Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Jefferson County 15JE-CR01328-01
Honorable Nathan B. Stewart Judge.
P. PAGE, PRESIDING JUDGE.
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.
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.
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.
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.
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
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.
convicted Defendant of first-degree child molestation, and
the court imposed a sentence of six years' imprisonment.
This appeal follows.
I-No Abuse of Discretion in Excluding Polygraph
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
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 ...