We consider the jury instructions first.

I

Jury Instructions

The defendant appeals the trial court's refusal to give seven of his proposed jury instructions.*fn1 In his brief, he summarizes his argument this way:

Although the crime of Statutory Rape in First Degree is a crime that does not have an element of intent, the defendant must know what he is doing, that is having sexual contact with someone, in order to commit the crime at all. The defendant's ...


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