                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia


BONNELL B. BOYD
                                       MEMORANDUM OPINION * BY
v.   Record No. 2038-97-3           JUDGE RUDOLPH BUMGARDNER, III
                                          DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRY COUNTY
                    David V. Williams, Judge
          Steven D. Benjamin (Betty Layne DesPortes;
          Benjamin & DesPortes, P.C., on briefs), for
          appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Eugene Murphy, Assistant Attorney General, on
          brief), for appellee.



     A jury convicted Bonnell B. Boyd of two counts of statutory

rape and one count of object sexual penetration.   He appeals four

rulings by the trial court:   (1) it denied him access to the

victim's psychiatric records; (2) it directed the Commonwealth to

review those records for exculpatory evidence; (3) it instructed

the jury they were not to consider parole in fixing punishment;

and (4) it denied his motion to set aside the verdict.    Finding

no error, we affirm the convictions.

     The testimony comes primarily from the victim who was

thirteen years old.   She recounted the incidents which occurred

in July, September, and October 1995.   On each occasion the

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
victim was staying at a hotel with her step-grandfather, the

defendant.    On the second occasion she was with her sister, and

on the third she was with a teenage boyfriend.    The victim

testified that the first two times the defendant made sexual

advances towards her and then had sexual intercourse with her.

On the third occasion, the defendant tried to make her first have

sex with her friend and then with him.    She refused, but later in

the evening while sleeping in the same bed with the defendant, he

inserted his finger into her vagina.
        The teenage friend recalled the night he and the victim

spent the night with the defendant in his hotel room.    The friend

recalled many of the details of what happened between the victim

and her step-grandfather and these tended to corroborate the

victim's account.    However, the friend neither confirmed nor

refuted whether the sexual act took place.

        The victim received treatment as a patient at DeJarnette's

Center which is an agency of the Department of Mental

Health/Mental Retardation.    The defendant obtained a subpoena

duces tecum for the victim's mental health records pursuant to

Rule 3A:12(b).    The trial court ordered the records returned to

the court rather than delivered to the attorneys.    After the

trial court had reviewed all the subpoenaed records in camera, it

held a hearing to determine whether the defendant was entitled to

them.    The defendant gave the following reasons to justify his

need to have the records:
          It may lend some -- shed some light on what



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           her motivation was. There are times that the
           story that she has told just seems down right
           fabricated and if her mental evaluation could
           show that possibly she is, and this is just
           an example because I don't know what is in
           there, but it would show that, you know, that
           she had a problem telling the truth or that
           she used some type of hallucinogenic drugs
           that may affect her ability to tell the
           truth; then that is relevant and material to
           the defense in this case.


     The trial court ruled that the records were not exculpatory

and were psychiatric in nature.    It noted that there was no

evidence "that would indicate that [the victim] was unable to

see, understand, perception type issues with the exception of,

perhaps, this marijuana deal."    The court added that had there

been any suggestion that the victim was a fabricator, delusional,

or "believing things happened that didn't actually happen or that

type of thing," the records would have been released.   It noted

that the defendant was informed about the victim's admission to

having tried marijuana.    The trial court further advised that it

would keep the file open and if developments during trial showed

that any of the records had become material, he would alter his

ruling.   The defendant never renewed the motion or asserted an

additional reason for obtaining access to the documents.
     The defendant argues the trial court applied the wrong

standard for discovery of the records when it ruled that the

records were not exculpatory.    While the trial court did rule the

records were not exculpatory, it also ruled they were not

material to the defense.




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     A defendant is entitled to subpoena records when the

evidence sought is material or if a substantial basis for

claiming materiality exists.   See Cox v. Commonwealth, 227 Va.

324, 328, 315 S.E.2d 228, 230 (1984).    "A subpoena duces tecum

should not be used when it is not intended to produce evidentiary

materials but is intended as a 'fishing expedition' in the hope

of uncovering information material to the defendant's case."

Farish v. Commonwealth, 2 Va. App. 627, 630, 346 S.E.2d 736, 738

(1986) (citation omitted).   Here, as in Farish, the defendant
failed to establish that the records were material to the defense

or that a substantial basis for claiming materiality exists.

