2010-313 The State of New Hampshire v. Christopher S. Guay

After a jury trial in Superior Court (Vaughan

Dorothy E. Graham

___________________________

We affirm in part, reverse in part, and remand. (3) denying him access to all of the victim’s medical and counseling records. request for a mistrial; (2) failing to dismiss one of the three AFSA counts; and On appeal, he argues that the trial court erred by: (1) failing to grant his of felonious sexual assault (FSA), see RSA 632-A:3, III (2007 & Supp. 2010). felonious sexual assault (AFSA), see RSA 632-A:2 (Supp. 2010), and one count defendant, Christopher S. Guay, was convicted of three counts of aggravated

brief and orally, for the defendant.

THE SUPREME COURT OF NEW HAMPSHIRE

general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as charged with three counts of AFSA and two counts of FSA. p. 2 then to her mother, K.G., who called the police. The defendant was later on inside out. J.G. eventually disclosed the assaults to her best friend and saw J.G. as she came out of the bathroom and remarked that her pants were her pants on, went to the bathroom, and saw that she was bleeding. Jason T. had “wet stuff all over it,” and that some of it was also on her body. J.G. put Shortly after the assault on the night of April 26, J.G. noted that the bed

defendant respond to J.G., “No, why would I be mad?” the loft and asking the defendant if he was mad at her. Jason T. heard the awakened in the night by the sound of J.G. “apologizing” to the defendant in down.” Jason T., who had been sleeping in the downstairs area with J.T., was defendant then put his penis in J.G.’s vagina and moved his body “up and been removed and that the defendant’s fingers were in her vagina. The She awoke to find the defendant on top of her. J.G. realized that her pants had On the following night, April 26, J.G. again slept in the single loft bed.

because he would go to jail. breasts that night, and told her not to tell her mother what he had done to feel the defendant touching her vagina. The defendant also touched J.G.’s went up into the loft and told his daughter, J.G., to go to bed. J.G. later awoke the defendant and Jason T. were drinking beer. At some point, the defendant The defendant, Jason T., and his son, J.T., were in the downstairs area, and the loft bunks and then got into the single bed in the loft to watch television. On the evening of April 25, J.G. put her half-sister, J., to bed in one of

room. of bunk beds. The loft area was not visible from the downstairs portion of the kitchen, bathroom, and pull-out bed, and a loft area with a single bed and a set hotel room in which the group stayed consisted of a downstairs area, with a overnight trip to Lincoln with the victim, J.G., and the other two children. The Over the weekend of April 25-27, 2008, the defendant and Jason T. took an During the defendant’s marriage to H., he and Jason T. became friends.

or April 2008. defendant and H. had a daughter, J. The defendant and H. separated in March 2004 to H., who had one son, J.T., from a prior marriage to Jason T. The weekend and Wednesdays with the defendant. The defendant remarried in the defendant and K.G. divorced in March 2002, J.G. spent every other October 15, 1997, is the biological daughter of the defendant and K.G. After The jury could have found the following facts. The victim, J.G., born on

I. Facts assaults and also heard the defendant deny the charges. Given the conflicting p. 3 jury heard J.G. testify that the defendant committed the charged sexual presented by the outburst required the trial court to declare a mistrial. The J.G.’s outburst, we are not persuaded that the “inadmissible evidence” In light of the testimony given by both J.G. and the defendant prior to

constituted an irreparable injustice that cannot be cured by jury instructions.” complained of was not merely improper, but also so prejudicial that it

“Mistrial is the proper remedy only if the evidence or comment

case. We disagree. instruction could have cured the prejudice that the outburst caused to his “infuse[d] sympathy” for J.G. and “hostility” for him, and that, consequently, no further argues that the outburst “overshadowed” the impact of his testimony, direct examination” – namely, that the defendant was a liar. The defendant inadmissible information that she did not, and could not, present during her Here, the defendant argues that J.G.’s outburst “exposed the jury to

