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State v. Peirano

Court of Appeals of Missouri, Southern District, Second Division

March 12, 2018

STATE OF MISSOURI, Plaintiff-Respondent,
MARK A. PEIRANO, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Eric D. Eighmy, Special Judge

          JEFFREY W. BATES, J.

         Mark Peirano (Defendant) was charged as a predatory sexual offender with committing the following offenses: one count of first-degree statutory sodomy (Count 1); and five counts of first-degree child molestation (Counts 2-6). See §§ 558.018; 566.062; 566.067.[1] A jury found Defendant guilty on all six counts and decided that Defendant was a predatory sexual offender. The trial court sentenced Defendant to concurrent life sentences on each count.[2]

         Defendant presents one point for decision. He contends the trial court abused its discretion in admitting testimony from his aunt and sister about Defendant's "sexual abuse when they were young as propensity evidence because it was not legally relevant … in that its probative value was substantially outweighed by the risk of unfair prejudice." We disagree and affirm.

         Defendant does not contest the sufficiency of the evidence to support his convictions. "We consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences." State v. Campbell, 122 S.W.3d 736, 737 (Mo. App. 2004); see also State v. Johns, 34 S.W.3d 93, 103 (Mo. banc 2000). Viewed from that perspective, the following facts were adduced at trial.

         The charges against Defendant stemmed from conduct in 2010 and 2012 involving his daughter E.B. (Victim). In 2010, when Victim was 9 or 10 years old, Defendant lived in a residence in Nixa. He was separated from Victim's mother, who lived in a nearby neighborhood. On one occasion at Defendant's residence, Defendant took Victim into the shower with him, telling her that he was going to teach her how to clean herself. Victim was old enough to clean herself and was taking showers on her own at this time. Defendant "rub[bed her] down with soap" and started touching "all of the parts" of her body, including her genitals and anus. He then told her that he wanted her to clean him. Victim told him that she did not want to do that, but he made her "clean" his penis with her hand.

         In May 2012, when Victim was 11 or 12, Defendant lived in a different residence. When Victim visited Defendant, he would tell her to come into his bedroom, usually late at night, and have her remove all of her clothing except her underwear. He told her to lie on top of him while he was naked or in his underpants, explaining that "skin-to-skin contact would … help him with his high blood pressure." Defendant would then touch her chest, buttocks, and genital area with his hands. The touching of her genital area inside of her underwear occurred "[m]ore than once." He "sometimes" touched her anus. She could feel his erect penis during these assaults, which she described as being a "bump" in his underwear.

         During the 2012 Christmas break, Victim was supposed to spend some time with Defendant. Victim said she was sick, so her mother told Defendant that Victim would come in a couple of days. When Victim's mother later told Victim it was time to pack to go to Defendant's house, Victim was unusually defiant about not wanting to go, which was out of character for her. Eventually, Victim's mother said, "There's got to be something going on here. What's going on?" Victim started crying and disclosed Defendant's sexual abuse of her.

         The abuse was reported to the Children's Division and the Christian County Sheriff's Department. Victim was interviewed at the Child Advocacy Center (CAC). Victim's younger brother also was interviewed. During his interview, he reported that he had been required to sit on Defendant's chest and was told by Defendant that this helped with his "blood pressure" and coughing. Victim's brother stated that this "creeped [him] out."[3]

         The State also presented testimony of Defendant's prior sexually assaultive acts against young family members. Defendant's ex-wife, with whom Defendant had a daughter, gave the following testimony. In 2001, the daughter was two years old. She told the ex-wife that daughter's "owie" (her word for her private area) was hurting and that Defendant had looked at it, "kissed it and stuck his tongue on it there." Defendant admitted to the ex-wife that he had looked at their daughter's "owie" because she said that it hurt, but he denied the other acts. The ex-wife made sure their daughter was never alone with Defendant again.

         Defendant's aunt (Aunt), who was approximately three years older than Defendant, testified about two incidents that occurred at family gatherings when Defendant was 14 and 15 years old, respectively. At a Fourth-of-July event, Defendant followed Aunt into a bathroom, approached her from behind and grabbed her breasts. Aunt pushed Defendant away and then avoided him for the rest of the evening. The following April, at a niece's birthday party, Defendant followed Aunt into the niece's bedroom, threw Aunt on the bed, overpowered her, and "rutted around" with his pelvis on her pelvis. He did this for a minute or two and then stopped when it appeared he had a "release" of sexual gratification. Aunt told her best friend and her sister about the April incident, but it was not reported to anyone else.

         Defendant's sister (Sister) gave the following testimony. She was 15 months younger than Defendant. He started sexually assaulting Sister when she was 9 years old and did so "all the time" until she was 17. He regularly touched her chest both over and under her clothes. On one occasion, he asked to touch her chest to help him "get warm" with her "body heat" after he had his wisdom teeth removed. Also, he often bent her over a freezer in the basement and would grind his crotch against her buttocks. On an occasion when Sister was 9 years old, Defendant asked to watch her take a shower and then he went into the shower with her. He told her to wash her crotch so he could watch her. On another occasion when Sister was either in junior high or early high school, Defendant walked in on her in the kitchen with his erect penis in his hand and "made eyes at" her. Another time, he picked up her feet and put them against his penis. He also would rub his crotch against her hand in locations where other people were present. She told her parents and her uncle about Defendant's abuse, but no one did anything to make it stop.

         The defense presented at trial was that the allegations made against Defendant were false. To support that defense, Defendant presented testimony from himself and several other witnesses. The jury found Defendant guilty on all charges, and this appeal followed.

         Defendant's single point challenges admission of testimony from Aunt and Sister about Defendant's sexual abuse of them when they were young.[4] A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion. State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so ...

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