Bobby Lee Sanders, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Bobby Lee Sanders, Jr. (“Sanders”) appeals, following a jury trial, his conviction for Level 4 felony child molesting.¹ Sanders argues that the trial court abused its discretion when it admitted into evidence Sanders’ polygraph exam results. Concluding that the trial court did not abuse its discretion, we affirm the trial court's judgment.

[2] We affirm.

Issue

Whether the trial court abused its discretion when it admitted into evidence Sanders’ polygraph exam results.

Facts

[3] One evening in April 2017, Sanders stayed the night with ten-year-old D.A. (“D.A.”) and her mother (“D.A.’s mother”). Sanders and D.A.’s mother were in a relationship. After finishing a movie, D.A. got into her mother's bed to go to sleep. D.A.’s mother and Sanders were already in the bed, and D.A. laid in the middle of the bed between her mother and Sanders.

[4] D.A. fell asleep and “woke up” because Sanders “started touching” her on her “private part.” (Tr. at 19). Specifically, Sanders placed his hand underneath D.A.’s clothing and moved his hand “in [a] circular motion” on D.A.’s clitoris. (Tr. at 20). Sanders did not say anything to D.A. while he touched her. A TV remote fell off of the foot of the bed and clattered on the hardwood floor, which woke up D.A.’s mother and caused Sanders to stop touching D.A. D.A.’s mother got out of bed to get some water, and D.A. did not tell her mother what had happened to her at that time.

[5] A few days later, D.A. told a social worker at her school that Sanders had touched her. D.A. also told her grandmother that Sanders had touched her. As a result, D.A. gave a video-recorded interview at a child advocacy center (“the child advocacy center interview”). A Marion Police Department Detective (“the detective”) also attended the child advocacy center interview. During the child advocacy center interview, D.A. told the interviewer that Sanders had put “his hand in [her] pants.” (State's Ex. 6 at 16:24). D.A. further told the interviewer that Sanders had put his hand underneath her pants and underwear and touched her vagina with his fingers.

[6] After the child advocacy center interview, the detective conducted a video-recorded interview of Sanders (“the police interview”). During the police interview, Sanders agreed to a polygraph exam to prove that he had not touched D.A.’s vagina. The detective contacted a Marion Police Department polygraph examiner (“the polygraph examiner”) and scheduled a polygraph exam for Sanders.

[7] In early May 2017, a nurse examiner (“the nurse examiner”) at a hospital performed a forensic examination of D.A. (“the forensic exam”). During the forensic exam, D.A. told the nurse examiner that Sanders had “inserted his hand underneath her panties and began rubbing her vagina.” (Tr. at 69). After the forensic exam, the nurse examiner prepared a report (“the nurse examiner's report”).

[8] Sanders’ polygraph exam occurred approximately two weeks after his police interview. The polygraph examiner reviewed the polygraph stipulations form (“the polygraph stipulations”) with Sanders, and Sanders and the State both signed the polygraph stipulations. The polygraph stipulations provided, in relevant part, that:

It is hereby agreed and stipulated between one [Sanders,] without the presence of an attorney, and the State of Indiana, through the MARION POLICE DEPARTMENT that said suspect voluntarily agrees and has requested permission to take a polygraph ․ examination[.]

* * * * *

It is further agreed and understood that [Sanders] has on more than one (1) occasion been advised of her/his right to counsel and that she/he is hereby and was prior to the signing of this agreement, advised of her/his rights to counsel and the fact that polygraph examination may not be entered into evidence against her/him in the event that charges are filed against her/him. That being so advised and so cognizant of the law of evidence pertaining to polygraph examinations, the said [Sanders] does, pursuant to the terms of this agreement, waive and relinquish that right and does hereby agree that the results of said examination may be used in any cause of action which should arise against her/him as a result of any charges filed against her/him arising out of the incident herein above described.

* * * * *

6. The results and/or opinions of said examination are to be released orally and in writing by the examiner to both sides within twenty (20) days after the administration of the final polygraph test.

This written report will be introduced into evidence, without objection by either side, at the time of the examiner's testimony at any trial or hearing.

(Ex. Vol. 4 at 7-8).

[9] Additionally, the polygraph examiner reviewed the polygraph waiver form (“the polygraph waiver”) with Sanders, and Sanders and the polygraph examiner both signed the form. The polygraph waiver provided, in relevant part, that:

4. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.

5. If you cannot afford a lawyer, one will be appointed to you before any questioning if you wish.

6. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.

