[Cite as State v. Key, 2017-Ohio-4098.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                  :
                                                :
         Plaintiff-Appellee                     :  C.A. CASE NO. 27199
                                                :
 v.                                             :  T.C. NO. 15-CR-3377
                                                :
 DARIUS D.D. KEY                                :  (Criminal Appeal from
                                                :   Common Pleas Court)
         Defendant-Appellant                    :
                                                :
                                           ...........

                                          OPINION

                 Rendered on the ___2nd ___ day of _____June_____, 2017.

                                           ...........

MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

STEPHEN P. HARDWICK, Atty. Reg. No. 0062932, Assistant Public Defender, 250 E.
Broad Street, Suite 1400, Columbus, Ohio 43215
      Attorney for Defendant-Appellant

                                          .............

DONOVAN, J.

        {¶ 1} This matter is before the Court on the Notice of Appeal of Darius Key, filed

July 25, 2016. Key filed a delayed appeal from his June 8, 2016 Judgment Entry of

Conviction, following a jury trial, on one count of rape (victim under ten), in violation of

R.C. 2907.02(A)(1)(B), a felony of the first degree. Key was sentenced to 15 years to
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life. At issue herein is the trial court’s refusal to allow Key to testify that he volunteered

to take a polygraph examination. We hereby affirm the judgment of the trial court.

       {¶ 2} Key was indicted on November 12, 2015, and a not guilty plea was entered

on November 18, 2015. On December 21, 2015, Key filed a “Motion for Funding for

Expert Witnesses,” which provides in part that he “is also asking the Court for funding for

an experienced polygraph expert to administer a polygraph examination to determine the

truthfulness [of his] assertion of innocence. Mr. [Key] has been warned that he will be

bound by the results of the polygraph examination, but is nevertheless eager to clear his

name by submitting to such testing.”       Key directed the court’s attention to State v.

Sharma, 143 Ohio Misc.2d 27, 2007-Ohio-5404, 875 N.E.2d 1002 (C.P.), wherein the

Summit County common pleas court granted Sharma’s request for an evidentiary hearing

to qualify his polygraph examiners as experts and admitted the nonstipulated results of

the testing at trial. Key argued as follows:

              In Mr. [Key’s] case, the Court may wish to conduct an evidentiary

       hearing to evaluate the reliability of the polygraph evidence, to allow the

       polygraphist to testify as to the general acceptance of polygraph use and

       methodology, and further, to acknowledge that the defendant was not being

       deceptive in his answers to questions pertaining to the charges against him.

       Sharma, supra. This may help the charges against Mr. [Key] to be fairly

       evaluated and dealt with without the necessity of trial.

              In view of the potentially substantial sentence of incarceration Mr.

       [Key] is facing, as well as other collateral consequences, particularly as they

       relate to sexual predator standing and reporting, the Defense urges the
                                                                                          -3-


         Court to permit Mr. [Key] to undergo a polygraph examination by a

         competent examiner, to hold any pretrial hearing that the Court finds to be

         appropriate, and to find the results admissible.

         {¶ 3} The trial court overruled Key’s request on December 30, 2015, after a

hearing.     At the hearing, the State noted that it did not intend to stipulate to the

admissibility of the polygraph testing, and the court indicated that it “has no authority to

order a polygraph examination, or to allow its admissibility, unless that State stipulated to

such.”

         {¶ 4} At trial, in the course of questioning about DNA samples that Key provided in

the course of the investigation of his offense, the following exchange occurred:

                Q. And you voluntarily did this, right?

                A. Yes, sir.

                Q. Okay.

                A. I took one Q-tip and swabbed my left cheek, and I took another

         one is one of my right [sic]. And she inserted them into a little package and

         let me see that she inserted them. And I think I initialed them, and she

         sealed them up.

                Q. Okay.

                A. And after that, I was questioned again by the other detective,

         basically, the same questions. They may have been a different form, but

         the same questions. And then they asked me would I agree to a polygraph

         test, I told them yes, but - -

                MS. CONNELLY: Judge.
                                                                                            -4-


              BY MR. STENSON:

              Q. All right. Stop again.

              THE COURT: That object [sic] is sustained.

