Parfenuk v. State

• Decision Date: 13 July 2016
• Docket Number: A16A0636
• Citation: 789 S.E.2d 332,338 Ga.App. 95
• Parties: Parfenuk v. The State.
• Court: Georgia Court of Appeals

338 Ga.App. 95

789 S.E.2d 332

Parfenuk

v.The State.

A16A0636

Court of Appeals of Georgia.

July 13, 2016

Robert Lawrence Persse, Statesboro, for Appellant.

Richard Ashley Mallard, Keith A. McIntyre, Statesboro, Benjamin Troy Edwards, for Appellee.

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 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 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).

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, 692 S.E.2d 820 (2010)

(citations and punctuation omitted); see, e.g., Mayberry v. State , 301 Ga.App. 503, 507, 687 S.E.2d 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 S.E.2d 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, 497 S.E.2d 797 (1998)

; Salisbury v. State , 221 Ga. 718, 719, 146 S.E.2d 776 (1966) ; Lockett v. State , 258 Ga.App. 178, 180–181, 573 S.E.2d 437 (2002) ; see, e.g., Lemons v. State , 172 Ga.App. 193, 322 S.E.2d 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, 620 S.E.2d 356 (2005)

, citing State v. Chambers , 240 Ga. 76, 76–77, 239 S.E.2d 324 (1977) and Morris v. State , 264 Ga. 823, 824, 452 S.E.2d 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 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, 340 S.E.2d 891 (1986)

, overruled on other grounds by Manzano v. State , 282 Ga. 557, 651 S.E.2d 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, 282 S.E.2d 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 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, 522 S.E.2d 225 (1999)

; Hayes v. State , 244 Ga.App. 12, 14–15, 534 S.E.2d 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...