Patterson v. State , 212 Ga. App. 257 ( 1994 )

Cooper, Judge.

Defendant was tried before a jury and found guilty of child molestation in violation of OCGA § 16-6-4. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Appellant enumerates the general grounds. The evidence reveals that the victim, appellant’s five-year-old stepdaughter, told her mother, her aunt, a teacher, a DFACS investigator, and a police investigator that appellant pulled down the victim’s pants and rubbed his genitals across her vaginal region. Pursuant to OCGA § 24-3-16, these statements were admitted into evidence. Although the victim recanted from the stand, testifying that her prior accusations against appellant were false and had been induced by the jealous aunt, her prior inconsistent statements became substantive evidence that the molestation occurred as she had originally alleged. Brown v. State, 175 Ga. App. 246 (1) (333 SE2d 124) (1985). This evidence was sufficient to authorize a rational trier of fact to find proof of appellant’s guilt of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Weeks v. State, 187 Ga. App. 307 (1) (370 SE2d 344) (1988).

2. Appellant enumerates as error the denial of his motion in limine to exclude the results of a polygraph test. The record reflects that on October 9, 1990, after his formal arrest but while he was free on bond, appellant was questioned at home by Investigator Payne of the Fannin County Sheriff’s Department about the victim’s allegations. Appellant was orally advised of his right to remain silent and his right to have counsel present during any questioning, and orally waived those rights. During this interrogation, appellant and the investigator discussed the possibility of appellant taking a polygraph examination. Investigator Payne informed appellant that he did not have to take a polygraph and that the results of a polygraph would not be admissible in evidence unless he so stipulated in writing. Payne showed appellant the stipulation form, which included a waiver of the right to counsel but did not contain any notice or waiver of the right to silence or against self-incrimination. Nor did this form recite that the test results were inadmissible in evidence in the absence of the stipulation. Appellant declined to sign the stipulation form at that time, saying that he wanted time to think it over and to discuss it with his wife. On October 11, 1990, appellant appeared at the sheriff’s office and informed Investigator Payne that he would agree to take the polygraph. The form stipulation as to the admissibility of the results was signed at this time. The examination was given on October 15, 1990, and on that day appellant signed a notice and waiver of rights indicating that he had completed school through the 12th grade. Appellant also signed a written consent form which recited that he was voluntarily agreeing to take the examination and informed him of his right to terminate the examination at any time. In compliance with OCGA § 43-36-13 (e), the polygraph examiner read to appellant the questions he would ask during the interview before actually conducting the examination.

It is not required that the accused have counsel present or act only upon the advice of counsel in order to render a stipulation to the admissibility of the results of a polygraph examination valid and binding upon the accused. See Van Kleeck v. State, 250 Ga. 551 (3) (299 SE2d 735) (1983). After having been advised of his right to remain silent and his right to have counsel present during any questioning, an accused may validly waive those rights, and when the accused “makes a knowing waiver of his right to counsel and stipulates to the admissibility of the results of a polygraph examination, the results are admissible at trial.” Ivey v. State, 203 Ga. App. 886 (1) (418 SE2d 71) (1992). There is evidence that appellant knew and understood his rights before he waived counsel and stipulated to the admissibility of the polygraph results. Therefore, the determination of the trial court that appellant’s stipulation was knowingly and voluntarily entered into is supported by evidence and is not, therefore, clearly erroneous.

Judgment affirmed.

Smith, J., concurs. Beasley, P. J., concurs specially.