              MR. STENSON: Yeah. I - -

              THE COURT: The remark concerning a polygraph test is stricken.

              MR STENSON: Correct. It’s - -

              THE COURT: You’re to give it no consideration.

       {¶ 5} Directing our attention to the above exchange, Key asserts the following

assignment of error:

              THE TRIAL COURT ERRED BY PREVENTING MR. KEY FROM

       TESTIFYING       THAT     HE    OFFERED       TO    TAKE     A   POLYGRAPH

       EXAMINATION.

       {¶ 6} Key argues that “several jurisdictions have expressly permitted the

introduction of offers to take a polygraph examination.” According to Key, the “reason

polygraph offers are different from polygraph results is that polygraph examinations are

unreliable tests that the public often incorrectly views as reliable.” He argues that the

“evidentiary value of an offer to take a polygraph examination is only as strong as the

declarant’s belief in the reliability of the test.” Key asserts that jurors “may not be able to

assess the scientific reliability of a polygraph examination results, but jurors can assess

how a witness’s perception of the reliability affects the credibility of his statements, and

that is all that would have been at issue in this case because credibility was the central

issue.” Finally, Key argues that “[b]ecause the evidentiary value of an offer to take a

polygraph does not depend on whether a polygraph is scientifically valid, the evidence
                                                                                         -5-


was more probative than prejudicial.”

       {¶ 7} The State responds that this “Court is in good company in disallowing the

use of a defendant’s offer to take a polygraph as evidence of consciousness of innocence.

The Court should not accept Key’s invitation to adhere to the minority view.” The State

further asserts that “Key took the stand in his own defense and, in addition to his attempt

to present his willingness to take a polygraph, adamantly denied that he raped [the

victim.]” According to the State, “[m]oreover, [the victim’s] family members related how

Key denied the assault at the time of the incident, and the detective who interviewed Key

noted that he denied the allegations during his interview. With this in mind, any probative

value derived from Key’s bare willingness to submit to a polygraph was negligible.” The

State asserts that given “the low probative value of Key’s self-serving statement regarding

a potential polygraph test and the high risk that such a statement would needlessly

confuse the issues before the jury, the trial court struck the proper balance in excluding

the evidence.” Finally, the State asserts that since “any error committed by the trial court

did not affect Key’s substantial rights, the error would have been harmless, and Key’s

argument must be rejected for this final reason.”

       {¶ 8} “ ‘The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.’ State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343

(1987).” State v. Williams, 2d Dist. Montgomery No. 26369, 2016-Ohio-322, ¶ 17. “A

trial court abuses its discretion when it makes a decision that is unreasonable, arbitrary,

or unconscionable. State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463,

¶ 24.” Id.   “The Supreme Court of Ohio has defined ‘abuse of discretion’ as an

‘unreasonable, arbitrary, or unconscionable use of discretion, or as a view or action that
                                                                                         -6-

no conscientious judge could honestly have taken.’ State v. Kirkland, 140 Ohio St.3d 73,

2014-Ohio-1966, 15 N.E.3d 818, ¶ 67.” Id.

       {¶ 9} In State v. Russell, 2d Dist. Montgomery No. 21458, 2008-Ohio-774, this

Court held that it was error for the State to elicit testimony from its witness that she had

agreed to submit to a polygraph examination, and that her plea agreement was contingent

upon her passing the test, since “[b]y clear implication, the prosecutor in this case

informed the jury that she was vouching for Hargrove’s credibility because she wouldn’t

have put Hargrove on the witness stand if Hargrove hadn’t taken, and passed, the

polygraph examination.” Id., ¶ 118. This Court noted as follows:

