                              FOURTH DIVISION
                              ELLINGTON, P. J.,
                           BRANCH and MERCIER, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       July 13, 2016




In the Court of Appeals of Georgia
 A16A0636. PARFENUK v. THE STATE.

      BRANCH, Judge.

      Michael Peter Parfenuk was convicted on two counts of child molestation as

well as two counts of sexual battery that were merged into the convictions for child

molestation for sentencing. Parfenuk was sentenced to consecutive 20-year terms for

the child molestation. On appeal, he contends that the trial court erred by ruling that

Parfenuk opened the door to admission of a lie detector test. He also contends that he

should be sentenced only for sexual battery based on the rule of lenity and that his

trial counsel was ineffective for failing to argue the rule of lenity at sentencing. For

the reasons stated below, we reverse.
      Construed in favor of the verdict,1 the evidence shows that the 14-year-old

female victim reported to 911, her parents, her grandmother, a counselor, and a school

resource officer that Parfenuk, age 59 at the time, had kissed her and touched her on

the breasts and vaginal area while she was visiting his home; she initially reported

that she had been raped, but in the conversation with her mother she clarified that

Parfenuk only had touched her.2 The police were called, and Parfenuk was arrested

on the day of the incident and gave a statement to the police. At trial, Parfenuk

testified in his own defense, and, among other things, admitted that he told someone

that he had known the victim for years and that he fulfilled two roles in her life, as a

“father figure” and as a “boyfriend figure.” Although Parfenuk did not mention doing

so in the statement that he filled out for the police on the day of the incident, Parfenuk

admitted at trial that he had kissed the victim on the lips. Parfenuk also testified on

direct examination that he often had young girls at his home and that he often gave

them a “peck on the lips.” He made these admissions during a lengthy narrative



      1
       “On appeal from a criminal conviction, the defendant is no longer entitled to
a presumption of innocence and we therefore construe the evidence in the light most
favorable to the jury’s guilty verdict.” Marriott v. State, 320 Ga. App. 58 (739 SE2d
68) (2013) (citation omitted).
      2
          The victim died sometime prior to trial.

                                            2
explanation of the sequence of events on the day of the incident, including his

questioning by police. At the end of the narrative, not in response to any question,

Parfenuk testified as follows:

      And I spoke to Detective Bradley [while sitting in a police car outside
      of the Parfenuk house]. He asked me if I’d take a - - voluntarily take a
      lie detector test. I said yes. So I followed another officer down to the
      police station. We waited a few minutes. Detective Bradley was there.
      He asked me some questions.


Neither party objected to Parfenuk’s statement. Immediately thereafter, still on direct

examination, Parfenuk admitted (without again mentioning the lie detector test) that

he changed his story while being questioned by Detective Bradley, that he initially

denied all touching but then admitted that he had kissed the victim on the lips.

      Later, during cross-examination, the State asserted that Parfenuk had opened

the door to cross-examination regarding the voice stress test that he took, including

the results of the test. The State argued that without being allowed to follow up on

Parfenuk’s testimony that he was asked to take the test and was willing to do so, “it

leaves the impression with the jury that he was willing to do something but the police

wouldn’t let him. It improperly bolsters [his testimony].” The State also argued that

the evidence was relevant because Parfenuk changed his testimony regarding kissing

                                          3
the victim after he failed the test. Parfenuk’s counsel objected on the ground that

Parfenuk’s testimony did not open the door to the results of the test that were

otherwise inadmissible; the court overruled the objection but noted Parfenuk’s

objection for the record. The court allowed the State to cross-examine Parfenuk about

the test, during which he admitted that the officer saw two indications that he was

being deceitful. The State was also allowed to recall the officer who administered the

test to the stand where he testified that Parfenuk admitted to kissing the victim on the

lips only after Parfenuk was told that the test indicated deception. The officer also

testified that he administered the test in an effort to determine whether Parfenuk had

touched the victim’s genital area or breasts and that the test showed that Parfenuk was

deceptive when he denied doing so. The trial court charged the jury on the nature of

polygraph/lie detector tests, including that it was up to the jury to decide what weight

to give to that evidence.

      Following his conviction, Parfenuk moved for a new trial, which the court

denied, and Parfenuk then appealed.

      1. Construed in favor of the verdict, the evidence presented was sufficient to

convict Parfenuk of child molestation and sexual battery. See OCGA § 16-6-4 (a) (1)

(child molestation); OCGA § 16-6-22.1 (b) (sexual battery).