count of FSA. This appeal followed. jury. The jury found the defendant guilty on all three counts of AFSA and one defendant’s request for a mistrial but twice issued curative instructions to the of the courtroom, “You’re such a freakin’ liar.” The trial court denied the accusations against him was “heartbreaking,” J.G. shouted out from the back during his testimony. defendant’s testimony, immediately after he stated that listening to J.G.’s Ainsworth, 151 N.H. 691, 698 (2005). request for a mistrial following J.G.’s emotional outburst in the courtroom action is necessary absent an unsustainable exercise of discretion.” State v. At trial, the defendant testified in his own defense. During the not overturn the trial court’s decision on whether a mistrial or other remedial The defendant first argues that the trial court erred when it denied his and has broad discretion to decide whether a mistrial is appropriate. We will is in the best position to gauge the prejudicial nature of the conduct at issue trial court’s ruling on a motion for a mistrial, we “recognize that the trial court , 160 N.H. 11, 15 (2010) (quotation omitted). When reviewing a

the remainder should not be disclosed. court issued an order releasing some of them to counsel, but concluding that records should be released to counsel. After reviewing the records, the trial the court could review the requested records in camera and determine which medical and counseling records. The State objected in part, but agreed that Prior to trial, the defendant requested that the State produce J.G.’s p. 4 III. Sufficiency of the Evidence

exercised its discretion by declining to declare a mistrial after J.G.’s outburst. Based upon the record, we conclude that the trial court sustainably

the State’s case, it denied his motion to dismiss for insufficient evidence of The defendant next argues that the trial court erred when, at the close of

State v. Benoit Jurors are presumed to follow the court’s instructions. See the like will not be disturbed. mistrial because of a complaining witness’ outbursts, outcries and

impartially decide this case,” to which not one juror responded affirmatively. is clearly shown to have been abused, his refusal to grant a discrediting her in the eyes of the jury”). jury collectively whether J.G.’s outburst would “affect [anyone’s] ability to judicial discretion, and, except in an instance where that discretion that the “outburst could redound against the victim and have the effect of testimony under oath of the witnesses.” Additionally, the trial court asked the under established case law rests largely in a trial justice’s sound trial court’s denial of a motion for mistrial based in part on its determination the jury was “required to decide this case from the facts in evidence and the But whether or not they produce that result is a matter which examination”); Clegg v. State, 655 P.2d 1240, 1241-44 (Wyo. 1982) (upholding courtroom, the trial court issued a second instruction in which it stated that passion and prejudice as to justify taking a case from the jury. version of the events that she had previously testified to upon direct then dismissed the jury from the courtroom. After the jury returned to the of emotion are so frequent and so intense that they produce such motion for mistrial where “victim’s outburst did not add anything new to her sympathies, the trial court immediately instructed the jury to ignore it, and Rodriguez, 856 A.2d 1278, 1287 (Pa. 2004) (upholding trial court’s denial of a Further, although J.G.’s outburst could have appealed to the jury’s , 363 A.2d 207, 213 (R.I. 1976); see also Com. v. Melendez-

It is, of course, true that there are cases where a witness’ displays

Cosme, 157 N.H. 40, 46 (2008).

credibility, was so prejudicial that it was incurable. do not conclude that J.G.’s outburst, reflecting her opinion of the defendant’s that the defendant lied during his testimony. Under these circumstances, we issues are within the jury’s province, and it could reasonably have concluded not believe the defendant to be testifying truthfully. Moreover, credibility testimony, it could hardly have been a surprise to the jury that the victim did insufficient. Our standard for review in this area is well established:

insufficient to prove penetration. We conclude that the evidence was we review the evidence to determine whether it was, as the defendant contends, Turning to the first prong of the plain error test – that there was error –

vagina,” and not “on transcriptionist indicating that J.G.’s answer to this question was actually “my State moved to correct the record and submitted a correction from a certified original transcription of J.G.’s response was “on my vagina.” However, the trial, the prosecutor asked J.G., “And where was he touching you?” The digital penetration. consider errors not raised before the trial court. State v. Matey transcript accurately reflects J.G.’s testimony at trial regarding this charge. At the trial court not to have dismissed the charge for insufficient evidence of error analysis of his argument on appeal. Under the plain error rule, we may We note first that the State has raised a question as to whether the “my vagina,” for the following reasons we conclude that it was plain error for Because the defendant failed to preserve the issue, we conduct a plain argument on appeal.” Assuming, as the State contends, that J.G.’s answer was record to be ‘on my vagina’ or ‘my vagina’ does not significantly alter [his] motion by indicating that “whether this Court interprets the words from the

