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. 
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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 
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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). 
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 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 
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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.