                                           4
      2. Parfenuk contends the trial court erred by allowing the State to cross-

examine him regarding the lie detector test and to admit testimony regarding the

results of the test.3 “The trial court has broad discretion in determining the scope and

extent of cross-examination; absent a clear abuse of discretion, the action of the trial

court will not be disturbed.” Williams v. State, 303 Ga. App. 222, 229 (4) (692 SE2d

820) (2010) (citations and punctuation omitted); see, e.g., Mayberry v. State, 301 Ga.

App. 503, 507 (2) (687 SE2d 893) (2009) (trial court’s decision regarding whether

defendant opened the door to certain testimony upheld absent abuse of discretion).

“An abuse of discretion occurs where the trial court significantly misapplies the law

or clearly errs in a material factual finding.” In the Interest of R. W., 315 Ga. App.

227, 232 (3) (c) (726 SE2d 708) (2012) (punctuation and footnote omitted).

      The general rule in Georgia is that the results of polygraph tests, including

voice stress tests, whether favorable or unfavorable to an accused, are not admissible

in evidence, as they are not considered reliable. Price v. State, 269 Ga. 373, 375 (4)

(497 SE2d 797) (1998); Salisbury v. State, 221 Ga. 718, 719 (4) (146 SE2d 776)

(1966); Lockett v. State, 258 Ga. App. 178, 180-181 (2) (573 SE2d 437) (2002); see,


      3
        The State’s contention that this issue was not preserved by appellate review
is belied by the record, as shown above.

                                           5
e.g., Lemons v. State, 172 Ga. App. 193 (1) (322 SE2d 521) (1984) (holding that

“[t]he court did not err in excluding evidence that the defendant had offered to take

a polygraph examination”) (citation omitted). As explained by the Supreme Court of

Georgia, the results of a polygraph examination are inadmissible with two exceptions,

by a proper stipulation of the parties, or “to explain an actor’s conduct or motive

when such is relevant to the issues on trial.” Thornton v. State, 279 Ga. 676, 679 (4)

(620 SE2d 356) (2005), citing State v. Chambers, 240 Ga. 76, 76-77 (239 SE2d 324)

(1977) and Morris v. State, 264 Ga. 823, 824 (2) (452 SE2d 100) (1995).4 Here, the

parties did not stipulate to admission of the test results. Rather, the State contends that

the results were necessary to explain Parfenuk’s conduct and that separate from the

above exceptions to the general rule of inadmissibility, Parfenuk opened the door to

introduction of the test results by his own testimony at trial. We will address this

latter contention first.

       In essence, the State contends that Parfenuk opened the door to the test results

by testifying that he voluntarily agreed to take a lie detector test and that, after going


       4
       In fact in criminal trials, absent one of the above exceptions “the results of a
polygraph examination . . . have no probative value.” Feltham v. Cofer, 149 Ga. App.
379, 381 (1) (254 SE2d 499) (1979) (citations omitted); see also Johnson v. State, 272
Ga. App. 385, 386 (2) (612 SE2d 518) (2005).

                                            6
to the police station, Detective Bradley asked him some questions. Although we find

no case with these specific facts, the Supreme Court of Georgia has held that a

defendant may open the door concerning the results of a polygraph examination of

a witness by eliciting from the witness that the police made her take a polygraph and

that the test indicated that she was telling the truth. Cargill v. State, 255 Ga. 616, 637-

638 (22) (340 SE2d 891) (1986), overruled on other grounds by Manzano v. State,

282 Ga. 557 (651 SE2d 661) (2007). The same court has also held where defense

counsel opened the door regarding whether the State prevented the defendant from

taking lie detector tests, it was harmless, if error, to allow further evidence showing

that the defendant had not requested any tests. Mullis v. State, 248 Ga. 338, 342 (15)

(282 SE2d 334) (1981).

       Here, however, defense counsel did not elicit testimony about the test from

Parfenuk and Parfenuk did not reveal the test results, yet the State was allowed to

introduce the results of the tests, not just information about a request for a test.

Rather, Parfenuk’s comment, which came toward the end of a lengthy narrative,

appears to have been spontaneous or inadvertent. There is no indication that defense

counsel solicited the testimony. And our Supreme Court has held that the mere fact

that a witness informs the jury that the defendant took a lie detector test is not

                                            7
prejudicial to the defendant if no inference is raised as to the result or if any

inferences that might be raised as to the result are not prejudicial. Lyons v. State, 271

Ga. 639, 642 (6) (522 SE2d 225) (1999); Hayes v. State, 244 Ga. App. 12, 14-15 (4)

(534 SE2d 577) (2000). It follows that the same event — simply revealing that the

defendant took a lie detector test — is not prejudicial to the State if no inference is

raised as to the result of the test or if any inference is not prejudicial.5 Here,

immediately after mentioning the test, albeit without expressly attributing it to the

test, the defendant admitted that he changed his story while being questioned by

Detective Bradley, which prejudiced Parfenuk much more than the State.