7. I have read the above statement of my rights and it has been read to me. I understand what my rights are. I do wish to take the polygraph test. No force, threats, or promises of any kind or nature have been used by anyone in any way to influence me to waive my rights. I am signing this statement after having been advised of my rights and before taking the polygraph test.

(Ex. Vol. 4 at 9-10).

[10] Thereafter, the polygraph examiner administered a video-recorded polygraph exam (“the polygraph exam”) to Sanders. During that polygraph exam, the polygraph examiner asked Sanders if he had touched D.A. on her “bare vagina,” and Sanders denied doing so. (Tr. at 81). The polygraph examiner wrote a report containing Sanders’ polygraph exam results (“the polygraph report”) and a polygraph score sheet (“the polygraph score sheet”).

[11] After the polygraph exam, the polygraph examiner informed Sanders that he had failed the polygraph exam. Thereafter, both the polygraph examiner and the detective interviewed Sanders and questioned him about his recollection of what had happened on the night of the incident. Sanders told the detective and the polygraph examiner that he had taken a Xanax that evening and that it had impaired his memory of what he might have done that evening. Sanders told the polygraph examiner and the detective that he had woken up in the middle of the night, may have reached out to touch D.A.’s mother, and may have mistakenly touched D.A.

[12] The State charged Sanders with Level 4 felony child molesting. In August 2025, the trial court held a jury trial. D.A. identified Sanders and testified that Sanders had touched her vagina. Further, D.A. testified that she had not told her mother immediately about what Sanders had done because she had been “scared [that] [her mother] wasn't gonna believe [her].” (Tr. at 23).

[13] During D.A.’s cross-examination, Sanders moved to admit and the trial court admitted into evidence the child advocacy center interview. Sanders published the child advocacy interview to the jury. Throughout direct and cross-examination, D.A. consistently testified that Sanders had touched her vagina.

[14] During the detective's testimony, the trial court admitted into evidence the police interview with Sanders. The State published the police interview to the jury. Additionally, during the nurse examiner's testimony, the trial court admitted into evidence the nurse examiner's report.

[15] The State subsequently called the polygraph examiner, who testified that he was a certified polygraph examiner and testified to his training and experience as a polygraph examiner. During the polygraph examiner's testimony, the State moved to admit into evidence the polygraph stipulations and the polygraph waiver. Sanders objected to both exhibits, and the trial court admitted these exhibits over his objection. Additionally, when the State asked the polygraph examiner if he had read and explained the polygraph stipulations to Sanders, he responded that he had. The State also asked the polygraph examiner if he had “go[ne] over” the polygraph waiver with Sanders, and the polygraph examiner agreed that he had. (Tr. at 77).

[16] When the State asked the polygraph examiner about the results of the polygraph exam, Sanders objected and asked the polygraph examiner preliminary questions. Specifically, Sanders asked the polygraph examiner if he, after Sanders had signed the polygraph stipulations, had made representations about the accuracy of a polygraph. The polygraph examiner acknowledged that he had. Sanders asked the polygraph examiner if he had told Sanders that “some say” that polygraph exams are ninety-six to one hundred percent accurate, and the polygraph examiner responded that he had. (Tr. at 82). Sanders asked the polygraph examiner if he had told Sanders that polygraph exams were seventy to ninety percent accurate, and the polygraph examiner responded that he had not.

[17] Thereafter, Sanders objected, arguing that the polygraph examiner had told him that the polygraph exam was ninety-six to one hundred percent accurate, and if Sanders had known that the exam was seventy to ninety percent accurate, he may not have taken the exam. Sanders argued that the polygraph results should not be admitted for this reason. In response, the State noted that Sanders had already signed the polygraph stipulation prior to being informed of the polygraph exam's accuracy. Sanders conceded that he had signed the polygraph stipulations prior to the polygraph examiner's statements on accuracy but argued that the polygraph examiner had led him to believe that polygraph exams were very accurate when they were not.

[18] The trial court overruled Sanders’ objection and found that the four prerequisites required for the admission of polygraph evidence under Sanchez v. State, 675 N.E.2d 306 (Ind. 1996) had been met. The trial court then admonished the jury as follows:

[Y]ou're instructed that the polygraph examiner's testimony does not tend to prove any element of the crime [of] child molesting but at most, such testimony tends only to show whether the Defendant was being truthful at the time of the examination. Further, it is for each of you to determine the weight and effect to be given to the polygraph examiner's testimony.

(Tr. at 84). Sanders requested a continuing objection to the admission of the polygraph exam results, and the trial court granted that request.

