dissenting.
I respectfully dissent from the majority opinion because I believe the closing argument by the prosecutor was not unduly prejudicial or unfair and that the decision of the trial judge to deny the motion by the defendant to have the victim examined by a defense psychiatrist was not reversible error.
In reviewing the contention that the prosecutor’s closing argument amounted to reversible error, we must remember that although Mack denied committing the acts with which he was charged, he had been previously convicted in 1983 of first-degree sodomy, first-degree sexual abuse, two counts of second-degree sexual abuse, third-degree sodomy, second-degree sodomy, third-degree sexual abuse and attempted first-degree rape. In regard to that conviction, Mack testified in this case that he had a strong need to be punished in a sexual manner and that he satisfied that need by engaging in a pattern of sexual activities with a number of young girls. He had been convicted of engaging in *279sexual activity from 1979 through 1983 with two step granddaughters who were then ages 10 and 12. After he was released from prison, Mack gained the trust of a new step granddaughter, and engaged in the same type of sexual acts as were the basis of his previous convictions. The prosecution’s theory of the case was that at the time of his arrest, Mack was beginning to enter into the same type of relationship with two young girls who were the children of his niece. It should be noted that the children’s mother testified that she was aware of the earlier convictions but was not concerned about her daughters visiting Mack.
Considering all the circumstances surrounding the facts and the pattern of activity involved, the comment by the prosecutor was not unduly prejudicial and was a fair comment on the evidence of what Mack had stated in his own testimony.
In addition, the statement by the prosecutor about the credibility of the child/victim was not improper. The defense was that the victim was lying. The prosecution was simply asking the jury to use common sense in considering the credibility of the child/victim. In order to be reversible error, prosecutorial misconduct must be so serious as to render the entire trial fundamentally unfair. Summitt v. Bordenkircher, 608 F.2d 247 (6th Cir.1979). The comments of the prosecutor here did not deprive Mack of a fair trial. The statements were not improper or prejudicial to the extent that they require the setting aside of the jury verdict. Jones v. Commonwealth, Ky. 281 S.W.2d 920 (1955); Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The statements of the prosecutor were based on the evidence and did not go beyond the bounds permitted in closing argument. White v. Commonwealth, Ky.App., 611 S.W.2d 529 (1980). Mack received a fundamentally fair trial.
The trial judge did not commit reversible error or abuse his discretion in denying the request by Mack to have the victim examined by his own psychiatrist.
Civil Rule 35.01 expressly provides that when the mental or physical condition of a party (emphasis added) is in controversy, the trial court may order the party to submit to an examination by a physician. In this case, the trial judge determined that the child/victim was not a party within the meaning of CR 35.01. It should be obvious that this kind of case is brought in the name of the Commonwealth of Kentucky and not the victim. Thus the victim was not a party to the action and the rule is not applicable. Consequently, there was no reversible error or abuse of discretion.
Here, the victim was admitted to the hospital on August 19,1988 and was not released until February 3, 1989. The victim testified that Mack began to sexually abuse her in 1989 and continued until July, 1990, when she reported it to her stepmother. Mack was given the records of the victim from the hospital and took the deposition of the victim’s treating physician. He sought to introduce the favorable testimony of the doctor. To have testimony from a second examining physician would merely be redundant and cumulative.
Moreover, Mack was provided with the opportunity to question the victim during her competency hearing which was held prior to trial. At that hearing, the trial judge found the victim competent to testify and an examination of her trial testimony indicates a clear recollection of the abuse. In addition, the defense had the opportunity to cross-examine the child/victim.
Under all the circumstances present here, the balancing test noted by the majority opinion in Turner v. Commonwealth, Ky., 767 S.W.2d 557 (1989), would certainly militate against an additional medical expert.
The authority to order a psychiatric or psychological examination to determine competency rests in the sound discretion of the trial judge. I find no clear cut constitutional requirement for a mental examination of the complaining child/victim in a sex offense prosecution. In this case, under any standard, there was no abuse of discretion.
For a review of cases from other jurisdictions relating to the subject of victim competency testing in sex offense prosecutions see 46 A.L.R.4th 310, Anno. Necessity or permissibility of mental examinations to determine *280competency or credibility of complainant in sexual offense prosecutions. P.310.
I would affirm the conviction in all respects.
REYNOLDS and SPAIN, JJ., join in this dissent.