              As a general rule, results of polygraph tests are not admissible to

       prove the guilt or innocence of the accused because such tests have not

       been recognized by the scientific community as being a reliable method for

       determining the veracity of the examinee. State v. Rowe (1990), 68 Ohio

       App.3d 595, 609, 589 N.E.2d 394; State v. Hegel (1964), 9 Ohio App.2d 12,

       13, 222 N.E.2d 666. Pursuant to this general rule, some courts have also

       held that, in addition to the results of a polygraph test, testimony expressing

       either the willingness or the refusal to submit to a polygraph examination

       should not be admitted in evidence. Hegel, 9 Ohio App.2d at 13, 222 N.E.2d

       666; State v. Smith (1960), 113 Ohio App. 461, 463–65, 178 N.E.2d

       605. However, polygraph test results may be admissible for the purposes

       of corroboration or impeachment, providing that the conditions set forth

       in State v. Souel (1978), 53 Ohio St.2d 123, 132, 372 N.E.2d 1318, are

       strictly followed. See Rowe, 68 Ohio App.3d at 609–10, 589 N.E.2d
                                                                                           -7-

       394; State v. Lascola (1988), 61 Ohio App.3d 228, 234–36, 572 N.E.2d 717.

              ***

              Initially, it should be noted that the State argues that we have held in

       a number of cases that it is permissible for the prosecution to ask one of its

       witnesses whether he or she agreed to submit to a polygraph examination

       as part of a negotiated plea deal, citing: State v. Schlosser (May 24, 1996),

       Montgomery App. No. 14976, 14968; State v. Ballard (Nov. 22, 1996),

       Montgomery App. No. 15410; State v. Perry (Nov. 25, 1998), Miami App.

       No. 97CA61, 98CA5; and State v. Scott (August 4, 2006), Montgomery

       App. No. 21260, 2006–Ohio–4016.

Id., ¶ 87, 107.

       {¶ 10} In Schlosser, 1996 WL 280038, *15 (May 24, 1996), this Court noted that

“[w]e see no abuse of discretion on the part of the trial court in admitting evidence which

reflected a witness’ mere willingness to take [a polygraph] examination.” As this Court

noted in Scott, ¶ 11-12:

              In Ballard, we held that the trial court did not err in denying a mistrial

       where a prosecution witness who was a co-defendant testified that his plea

       agreement required him to take a polygraph test if necessary. Likewise,

       we held in Perry that the trial court did not err in denying a mistrial where a

       prosecution witness testified that the defendant had asked to take a

       polygraph test. In both cases, we noted the existence of conflicting case

       law as to whether evidence of a willingness or refusal to submit to a

       polygraph test is admissible.     We also expressed our view that a trial
                                                                                            -8-


       court’s admission of evidence about a witness’ willingness to take a

       polygraph test was permissible and did not constitute an abuse of

       discretion.

              It does not follow, however, that the trial court was required to admit

       evidence of Scott’s willingness to take a polygraph test merely because the

       admission of such evidence may not constitute an abuse of discretion. To

       the contrary, a trial court also has the discretion to deny the admission of

       evidence concerning the willingness to take a polygraph test.            As we

       recognized in Perry, the admission of such evidence necessarily invites a

       jury to speculate about whether a test was taken and what the results were.

       Such issues are “too remote from competent evidence to reasonably and

       fairly be probative of guilt or innocence.” Perry, supra, at *7.

       {¶ 11} After reviewing the authorities cited by the State in Russell, this Court

noted as follows: “We conclude that we were wrong in holding that a witness’s willingness

to take a polygraph examination may properly be admitted in evidence over objection.

In reaching this conclusion, the members of this appellate panel are unanimous.” Id., ¶

114. Finally, this court noted that to “the extent that our prior jurisprudence is inconsistent

with this conclusion, we disapprove of that jurisprudence, and hereby signal our

unwillingness to follow it in future cases.” Id., ¶ 119.

       {¶ 12} Based upon the foregoing analysis, we conclude that Key’s assigned error

lacks merit. In other words, the trial court did not err in refusing to allow Key to testify

that he volunteered to take a polygraph test. Key’s assigned error is overruled, and the

judgment of the trial court is affirmed.
                                                  -9-


                                  .............

WELBAUM, J. and TUCKER, J., concur.

Copies mailed to:

Michael J. Scarpelli
Stephen P. Hardwick
Hon. Steven K. Dankof