[19] The polygraph examiner testified that it was “correct” that Sanders had shown signs of deception during his polygraph exam. (Tr. at 84). The State moved to admit into evidence the polygraph exam score sheet, the polygraph examiner's report, and the video-recording of the polygraph exam, and the trial court admitted these exhibits over Sanders’ continuing objection. The State published portions of the video-recorded polygraph exam to the jury.

[20] Sanders testified in his own defense. Specifically, Sanders denied that he had touched D.A. or her vagina on the night of the incident. Sanders further testified that he had denied touching D.A. throughout his discussions with the detective and the polygraph examiner.

[21] The trial court included in its final instructions the polygraph instruction it had read previously to the jury. At the conclusion of the jury trial, the jury found Sanders guilty of Level 4 felony child molesting. At his sentencing hearing, the trial court sentenced Sanders to four (4) years, fully suspended to probation.

[22] Sanders now appeals.

Decision

[23] Sanders argues that the trial court abused its discretion when it admitted into evidence his polygraph exam results. “The admission or exclusion of evidence rests within the sound discretion of the trial court, and we review for an abuse of discretion.” Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024) (cleaned up), cert. denied. “A trial court exceeds its discretion only where the decision is clearly against the logic and effect of the facts and circumstances.” Id. (cleaned up).

[24] Our Indiana Supreme Court has explained that:

[a]bsent a waiver or stipulation by the parties, the results of polygraph examinations administered to criminal defendants are not admissible. As such, there are four prerequisites to the admission of polygraph results: (1) the prosecution, defendant, and defense counsel must all sign a written stipulation providing for the defendant's submission to the examination and for the subsequent admission of the results at trial; (2) notwithstanding that stipulation, the admissibility of the test results is at the trial court's discretion regarding the examiner's qualifications and the test conditions; (3) the opposing party shall have the right to cross-examine the examiner if his or her graphs and opinion are offered into evidence; and (4) the jury should be instructed that, at most, the examiner's testimony tends only to show whether the defendant was being truthful at the time of the examination, and that it is for the jury to determine the weight and effect to be given to the examiner's testimony.

Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (cleaned up).

[25] Here, the State argues, and Sanders concedes, that the above four factors required for the admission of the polygraph results were present. Indeed, our review of the record reveals that Sanders and the State signed the polygraph stipulation, and Sanders and the polygraph examiner signed the polygraph waiver. In the polygraph stipulation, Sanders agreed that he had been advised of his right to counsel. Further, in the polygraph waiver, Sanders was advised of his right to counsel and waived that right. We have previously explained that “[t]he defendant's counsel would be required to sign the stipulation only when a defendant's 6th amendment right to counsel has already attached and where the defendant has not waived such right to counsel.” Owens v. State, 373 N.E.2d 913, 915 n. 2 (Ind. 1978). Here, Sanders was clearly advised of his right to counsel and waived that right. Sanders does not argue, nor do we believe, that a defense counsel was required to sign the stipulation.² See id. See also Kochersperger v. State, 725 N.E.2d 918, 923 (Ind. Ct. App. 2000) (noting that the first prerequisite cannot be challenged where a defendant had been advised of his right to counsel, waived that right, and did not argue on appeal that the right to counsel was unknowingly or involuntarily waived).

[26] Further, the trial court heard testimony from the polygraph examiner regarding his qualifications, training, experience, and the test conditions. In addition, the trial court admitted into evidence the video-recording of the polygraph exam, and the State published portions of the video-recorded polygraph exam. Sanders also thoroughly cross-examined the polygraph examiner. Finally, the trial court instructed the jury with a cautionary instruction regarding polygraph exams both when it admitted the polygraph results and in its final instructions. Thus, the four prerequisites required before the admission of the polygraph exam results were met here, and the trial court did not abuse its discretion when it admitted into evidence the polygraph results.³

[27] Despite his concession that the four prerequisites for the admission of polygraph evidence had been met, Sanders argues that the polygraph results are inadmissible because the polygraph examiner misrepresented the accuracy of polygraph exams to Sanders. Sanders cites to Willey v. State, 712 N.E.2d 434 (Ind. 1999) for the proposition that agreeing to a polygraph stipulation “must not be the product of misrepresentation or mistake of fact.” (Sanders’ Br. 15) (quoting Willey, 712 N.E.2d at 441).

