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State v. Drago

Court of Appeals of Missouri, Eastern District, Second Division

August 22, 2017

ANTHONY P. DRAGO, Appellant.

         Appeal from the Circuit Court of Jefferson County 15JE-CR01328-01 Honorable Nathan B. Stewart Judge.


         Following trial, Anthony Drago ("Defendant") appeals the judgment entered upon a conviction of one count of first-degree child molestation, Section 566.067 (RSMo Cum. Sup. 2012). Defendant contends the trial court: (I) erred in denying him the opportunity to present facts surrounding his polygraph exam; and (II and III) plainly erred in failing to sua sponte issue curative instructions or strike the testimony of two witnesses. We affirm.


         In March 2012, the Missouri Children's Division placed then ten-year-old J.L. ("Victim") and his three siblings in the custody of S.F. ("Aunt") and R.F. ("Uncle"), who had four children of their own. Aunt and Uncle were close friends with Defendant. Defendant and his wife had four children, and Victim became friends with one of Defendant's children. About once a month, Victim would sleep over at Defendant's home, even though neither Defendant nor his wife was approved by the Children's Division as a supervisor of Victim. During one of these sleepovers, Victim awoke to find his pajama pants and underwear pulled down. Victim saw Defendant masturbating and felt Defendant touching his penis.

         Sometime thereafter Victim disclosed the abuse to his older sister but begged her not to tell anyone. A week later, Victim's sister reported the abuse to her camp counselor, who informed Aunt and Uncle the following day. Aunt and Uncle told Victim they were "just going to keep it within the family." They did not report the abuse allegation to the Children's Division, but subsequently prevented Victim from being alone with Defendant.

         After Aunt and Uncle decided to keep the abuse of Victim "in the family, " Uncle and Defendant consulted with their church's pastor ("Pastor") about the abuse. Defendant contends the Pastor suggested Defendant take a polygraph test and present the results to Uncle "in an effort to exonerate himself." Defendant did so, and shared the results (which were favorable to Defendant) with Uncle and Pastor.

         Approximately one year later, in June 2014, the abuse was anonymously reported to the Children's Division which ultimately led to Aunt and Uncle's loss of custody of Victim and his siblings. Defendant was charged with first-degree child molestation.

         Prior to Defendant's trial, the trial court granted the State's motion in limine excluding the polygraph results and circumstances. At trial, the State presented the testimony of Jamie Turnbough, an investigator with the Jefferson County Children's Division, and Christi Leslie, an interviewer with the Children's Advocacy Center. Each testified as to their general experience working with abused children, as well as to their specific interactions with Victim. Upon cross-examination, each stated that it is a "myth" that a child would falsely accuse another of sexual abuse for attention. Defendant did not object to either witness's testimony.

         A jury convicted Defendant of first-degree child molestation, and the court imposed a sentence of six years' imprisonment. This appeal follows.

         Point I-No Abuse of Discretion in Excluding Polygraph

         In his first point on appeal, Defendant contends the trial court erred in granting the State's motion in limine excluding (and denying his request at trial to admit) the favorable results and surrounding circumstances of the privately-conducted polygraph test. Defendant maintains these facts were relevant to provide context to Aunt and Uncle's testimony, in that they believed him and not Victim, thereby casting reasonable doubt in the jury's minds as to Defendant's guilt. Defendant asserts he was deprived of his right to due process of law, right to a fair trial, and right to present a defense, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, sections 10 and 18(a) of the Missouri Constitution.

         Standard of Review

         The trial court is vested with broad discretion to admit or exclude evidence. State v. Watling, 211 S.W.3d 202, 206 (Mo. App. S.D. 2007). An appellate court will reverse only if the trial court abused that discretion, which occurs when a ruling is "clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. This discretion must be exercised in careful ...

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