State v. Swearinger

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STATE OF MISSOURI, Respondent, v. JOHN SWEARINGER III, Appellant.

No. ED111774

Court of Appeals of Missouri, Eastern District, Fifth Division

September 17, 2024

Appeal from the Circuit Court of Franklin County Cause No 18AB-CR02098-01 Honorable Craig E. Hellman

OPINION

Rebeca Navarro-McKelvey, J.

John Swearinger III (Swearinger) appeals from the trial court's judgment following his jury conviction on first-degree rape. Swearinger claims two points of error. First, he alleges the trial court erred in denying his motion for a judgment of acquittal because the State failed to present sufficient evidence Swearinger knowingly and voluntarily committed the act of first-degree rape in that he alleges he was asleep during Victim's assault. We find the trial court did not err in denying the motion for acquittal because the State presented a submissible case to the jury, establishing Swearinger acted knowingly and voluntarily. Second, Swearinger contends that the trial court plainly erred, by denying his motion for a continuance because the denial contradicted the court's previous finding that the witness's testimony was material, and the denial prevented him from securing the witness's appearance at trial through the Uniform Law.^[1]We find his claim unpreserved as it differs from the theory presented before the trial court, and even if preserved, would not support a finding of trial court error. Finding no merit in either claim, we affirm the trial court's judgment.

Background

In May of 2017, Victim^[2] was one of several guests at a three-day combined high school graduation party, birthday party, and camping trip at Meramec State Park. The partygoers included Swearinger, his girlfriend (Girlfriend), their infant child (Child), and Girlfriend's other children, including Girlfriend's Stepson (Graduate) and Graduate's brother (Stepson). Also in attendance were the biological mother of Graduate and Stepson (Stepson's Mother) and numerous friends, including S.J. Swearinger and Girlfriend rented two cabins: one for the young adults and one for Swearinger, Girlfriend, Child, and Girlfriend's other children. On the first night of the trip, Swearinger Girlfriend, and the young children stayed in one cabin, while the young adults stayed in the second cabin.

On the second day of the trip, everyone attended a float trip except Girlfriend, who stayed in her cabin to attend to Child. Upon Swearinger's return from the float trip, he informed Girlfriend that they needed to leave the park because the group, including Victim, was drinking alcohol and smoking marijuana. Swearinger began grooming his eyebrows and trimming his facial hair while Girlfriend packed up their belongings. After packing their belongings and saying goodbye to the group, Girlfriend and the children drove off in one vehicle, while Swearinger left in a separate vehicle. Sometime after driving away from the park, Girlfriend noticed Swearinger's vehicle was no longer behind her vehicle. Shortly thereafter, Swearinger texted her and informed her he had decided to remain at the park with the group.

That night, everyone spent the night in one cabin, which had two bedrooms. Victim, Swearinger, and other partygoers continued to drink alcohol and smoke marijuana throughout the evening. Originally, Swearinger planned to sleep in one of the rooms alone, while Stepson and Stepson's girlfriend slept in the other room. The rest of the group planned to sleep in the living room on the furniture or air mattresses. Rather than sleeping in his bedroom, Swearinger offered his bedroom to other partygoers, opting to sleep in the living room. Just before retiring, Swearinger asked one of Victim's friends if Victim was a heavy sleeper or if she had "taken anything."

Victim was one of the first people to fall asleep in the living room. She went to sleep on a single-person, pull-down chair that was approximately four-feet long and two-and-a-half feet wide. At some point, Victim woke up and noticed Swearinger was sleeping on an air mattress nearby. Victim fell back asleep. The second time Victim woke up, her shorts were pulled down to her thighs, she was lying on her side, and Swearinger was behind her. Victim could feel Swearinger's penis was fully inserted into her vagina, and he was slowly moving back and forth. Victim did not know what to do and continued to act as if she was still sleeping. Victim testified at trial she acted like this because she was embarrassed by what was happening and did not want any of her friends to find out. She also testified she was scared she would not be believed, did not want to answer any questions about the assault, and was worried about breaking up her friend group. At some point during the assault, Victim reached out and attempted to seek help by squeezing the hand of S.J., who was nearby, but S.J. did not wake up. At trial, Victim testified she was unsure how long the assault lasted, but stated Swearinger had sex with her for what "felt like" approximately thirty minutes until Swearinger pulled back too far and his penis "slipped out" of her vagina.