     The defendant asserts that the records were material because

they would permit an attack on the victim's credibility.    He

argued at trial that the records "may shed some light on what her

motivation was"; they "could show that possibly" she had trouble

telling the truth; or they may show she used some sort of

hallucinogenic drugs "that may affect her ability to tell the

truth."   The defendant conceded, "I don't know what is in there."

The defendant acknowledges, in effect, that he was

investigating, exploring possibilities; he was engaging in a

fishing expedition.   Before he can satisfy the public policy

concerns against allowing a defendant to bring out potentially

embarrassing and unrelated details of the victim's personal life,

the defendant must demonstrate that the records were material.

Here, the proffer did not do this.     To the contrary, the proffer



                               - 4 -
showed the defendant wanted access to the records in the hope of

uncovering information material to his case.     See id.     Showing

substantial materiality may be a difficult burden because the

defendant does not know the content of that which he seeks to

discover.   However, the law imposes this burden before ordering

the release of private, confidential records.

     Here, the defendant theorized that the victim had problems

telling the truth and might fabricate stories.     Unless he has a

substantial basis for claiming materiality exists, his claim for

access to the victim's psychiatric records is based on the

assumption that any record of mental health treatment lessens

credibility.   That is not correct.    Psychiatric records

concerning mental health issues are not always material to the

credibility of a witness.   Absent a representation that the

particular records do contain such evidence, the defendant has

not shown that he is entitled to personal, confidential records.

Finding that the defendant failed to show that the records were

material, we affirm the trial court's ruling.
     Next, the defendant claims that the trial court violated his

constitutional rights by ordering the Commonwealth to review the

psychiatric records to see if they contained exculpatory

evidence.   The defendant never objected to this ruling until

after the trial.   His objection comes too late.    See Rule 5A:18;

Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996),
cert. denied, 117 S. Ct. 1724 (1997).




                               - 5 -
     During the sentencing deliberations the jury asked whether

the sentences would run concurrently and "how does parole fit

into this?"   The court responded to the juror's question in open

court as follows:   "Parole is a matter for the parole board and I

can't really tell you what effect that may or may not have on the

situation.    I wish I could tell you more but legally that's all I

can tell you."   The defendant contends that the instruction was

incorrect.
     Before answering the jury's question the trial court said,

"and Counsel, help me if I misstate anything."   The defendant

remained silent and made no objection to the instruction as it

was given.    The defendant now argues that he failed to object

because he had no time during the court's statement to the jury

even though invited by the judge to do so.   The claim is barred

by Rule 5A:18.

     Finally, the defendant alleges that the trial court erred in

denying his motion to set aside the verdict and grant a new

trial.   We find that there was sufficient evidence to support the

verdict.   Accordingly, we find no error in the court's refusal to

grant defendant's motion.

     When considering the sufficiency of the evidence on appeal,

we consider the evidence in the light most favorable to the

Commonwealth with all reasonable inferences fairly deducible

therefrom.    See Higginbotham v. Commonwealth, 216 Va. 349, 352,

218 S.E.2d 534, 537 (1975).   A trial court's judgment will not be



                                - 6 -
disturbed on appeal unless it is plainly wrong or without

evidence to support it.    See Code § 8.01-680; Stockton v.

Commonwealth, 227 Va. 124, 145-46, 314 S.E.2d 371, 381 (1984),

cert. denied, 489 U.S. 1071 (1989).

     The victim's testimony furnished proof on each element of

each offense.    If believed, it would constitute proof beyond a

reasonable doubt.   This trial was a trial of credibility as was

acknowledged by the defendant during oral argument.   The verdict

reflects that the jury found the victim to be credible.
     The credibility of witnesses and the weight to be accorded

their testimony are matters solely for the fact finder, who has

the opportunity to see and hear the witnesses, to observe their

demeanor, and to weigh their explanation of events.    See

Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,

736-37 (1985).   The fact finder's determination that a witness is

credible "may only be disturbed on appeal if this Court finds

that [the witness'] testimony was 'inherently incredible, or so

contrary to human experience as to render it unworthy of

belief.'"   Robertson v. Commonwealth, 12 Va. App. 854, 858, 406

S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth, 228 Va.

296, 299-300, 321 S.E.2d 202, 204 (1984)).

     For the foregoing reasons, we affirm the trial court's

rulings.

                                                             Affirmed.




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