                                                      RENDERED : APRIL 22, 2010
                                                                     U"ISI-ZD

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                                2008-SC-000920-MR


 HERBERT EADES
                                                        DATE S-r3-to -               D,C
                                                                        APPELLA
                                                                             - i;~



                      ON APPEAL FROM OHIO CIRCUIT COURT
 V                   HONORABLE RONNIE C . DORTCH, JUDGE
                                NO . 07-CR-00060



 COMMONWEALTH OF KENTUCKY                                                APPELLEE



                    MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING


       Appellant Herbert Eades appeals his conviction for three counts of first-

degree sodomy, and one count of first-degree sexual abuse . Appellant received

a life sentence on each of the sodomy convictions and a sentence of five years'

imprisonment for the sex abuse conviction . The court ordered that the

sentences run concurrently for a total of life imprisonment. Appellant appeals

to this Court as a matter of right' and raises two assignments of error: (1) that

the trial court erred in allowing testimony suggesting prior sexual abuse of

children ; and (2) that the trial court erred in failing to conduct an in camera

review of the victim's mental health records .



 Ky. Constitution F 110 .
       The charges against Appellant were made by J .M ., a boy who was eight

 years old at the time of the incidents and ten years old at the time of trial .

 Appellant was a friend of J .M .'s family. In the summer of 2006, Appellant

 asked J .M .'s mother if J .M . could help him with some yard work at his house

 in Beaver Dam, Kentucky . J .M . stayed overnight at Appellant's house on two

 occasions with Appellant and Appellant's girlfriend Dana Gould.

       J .M . testified that, on the second visit, he and Appellant drove to get ice

cream in Appellant's truck, but Appellant first took him to a wooded area .

Once there, Appellant told J .M . to put on a pair of shorts that he had in the

truck, and they moved to the camper in the back of the truck. According to

J.M ., Appellant then removed the shorts and placed his mouth on J .M .'s penis .

He then turned J .M . over and placed his tongue in J .M .'s rectum . Then, he

turned J.M . back over to once again place his mouth on J.M.'s penis .

      J .M . also testified that, one night when he and Appellant were alone in

Appellant's living room, Appellant licked J .M .'s leg. These two incidents formed

the basis for Appellant's conviction for three counts of first-degree sodomy and

one count of sexual abuse . Appellant now appeals from those convictions.

                    ALLEGED PRIOR BAD ACTS EVIDENCE

      Prior to trial, Appellant filed a motion to suppress evidence of his prior

convictions and prior bad acts . More specifically, Appellant wanted to exclude

evidence of his conviction for numerous sexual offenses involving a young boy,

including first-degree sodomy, in 1989 . The court ruled the evidence of
 Appellant's prior sexual abuse convictions inadmissible because the probative

 value of such evidence was substantially outweighed by the danger of undue

 prejudice.

       At trial, when cross-examining Appellant's girlfriend Dana Gould, the

Commonwealth asked about statements she had made to the investigating

detective . The prosecutor asked, "Isn't it true that you told Detective Jones

that you made a point not to let [Appellant] alone with children?" Gould

answered yes . The Commonwealth then asked, "Is it also true that [Appellant]

made a point not to be alone with children?" Gould again answered yes.

      Appellant testified in his own defense, denying any abuse. On cross-

examination, the prosecutor asked, "And actually you made a point yourself to

stay away from eight-year-old boys, didn't you?" Appellant answered yes . The

trial court permitted these questions over Appellant's objection, but did not

permit any specific mention of Appellant's prior bad acts.

      On appeal, Appellant contends it was error to allow these questions,

because they were highly suggestive of a predisposition to sexual abuse and

were merely an attempt to circumvent the prohibitions of KRE 404(b), which

states that "[e]vidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity

therewith ." We review a trial court's evidentiary rulings for an abuse of

discretion, Anderson v. Commonwealth, 231 S .W.3d 117, 119 (Ky. 2007) (citing

Woodard v. Commonwealth, 147 S .W.3d 63 (Ky. 2004)), i.e. "whether the trial
 judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound

 legal principles." Goodyear Tire & Rubber Co . v. Thompson, 11 S .W .3d 575, 581

 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)) .