Before Swearinger could resume, Victim jumped up and ran shoeless, screaming out of the cabin and into the woods, where she hid behind a tree. Some of Victim's friends were awakened by her screams. Stepson's Mother found Victim in the woods, and Victim refused to leave until another friend came out to her. When Stepson's girlfriend and S.J. came out of the cabin to her, Victim and S.J. left the campground in S.J.'s vehicle. S.J. drove Victim to a gas station, where Victim called the police.

Police escorted Victim to the hospital. Medical personnel examined Victim and described her as "tearful," "anxious," and "emotional," but "cooperative." The treating Nurse indicated Victim's injuries, including vaginal tenderness, were consistent with a penis missing the entrance of the vagina and hitting the external part of the vagina. Nurse also identified an abrasion on Victim's labia, which was consistent with Victim's statement that Swearinger used his fingers to position his penis to penetrate her vagina.

The case proceeded to a jury trial, at which the State also produced DNA evidence. A mixture of DNA was found on the inside of Swearinger's underwear that was 9.747 septillion times more likely to be a combination of Swearinger and Victim than of Swearinger and an unknown female. Presumptive seminal fluid was detected on the back of Victim's shorts.

At trial, witnesses testified that after the event Swearinger gave several explanations as to why Victim ran out of the cabin. One statement was he had no knowledge as to why Victim left the cabin so abruptly. Another statement was Victim may have fled the cabin because he may have brushed up against her feet, and another statement was that Victim may have been startled when Swearinger became cold and "laid up against" her. At trial Swearinger testified in his own defense. Swearinger testified that because his air mattress was deflated Victim offered to share the chair with him, which required them to "spoon." He stated Victim began grinding on him as a form of "foreplay" he was familiar with from Girlfriend and, after some time, his penis was rubbed raw. Swearinger also testified that the head of his penis came outside of his shorts and became exposed. He claimed Victim bent his penis at a 90-degree angle and caused him to wake up from a "dream state." Specifically, he testified her buttocks "caught [his] penis and [bent it] down from where it was" to the 90-degree angle. Swearinger stated he then stopped but Victim tried to continue, which he refused, causing Victim to leave in a "huff" after ten to fifteen minutes. Swearinger testified that he did not recall ever penetrating Victim.

Girlfriend also testified at trial. Girlfriend testified Swearinger told her she had to leave on the second night because of the drug and alcohol consumption by the other partygoers. After she left the campground, Swearinger told Girlfriend he would stay behind to "keep an eye on them," and he assured her he would not sleep with Stepson's Mother. Girlfriend found this comment "weird." Girlfriend testified she and Swearinger did not engage in the kind of foreplay he described. She testified, that prior to trial, Swearinger repeatedly harassed her by telling her to stop lying about him and by using Child against her, making statements that he would "make sure that [Child] knows when she grows up that it's mommy that put daddy in jail." Girlfriend testified this harassment caused her to temporarily recant her statements prior to trial. Girlfriend testified Swearinger never told her Victim invited him to share the pull-down chair, but rather the air mattress he was sleeping on had deflated so he moved to join Victim when she was already asleep.

Swearinger moved for a judgment of acquittal at the close of State's evidence and again at the close of all evidence, which the trial court denied. Post-trial, Swearinger motioned for a new trial which was likewise denied. The jury found Swearinger guilty as charged of rape in the first degree, and the trial court sentenced Swearinger to forty years in prison.

Pre-trial motions _ for continuances and attempts to secure Witness S.J. 's testimony

Prior to trial, Swearinger attempted to secure Witness S.J.'s testimony. Swearinger moved for a continuance on February 7 2022, in order to conclude depositions, which the trial court granted. Swearinger first subpoenaed S.J. on May 12, 2022 for a deposition on June 14, 2022. Swearinger sought a second continuance on September 22, 2022, on the same grounds, which was granted, and again subpoenaed S.J. on the same day for an October 13, 2022 deposition. S.J. did not appear. Swearinger...