2018-0608, State of New Hampshire v. Stephen Girard

determine whether the court erred in failing to disclose a dditional material. We family counseling records provided to the trial court for its in camera review to from the indecent exposure indictments. H e also requests that we review discretion when it denied his motion to sever the computer - related indictments charges. On appeal, he argues that the trial court unsustainably exercised its and convicted o n the remaining indece nt exposure and computer - related Superior Court (Delker, J.), he was acquitted of the witness tampering charges witness tampering, see RSA 641:5 (2016). Following a bench trial in the counts of indecent exposure, see RSA 645:1, II(a) (2016), and two counts of two counts of misuse of a computer or network, see RSA 638:17, IV (2016), two HANTZ MARCONI, J. The defendant, Stephen Girard, was charged with

brief and orally, for the defendant. Thomas Barnard, senior assistant appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Sean R. Locke, assistant

No. 2018 - 0608 Rockingham

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

[was] charged” and ruled it admissible but denied the remainder of the State’s request. The trial court found that the Facebook threat was “part of the conduct for which the defendant had happened; and (4) the defenda nt’s violation of a court order by making the Facebook threats. victim’s disclosure to her mother; (3) the defendant’s text message to his son apologizing for what minor victim, including discussions about sex and showing her pornographic videos; ( p. 2 2) the described four topics addressed in the State’s motion: (1) the def endant’s prior conduct with the statements of the defendant pursuant to New Hampshire Rule of Evidence 404(b).” The court The trial court described the State’s motion as seeking “to admit evidence of certain conduct and 1

joined them. See N.H. R. Crim. P. p. 2 20. concluded that the pending charges were logically and factually connected and charges for trial and that the defendant had not objected to joinder. T he court State, the trial court observed that the State had not formally joined the 1 In a pretrial ruling addressing a pending motion in li mine filed by the

accounts resulted in t he witness tampering charges. mother’s cousin and his unauthorized access to the mother’s computer computer - related charges. Th e defendant’s e - mail communication to the and changed the passwords o n the accounts. These acts resulted in the e - mail and Facebook account s of the victim’s mother, w ithout her permission, mouth shut. I didn’t do anything.” Shortly thereafter, the defendant accessed If [the mother] doesn’t knock it off, I will sue for slander. Tell her to keep her “You better tell [the victim’s mother] to knock it off. [The victim]’s stuff is a lie. police his acts of indecent exposure, he sent the following e - mail to her cousin: After the defendant learned that the victim ’s mother had reported to the

as occurring between January 1, p. 2 2016 and September 11, 2016. indecent exposure a s a result of these acts. The indictments described the acts also masturbated in front of her. T he defendant was indicted on two counts of interviewed at the Child Advocacy Center, she reported that the defendant had had sent a picture of his erect penis to her. W hen the victim was subsequently September 2016, the minor victim disclosed to her mother that the def e ndant We briefly set forth th e facts necessary to decide the issues before us. In

disclosure ruling, and for such other relief as it may deem appropriate. the trial court to determine whether this clarification affects its original conducting in camera review of privileged materials and remand this case to the parties, w e also clarify the standard to be applied by trial courts when Having considered the supplemental memoranda that we requested from

a computer. sustainable. We affirm the defendant’s convictions on the charges of misuse of conclude that the trial court’s ruling on the defendant’s mot ion to sever is p. 3 3

unsustainable exercise of discretion. State v. Brown, 159 N.H. 544, 555 discretionary; we will affirm its ruling unless the decision constitutes an computer - related ch arges. The trial court’s decision to join or sever charges is motion to sever the indecent exposure charges f r om the witness tampering and The defendant first argues that the trial court erred when it denied his

defendant appeale d. convictions on the indecent exposure and computer - related charges, the waived his right to a jury trial and proceeded to a bench trial. Following his the parties in this case. A fter his motion to sever was denied, the defendant The co ur t therefore sua sponte ordered disclosure of certain re cords to

the disclosure of these records to counsel i n [Case 2]. counseling session. It would raise form over substance [ ] to limit to be the catalyst for disclosure following the September 2016 victim in this case] on social media. This conduct in turn appe ars the defendant engaged in inappropriate contact with [the minor Most of the sessions subject to disclosure relate to allegations that

review of family counseling records in Case 2 and found: was related to the victim in this case. The court conducted an in camera indicted on sexual assault charges (Case 2) that involved a different victim who Pr ior to trial, the trial court became aware that the defendant had been