ground on which it is based in order to preserve the issue for appeal. State v. preserve this issue for appeal. A motion to dismiss must state the specific our plain error rule. Id As a threshold matter, the State contends the defendant failed to. at 489-90. proceedings.” Id. We have looked to federal plain error analysis in applying seriously affect the fairness, integrity or public reputation of judicial plain; (3) the error must affect substantial rights; and (4) the error must omitted). To find plain error: “(1) there must be an error; (2) the error must be otherwise result.” State v. Russell, 1 p. 5 59 N.H. 475, 489 (2009) (quotation its use limited to those circumstances in which a miscarriage of justice would 266 (2006); see Sup. Ct. R. 16-A. “However, the rule should be used sparingly, , 153 N.H. 263,

conclude the defendant failed to preserve this issue for appeal. not that the State had failed to prove digital penetration. Accordingly, we insufficient evidence of his guilt because J.G.’s testimony was “inconsistent,” subject AFSA charge at the close of the State’s case, he argued that there was preserve the issue for appeal). Here, when the defendant moved to dismiss the specify that it was based on statutory interpretation, the defendant failed to for insufficiency of the evidence was “couched in general terms” and did not Dodds, 1 p. 5 59 N.H. 239, 243-44 (2009) (concluding that where motion to dismiss

the first night at the hotel. penetration regarding the AFSA charge that alleged digital penetration during p. 6 A: Touching me.

Q: And when you woke up you said he was doing what?

A: Just PJ pants and a shirt.

Q: And what did you have on for clothes at that point?

A: My vagina.

Q: And what is your lower place?

A: My lower place.

Q: And where was he touching you?

A: Him touching me.

Q: What woke you up?

State v. Young

J.G.’s testimony about this incident was as follows: vagina, but not to establish that he penetrated her vagina with his fingers. the hotel was sufficient only to establish that the defendant touched her In this case, J.G.’s testimony concerning the assault on the first night at inferences, provided they can be reasonably drawn therefrom.

proved and also inferences from facts found as a result of other

(Supp. 2010). actor into genital or anal openings of the victim’s body.” RSA 632-A:1, V(a)(5) Further, the trier may draw reasonable inferences from facts part of the actor’s body, including emissions, or any object manipulated by the sufficient to support a finding of guilty beyond a reasonable doubt. age. “Sexual penetration” is defined as “[a]ny intrusion, however slight, of any penetration with another person when the victim is less than thirteen years of crime of aggravated felonious sexual assault if such person engages in sexual Pursuant to RSA 632-A:2, I, (l) (Supp. 2010), a person is guilty of the

evidence, not in isolation. Circumstantial evidence may be evidence, we examine each evidentiary item in the context of all the

, 159 N.H. 332, 338 (2009) (quotation omitted).

have found guilt beyond a reasonable doubt. In reviewing the viewing the evidence in the light most favorable to the State, could defendant bears the burden of proving that no rational trier of fact, To prevail in a challenge to the sufficiency of the evidence, the p. 7 7

Thus, J.G. was obviously capable of testifying to sexual penetration. Under placed his fingers “in” her vagina, and that he placed his penis in her vagina. contention, the State relies upon the reasoning in State v. Flynn testified that her pants were removed prior to the assault, that the defendant the defendant penetrated J.G.’s vagina with his fingers. In support of this concerning the assault occurring the next night. As to that assault, she was he touching you,” is sufficient to establish, by reasonable inference, that underneath her clothing. This stands in contrast to J.G.’s later testimony The State argues that the response “my vagina” to the question “where pants were removed during the incident or that the defendant’s hands were testified that she was wearing “PJ pants” and there was no testimony that her limited to J.G.’s testimony that the defendant touched her vagina. J.G. Here, the evidence of sexual contact on the first night in the hotel was

testified that she rolled over and went to sleep and “[t]hat’s all that happened.” After testifying that the defendant also touched her breasts that night, J.G. We conclude that the State's reliance upon Flynn