       First, we note that not wanting to be alone with children is not illegal or

 immoral, and thus is not "bad acts" evidence by itself. There is no doubt that

 the jury could only speculate as to why Appellant was not left alone with

 children . However, the questions by the prosecutor were aimed more at

 pointing out the inconsistency of Appellant not wanting to be alone with

 children, and yet choosing to be alone with J.M. The questions were asked in

isolation, without reference to any specific bad acts by Appellant .

       And viewed in context with the prosecutor's other questions, these

isolated questions were not particularly persuasive with respect to Appellant's

guilt or innocence . After reviewing the complete cross-examination of Gould

and Appellant, we "can say with fair assurance that the judgment was not

substantially swayed" by the questions at issue . Winstead v. Commonwealth,

283 S.W .3d 678, 689 (Ky. 2009) (citing   Kotteakos v. United States,   328 U.S .

750 (1946)) . Therefore, the error, if any, was harmless .

   DENIAL OF MOTION FOR IN CAMERA REVIEW OF VICTIM'S MENTAL
                       HEALTH RECORDS

      Prior to trial, Appellant filed a motion requesting the production of, and

an in camera review of, J .M .'s mental health records. The motion contended

that J.M . was being seen by both a psychiatrist and a psychologist, and was on
medication . The motion also contended that J .M .'s mother had taken him to

see his psychiatrist, because she had doubts as to whether J .M . was telling the

truth about the alleged sexual abuse.

       Appellant's motion requested the court conduct an in camera inspection

of the mental health records for exculpatory or impeachment material . The

trial court heard the motion on August 19, 2008, after the jury was selected .

The trial court denied the motion, agreeing with the Commonwealth that the

request was a "fishing expedition," and stating that there must be a reasonable

expectation that the files would produce exculpatory evidence .

       On appeal, Appellant contends that he met the preliminary showing of

evidence sufficient to establish a reasonable belief that the records contain

exculpatory evidence to request the court review those records .

             Only upon a preliminary showing of "evidence
             sufficient to establish a reasonable belief that the
             records contain exculpatory evidence" are a witness's
             psychotherapy records subject to production . And
             even at that point, the production is limited to an in
             camera inspection by the trial court to determine
             whether the records, in fact, contain exculpatory
             evidence, including that relevant to the witness's
             credibility.

Richardson v. Commonwealth, 161 S .W.3d 327, 329 (Ky. 2005) (quoting

Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky 2003)) (internal citation

and footnote omitted) .

             Factors a court should consider in allowing such
             evidence are the nature of the psychological problem,
             the temporal recency or remoteness of the condition,
             and whether the witness suffered from the condition at
              the time of the events to which she is to testify. For
              example, a. mental illness that causes hallucinations
              or delusions is generally more probative of credibility
              than a condition causing only depression, irritability,
              impulsivity, or anxiety.

 Barroso, 122 S .W.3d at 562-63 (quoting People v. Anderson, 22 P.3d 347, 391

 (Cal . 2001) (Kennard, J ., concurring)) .

       Here, Appellant failed to make the preliminary showing necessary to

trigger an in camera review of J.M.'s mental health records. Appellant's motion

simply asserted that J.M .'s mother took him to a psychiatrist because she was

unsure he was telling the truth. We recognize that it may be difficult for

someone in Appellant's position to formulate a reasonable belief without first

seeing the contents of the mental health records. However, without a

preliminary showing of some articulable evidence, the inquiry is simply a

"fishing expedition." Therefore, the trial court did not err in denying

Appellant's motion for an in camera inspection of J .M .'s mental health records .

       For the forgoing reasons, the judgment and sentence of the Ohio Circuit

Court is hereby affirmed .

      All sitting . All concur.
COUNSEL FOR APPELLANT:

Shelly R . Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1133


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Michael John Marsch
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, KY 40601