      As stated above, the State’s second argument is that the results of the test were

probative and therefore admissible because Parfenuk changed his story after taking

the test. But the State introduced much more than the fact that Parfenuk changed his

story after taking the test; the trial court allowed the State to introduce the results of

the test itself. Those results were highly prejudicial to Parfenuk because they


      5
         Further, in several cases involving spontaneous remarks by a witness that he
or she took a lie detector test (without mentioning the results), there was no prejudice
to the defendant, especially where the trial court gave a curative instruction to the jury
to disregard the unsolicited statement. Curry v. State, 291 Ga. 446, 452 (4) (729 SE2d
370) (2012); Durden v. State, 274 Ga. 868, 869 (5) (561 SE2d 91) (2002). It follows
that there would also be no prejudice to the State under the same circumstances.

                                            8
indicated that he was deceptive when denying that he touched the victim’s breasts and

vaginal area.

       We hold that the trial court erred by allowing the State to introduce the results

of the voice stress tests. First, Parfenuk’s statement that he agreed to take a test was

not solicited by defense counsel and it appeared to be spontaneous and inadvertent.

Futher, he did not imply what the results of the test were, as the State now contends.

Indeed, at trial the State argued that Parfenuk had implied only that the State refused

to allow him to take a test. Second, although Parfenuk may have opened the door to

some evidence regarding taking the test, the trial court allowed the State to introduce

the results of the test, far exceeding any necessary rebuttal. But the results of the test,

including that they showed the officer that Parfenuk was being deceptive when he

denied the material allegations of the charges against him, invaded the province of

the jury. “A fundamental premise of our criminal trial system is that the jury is the lie

detector.” United States v. Scheffer, 523 U. S. 303, 313 (II) (B) (118 SCt 1261, 140

LE2d 413) (1998) (citation and punctuation omitted, emphasis in original), (Thomas,

J., joined by three justices). This evidence went to the core of the case, as Parfenuk’s

sole defense was that he denied touching the victim on the breasts and vaginal area,

and therefore we cannot say that the error caused no harm. For the above reasons, we

                                            9
hold that the trial court abused its discretion by allowing the voice stress test results

into evidence. Accordingly, a new trial should have been granted. See Cagle v. State,

132 Ga. App. 227, 228 (2) (207 SE2d 703) (1974) (new trial required where witness

testified that he received lying reactions from the defendant on a polygraph test and

the evidence impeached the defendant).

      3. In his remaining enumerations of error, Parfenuk contends his sentences

should be vacated and the case remanded for resentencing only for sexual battery

under the rule of lenity. He also contends that his trial counsel was ineffective by not

arguing for application of the rule of lenity during sentencing. Because these issues

are likely to reoccur on retrial, we will address them now. See Chancey v. Peachtree

Pest Control Co., 288 Ga. App. 767, 769 (2) (655 SE2d 228) (2007). We find no

error, however.

      “When the statutory law establishes different punishments for the same offense,

courts sometimes apply the rule of lenity to resolve the statutory ambiguity.” Rollf v.

Carter, 298 Ga. 557, 557 (784 SE2d 341) (2016) (citations and footnote omitted).

“The fundamental inquiry [when assessing whether the rule of lenity applies] is

whether the identical conduct[, meaning the specific conduct with which the

defendant was charged,] would support a conviction under either of two [criminal

                                           10
statutes] with differing penalties.” McNair v. State, 326 Ga. App. 516, 519 (757 SE2d

141) (2014) (footnote omitted).

      Here, Parfenuk was charged on two counts of child molestation in that he did

“unlawfully perform an immoral and indecent act, to wit: fondling the primary genital

area [and, in Count 2, the breasts] of [the victim], a child under 16 years of age, with

intent to arouse the sexual desires of said accused.” Thus, the State was required to

and did prove that Parfenuk sought to arouse his own sexual desires by touching the

victim. See OCGA § 16-6-4 (a) (1). The charges of sexual battery for the same

touching did not require proof of this same element. See OCGA § 16-6-22.1 (b).

Thus, there is no statutory ambiguity here regarding the proper penal statute to be

used in sentencing Parfenuk. Rather, child molestation was simply a greater offense

into which the charge of sexual battery was properly merged. See generally Dorsey

v. State, 265 Ga. App. 597, 602 (3) (595 SE2d 106) (2004). Accordingly, the rule of

lenity does not apply and trial counsel was not ineffective for not arguing for

application of the rule of lenity during sentencing.

      Judgment reversed. Ellington, P. J., and Mercier, J., concur.




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