385. slightly, into the victim’s vagina, thereby establishing sexual penetration. Id. at rationally conclude that the defendant used his finger to intrude, however examination of all the facts and circumstances of this case,” one could evidence tending to establish penetration and concluded that “through Further, we noted that the victim’s conflicting testimony did not negate the belonging to the defendant, was found inside the victim’s vagina. Id. at 381. occurred close to the time the defendant ejaculated, and a single sperm, she felt his finger upon her, the victim testified that the sensation she felt The defendant’s own version of events corroborated the victim’s testimony that from which a jury could have reasonably inferred that penetration occurred. A: My vagina. 384 (brackets omitted). There was ample circumstantial evidence, however, during cross-examination, “like a scratch on the outside of her vagina.” Id. at area, but alternately described the pain as occurring “in [her] vagina,” and then 151 N.H. at 380. At trial the victim testified that she felt pain in her genital her knees tilted sideways, separated by the defendant’s right hand.” Flynn, uncomfortable feeling in her genital area” and found she was “on her back with testimony concerning the assault. The victim in Flynn “awoke because of an sufficient evidence of digital penetration even where the victim gave conflicting misplaced, as both are distinguishable. In Flynn, we determined there was and Hillier is

as our statutory definition of “genital openings.” 384-85 (2004), and People v. Hillier, 910 N.E.2d 181 (Ill. App. Ct. 2009), as well

Q: And where was he touching you? p. 8 The interpretation of a statute is a question of law, which we review de

On the contrary, the statute defines penetration as “intrusion touched this body part. definition does not establish that touching the vagina constitutes penetration. penetration may be proven by testimony which asserts only that a defendant Although “vagina” is defined by the statute as a “genital opening,” that that because the vagina is statutorily defined as a “genital opening,” majora, labia minora, vulva, urethra or perineum.” The State appears to argue internal or external genitalia including, but not limited to, the vagina, labia interpretation. RSA 632-A:1, I-b defines the term “genital openings” as “the

Thus, the State was required to prove digital intrusion into J.G.’s vagina. To or anal openings of the victim’s body.” RSA 632-A:1, V(a)(5) (emphases added).

Id. possible, construe that language according to its plain and ordinary meaning. N.H. 462, 465 (2010). We first look to the language of the statute itself, and, if Finally, we address the State’s argument based on statutory expressed in the words of a statute considered as a whole. State v. Thiel, 160 interpretation, we are the final arbiter of the intent of the legislature as novo. State v. Kousounadis, 159 N.H. 413, 423 (2009). In matters of statutory

Hillier. CONST. pt. 1, art. 15. Accordingly, we decline to rely upon the reasoning in finger,” was “my vagina.” Hillier State’s burden to prove the defendant’s guilt beyond a reasonable doubt. N.H. response to the prosecutor’s question “where did [the defendant] place his shifting of the burden onto the defendant to disprove the charged act. It is the defendant was charged with sexual assault and the victim’s testimony, in expressly denies penetration. To do so would arguably effect an impermissible a general rule establishing an inference of penetration except where the victim reasonable inference that penetration occurred. Moreover, we decline to adopt Nor do we find Hillier (Ill. App. Ct. 1992)). Here, there was no evidence that would support a Id. at 184 (quotations omitted) (citing People v. Bell, 600 N.E.2d 902, 906-07 inference is unreasonable only if the victim denies that penetration occurred.” the defendant “rubbed, felt or handled the victim’s vagina,” and that “[s]uch an own case law establishing that a jury may reasonably infer penetration where this response was sufficient to prove penetration, the Hillier court relied on its , 910 N.E.2d at 183-85. In concluding that

challenge to the sufficiency of the evidence was unsuccessful where the supportive of the State’s position. In Hillier, a

his fingers during the first incident. establish, beyond a reasonable doubt, that the defendant penetrated her with these circumstances, we cannot conclude that her testimony was sufficient to p. 9 9 IV. Request for In Camera Review of Records