[28] In Willey, Willey was a suspect in the police investigation of his ex-wife's murder. The police questioned Willey's friend, who was an alleged accomplice. When the police attempted to speak with him a second time, Willey's friend killed himself. The police questioned Willey, and during that questioning, falsely told Willey that his friend had implicated Willey in Willey's ex-wife's murder. Based on this fact, Willey agreed to take a polygraph exam and signed a polygraph stipulation.

[29] On appeal, Willey challenged the admission of the polygraph evidence. Our Indiana Supreme Court held that “[i]n order for this evidence to be admissible, it must be agreed to in unambiguous terms and the stipulation agreement, like any other contract, must not be the product of misrepresentation or mistake of fact.” Id. Ultimately, our Indiana Supreme Court found the admission of the polygraph evidence to be harmless. Id. at 442.

[30] The facts before us are distinguishable. Here, unlike in Willey, the polygraph examiner's statements that Sanders challenges were made to him after he had already signed the polygraph stipulations and polygraph waiver. Indeed, Sanders admitted to this fact at trial. Thus, Sanders’ polygraph stipulation was not a product of misrepresentation or mistake of fact. We again note that the prerequisites for the admission of polygraph evidence set forth in our case law were met here, and the trial court did not abuse its discretion.

[31] We further note that, even if the trial court had abused its discretion by admitting evidence related to Sanders’ polygraph exam, we find any such error to be harmless. “[T]he admission of polygraph evidence is subject to harmless error analysis.” Majors v. State, 773 N.E.2d 231, 239 (Ind. 2002). Under Indiana Appellate Rule 66(A), an error is harmless “where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” Under this probable impact test, Sanders bears the burden of demonstrating how “the error's probable impact undermines confidence in the outcome of the proceeding below.” Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), reh'g denied, cert. denied. In determining whether Sanders has met his burden, we consider the likely impact of improperly admitted evidence on a reasonable, average factfinder considering all evidence in the case. See id. If substantial independent evidence of guilt exists and our confidence in the outcome is not undermined, the error is harmless. Id.

[32] Here, the polygraph examiner's testimony regarding the polygraph results does not undermine the outcome of the case. First, D.A. unequivocally testified at trial that Sanders had touched her vagina. Specifically, D.A. testified that, on the night of the incident, she had fallen asleep and had “woke[n] up” because Sanders had “started touching” her on her “private part.” (Tr. at 19). D.A. further testified that Sanders had placed his hand underneath her clothing and had moved his hand “in [a] circular motion” on her clitoris. (Tr. at 20). Second, D.A.’s child advocacy center interview, during which she had disclosed that Sanders had touched her vagina, was admitted into evidence and published to the jury. Third, the nurse examiner testified that D.A. had told her during the forensic exam that Sanders had touched D.A.’s vagina. Thus, D.A. consistently testified and told others during her child advocacy center interview and forensic exam that Sanders had touched her vagina.

[33] Further, the trial court admonished the jury with a cautionary instruction regarding the polygraph evidence. Given D.A.’s testimony and the trial court's admonishment, the impact of the polygraph evidence does not undermine our confidence in the outcome of the case. Therefore, we hold that any error in the admission of the polygraph exam results was harmless. See Hovenden v. State, 721 N.E.2d 1267, 1272 (Ind. Ct. App. 1999) (holding that the admission of polygraph evidence was harmless because there was substantial evidence of guilt presented to the jury, including the fact that the victim's “testimony at trial and her statement to the police” were substantially identical), reh'g denied, trans. denied. See also Majors, 773 N.E.2d at 239 (holding that, viewing the evidence as a whole, the polygraph evidence likely had little effect on the jury and any error in its admission was harmless).

[34] Affirmed.

FOOTNOTES

1.   Indiana Code § 35-42-4-3.

2.   Because we have determined that Sanders had been informed of his right to counsel and had waived that right, we need not address when his right to counsel attached.

3.   To the extent that Sanders argues that the detective “induce[d] him to take” a polygraph exam by making statements during the police interview about Sanders’ DNA potentially being found on D.A., we find any such argument to be waived. Sanders did not make any such objection to the polygraph evidence based on this argument at trial, and thus, has waived any such argument on appeal. See Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018) (“To preserve a claim for review, counsel must object to the trial court's ruling and state the reasons for that objection.”). Waiver notwithstanding, our review of the video-recorded police interview reveals no inducement. Indeed, the detective asked Sanders the hypothetical question “would there be any reason why your DNA would be anywhere on her private area?” (State's Ex. 5).

Pyle, Judge.

Bradford, J., and Kenworthy, J., concur.