Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court T.C. NO. 15-CR-3377
MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Attorney for Plaintiff-Appellee
STEPHEN P. HARDWICK, Atty. Reg. No. 0062932, Assistant Public
Defender, Attorney for Defendant-Appellant
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
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
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
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
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
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.
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 ...