Here, after the trial court conducted its in camera

trial court deemed not to be essential and reasonably necessary to the defense conviction on this charge is, accordingly, reversed. reasonably necessary to the defense. Those portions of the records that the affect the fairness and integrity of judicial proceedings. The defendant’s disclosure of those portions of the records that it deemed were essential and evidence of guilt, to allow the defendant’s conviction to stand would seriously Finally, because the defendant was convicted based upon insufficient review, it ordered

necessary to the defense at trial.” Id. to see if the file actually contains information that is “essential and reasonably Finally, the defendant requests that we conduct an in camera showing, then the trial court must review the requested information in camera will be explained by the information sought.” Id. If the defendant makes this concern, based on more than bare conjecture, that, in reasonable probability, to his defense.” Id. “At a minimum, a defendant must present some specific to “meaningfully articulate how the information sought is relevant and material “threshold showing ... is not unduly high.” Id. It only requires the defendant Sargent, 148 N.H. 571, 573 (2002) (quotation and citation omitted). This information that is material and relevant to his stated defense. State v. defendant must first show a reasonable probability that the records contain court to conduct an in camera review of the victim’s confidential records, the the confidential records reviewed in camera by the trial court. For the trial synonymous with clear or, equivalently, obvious.” United States v. Olano review of charge. See Our next consideration is whether the error was plain. “Plain is dismiss the charge at the close of the evidence led to his conviction on the affected the defendant’s substantial rights because the trial court’s failure to As to the third prong of the plain error test, we conclude that the error

the proceeding.”). demonstrate that the error was prejudicial, i.e., that it affected the outcome of of demonstrating that an error affected substantial rights, the defendant must State v. Lopez, 156 N.H. 416, 425 (2007) (“[T]o satisfy the burden

burden of proof and the charge should not have been submitted to the jury. RSA 632-A:2. Under these circumstances, the State could not have met its sexual penetration, an element of the charged crime, as defined by statute. See was plain. As discussed above, the evidence was insufficient to establish U.S. 725, 734 (1 p. 9 993) (quotations omitted). We conclude that the error here , 507

statute the definition of “penetration.” interpret the statute as urged by the State would, in effect, eliminate from the privileged materials to a criminal defendant in State v. Farrow

p. 10 We first used the phrase to describe the standard for disclosure of

found to be essential and reasonably necessary to permit counsel the defendant’s right is limited to the use of such materials as are

must be disclosed to the defense for use at trial. privileged materials, such as counseling records of the alleged crime victim, and reasonably necessary” as the standard for determining whether otherwise troubled me for some time, that being our repeated use of the phrase “essential opinion in this case. I write separately, however, to address an issue that has LYNN, J., concurring specially. I join fully in the majority’s thoughtful

witnesses from unnecessary embarrassment the trial court should unreliability or bias. To prevent abuse and to protect the adequately to cross-examine for the purpose of showing

Affirmed in part; reversed in privileged information,” we held that 415 U.S. 308 (1974), gave the criminal defendant “a right to the blanket use of proposition that the United States Supreme Court’s opinion in Davis v. Alaska, examination and impeachment.” Farrow, 116 N.H. at 733. After rejecting the scope of [doctor/psychologist patient] privileges for the purpose of crossentitle[d] him to have access to and to use information which falls within the extent to which,] the defendant’s sixth amendment right to confrontation concurred specially. 733 (1976). In Farrow, we were “faced with the question whether[, and the DALIANIS, C.J., and DUGGAN and HICKS, JJ., concurred; LYNN, J.,, 116 N.H. 731,

standard. State v. Amirault the admissibility of evidence under an unsustainable exercise of discretion We review a trial court’s decisions on the management of discovery and

See determining which of the victim’s confidential records would not be disclosed. conclude that the trial court unsustainably exercised its discretion in After review of all the records reviewed by the trial court, we do not

part; and remanded.

disclosure order. Sargent, 148 N.H. at 574. Accordingly, we find no error in the trial court’s

clearly untenable or unreasonable to the prejudice of his case. Id. standard, a defendant must demonstrate that the trial court’s rulings were

the sealed records were not subject to disclosure. defendant now argues that the trial court may have erred in determining that remained sealed by the trial court and were not disclosed to counsel. The p. 11 11

