SALT LAKE CITY — Charges in a 2010 rape case were dismissed for a man already incarcerated for a similar offense after prosecutors were unable to proceed with a preliminary hearing Monday.
David Zachary Swigart, 53, had been scheduled to face a preliminary hearing last month where prosecutors would have presented evidence to support charges of aggravated sexual assault and rape, both first-degree felonies, and forcible sexual abuse, a second-degree felony.
The hearing was canceled because the victim in the case did not appear, according to court records.
At a scheduling conference Monday, Swigart's attorneys motioned to dismiss the charges when prosecutors again couldn't proceed with the preliminary hearing, court records indicate. Third District Judge Elizabeth Hruby-Mills granted the motion.
The charges were dismissed without prejudice, which means prosecutors are still able to file the case again in the future if they choose.
On Sept. 16, 2010, a woman was walking to a bus stop in South Salt Lake when a man approached her from behind "and started making comments about her appearance," then told her he had a gun and would kill her if she didn't come with him, according to charging documents.
The man took the woman behind a business, raped her and "threatened to kill her if she screamed," court documents state.
Swigart was charged in November in connection with the case, which stalled years ago when a sexual assault kit collected during the investigation was set aside. Investigators looking into a similar case in 2013, which Swigart was not ultimately charged in, submitted the sample for comparison. At that time it came up with a "hit" in the DNA national database used by law enforcement.
But at that point, Salt Lake County District Attorney Sim Gill said authorities had lost contact with the woman. After the woman was located and confirmed she wanted to pursue prosecution, a search warrant for a confirmation DNA swab was executed on Swigart in 2016. A match came back in October.
According to court records, Swigart has an extensive criminal history. He has been incarcerated at Utah State Prison since 2011, serving a sentence of at least three years and up to life for attempted aggravated sexual assault, a first-degree felony.
In that case, police say Swigart followed a woman off a TRAX train and into a field in Sandy on Oct. 31, 2010. He then knocked the woman to the ground, choked her and sexually assaulted her. Police later located Swigart in the same area wearing clothing the woman had described, and the woman identified Swigart as her attacker, according to court documents.