N.H. 741 (1995); State v. Taylor, 139 N.H. 96 (1994). Pandolfi, 145 N.H. 508 (2000); State v. Puzzanghera, 140 N.H. 105 (1995); State v. Locke, 139 1 In addition to the above cited cases, see generally State v. Gaffney, 147 N.H. 550 (2002); State v. Most recently, in Petition of State of New Hampshire (State v.

whether we intended this language to describe a burden the same as, or in and whether a compelling justification exists for disclosure), it is not clear relates to whether the targeted information is unavailable from another source for the information contained in the privileged records, see id. (“essential need” to the burden of the party seeking disclosure to establish an “essential need” review to ascertain what, if any, records should be disclosed. While we referred In State v. Gagne medical and mental health records, without first conducting an in camera court erred by granting the State and the defense access to the alleged victim’s MacDonald), 162 N.H. __, __ (decided May 17, 20 p. 11 11), we held that the trial

defense use at trial. But see Sargent, 148 N.H. at 573-74. 1 camera review, rather than a decision on the disclosure of the information for and large, involved the trial court’s decision to deny a defense request for in defendant’s ability to access another’s privileged or confidential materials, by perhaps because post-Gagne, the cases before us that related to a criminal However, we have never elaborated upon or explained what this phrase means, Hoag, 145 N.H. 47, 50 (2000); State v. Graham, 142 N.H. 357, 364 (1997). 148 N.H. 571, 573 (2002); State v. McLellan, 146 N.H. 108, p. 11 113 (2001); State v. e.g., State v. Eaton, 162 N.H. __, __ (decided June 28, 2011); State v. Sargent, another’s privileged or confidential materials, including today’s decision. See, more or less routinely in numerous cases involving a defense request for repeated the phrase “essential and reasonably necessary to the defense at trial” standard developed in Farrow. See Gagne, 136 N.H. at 104. We have since the second issue that we ascribed the “essential and reasonably necessary” Id trial court, and access to the information for use at trial. It is with regard to privileged information: how the defendant can obtain in camera review by the distinct, yet intertwined, issues involved when a defendant desires to obtain

considered essential”). absolute and must yield when disclosure of the information concerned is Farrow when stating “the [physician/psychologist patient] privileges are not essential to the defense”); State v. Kupchun, p. 11 117 N.H. 412, 415 (1977) (citing communications, in part, because “use of the privileged information was not that trial court properly refused to permit disclosure of privileged . (emphasis added); see State v. Thresher, 122 N.H. 63, 72 (1982) (holding

to use. and determine what parts, if any, the defendant will be permitted examine with counsel the records and other materials in question p. 12 12

that we should adopt a clear standard “reasonably necessary,” if that is appropriate. The critical point, in my view, is distinguishing the meaning and application of each term, “essential” and reasonably necessary) as the one that should govern this issue, or to I would be open to considering adoption of either standard (essential or 2 I do not profess to be immune from this affliction.

“reasonably an appropriate case. the defense, the converse is not true: there may be some information that is an area of the law that merits clarification as soon as the issue is presented in information that is “essential” to the defense is also “reasonably necessary” to court’s opinion understandably does not address it. However, I believe this is gives it a more expansive meaning than “essential.” Hence, while all and trial judges. Because this issue is not raised in the present case, the becomes more substantive, for this word modifies “necessary” in a way that for the guidance of defendants, lawyers But when the word “reasonably” is thrown into the mix, the problem

defense.

necessary” to the defense that falls short of being “essential” to the

“something necessary, indispensable, or unavoidable.” Webster’s Third New of “essential” includes “necessary,” “important in the highest degree,” and and reasonably necessary to the defense at trial.” An ordinary understanding Today, I focus only on my linguistic concerns about the phrase “essential when one word will do. 2 become judges) for frequently indulging their impulse to use multiple words annoyance, perhaps attributable to the chronic affliction of lawyers (who later to it, I could ignore the needless use of duplicative words as a minor common understanding, “necessary” to the defense. If this were all there was information is “essential” to a criminal defendant’s defense, then it is, by International Dictionary 777 (unabridged ed. 2002). Thus, if certain

recited in Farrow and its progeny. some way different from, the “essential and reasonably necessary” standard