defendant in this instance,” and denied the defendant’s motion. concluded that “the purpose of joinder outweighs the marginal prejudice to the facts would be mutually admissible at the respective trials.” The court charges would cause evidentiary chaos because. . . a significant overlap of the After applying the aforementioned criteria, the court ruled that “severing the factually connected to the witness tampering and computer - related charges. question” to be w hether the indecent exposure charges were logically and they are logically and factually connected. The court found the “more difficult outlined in” our case law regarding whether charges may be joined because tampering and computer - related charges “most certainly fit the criteria I n a review of its earlier ruling, the trial court found that the witness

separate trials. charges would “unfairly prejudice the jury” against him. He requested three exposure charges with the computer - related offenses and witness tampering sets of charges were unrelated to one another, and that trying the indecent In response, the defendant filed a motion to sever, arguing that the three p. 4 4

may reduce inconvenience to vic tims and witnesses. Id. The potential benefits State and the def e ndant. Id. Joint trials avoid the duplication of evidence and We also observed that t he joint trial of offenses may benefit both the

accord with the purposes of joinder.” Id. Id. at 552. Rather, they serve “as guidelines that must be sensibly applied in We cautioned that no single factor is dispositive on the question of relatedness. witnesses, testimony and other evidence related to the offenses.” Id. at 551 - 52. duplication of law regarding the crimes charged; and (5) the duplication of charged offenses; (3) the similarity in the defendant’s mode of operation; ( p. 4 4) the charged acts; (2) the commonality of the victim(s) and/ or participant(s) for the related: “(1) the temporal and spatial relationship among the underlying determining whether charges resulting from separate criminal episodes are In Brown, w e set forth five factors that trial court s should consider when

charges,” Brown, 159 N.H. at 551. the u nderlying charged conduct and the evidence to b e used to prove the determined by the close relationship among the offenses with respect to both accused has a propensity to engage in criminal conduct,” id., is “largely and factually connected in a manner that does not solely demonstrate that the W hether offenses that occurred during separate criminal episodes are “logically supports a finding that the charges were logically and factually connected. N.H. R. Crim. P. 20. Accordingly, we must determine whether the record

best interests of justice. trial unless the trial judge determines that joinder is not in the joinder of such charges. The trial judge shall join the charges for w ith two or more related offenses, either party may move for (2) Joinder of Related Offenses for Trial. If a defendant is charged

propensity to engage in criminal conduct. a manner that does not solely demonstrate that the accused has a episodes, but nonetheless, are logically and factually connected in (C) Are alleged to have occurred during separate cri minal (B) Constitute parts of a common scheme or plan; or episode; or (A) Are alleged to have occurred during a single criminal

(1) Related Offenses. Two or more offenses are related if they:

(a) Joinder of Offenses

New Hampshire Rule of Criminal Procedure 20 provides in relevant part:

was clearly untenable or unreasonable to the prejudice of his case. Id. (2009). To succeed on appeal, the defendant must demonstrate that the ruling p. 5 5

beca me the target of the threats underlying the witness tampering charges and victim’s mother reported to the police the vi ctim’s disclos u re and, as a result, least one of the victims was affected by all of the defendant’s acts: the minor we conclude that the trial court’s conclusion is supported by the record. At conclusion that “all of the charges concern the same or similar participants,” Although he challenges each of the trial court’s findings underlying its ultimate alleged victim or participants as the witness - tampering and computer charges.” defendant argues that “the indecent exposure charges did not have the same commonality of the victims and/or participants. Brown, 1 p. 5 59 N.H. at 552. The charges arising from separate criminal episodes are related addresses the The second Brown factor to be considered when determining whether

charges would n o t have occurred in absence of ass a ult). charges were conn e cted, in part, because acts leading to witness t a mpering 46 p. 5 5 S.W.3d 899 (Mo. 2015) (concluding that as sault and witness t a mpering and were therefore properly deemed to be related. See, e.g., State v. Roberts, allegations resulted in the witness tampering and computer - related charges Here, the actions taken by the defendant after he lea rned of the victim’s not solely demonstrate a defendant’s propensity to commit crime.” Id. at 553. episodes may be ‘logically and factually connected’ in a variety of ways that do difference. As we have observed, “offenses stemming from separate criminal themselves are connected.” In this case, this is a distinction without a are somehow connected to another offense, bu t whether the offenses arguing: “The question is not whether a witness’s allegations about one offense accusations of indecent exposure.” The defendant c hallenges this analysis, related and witnes s tampering offenses would not have occurred absent the concluded, however, that the charges were related because the “computer rise to the witness tampering and computer - related charges. The court resulted in the indecent exposure charges occurred earlier than th ose that gave about S e pt e mber 29, 2016. T he trial court recognized that the acts that t a mpering and computer - related indic tments alleged acts that occurred on or between January 1, 2016 and Sept ember 11, 2016; in contrast, the witness He observes that the i ndecent exposure indictments alleged acts that occurred temporally or spatially related to the witness - tampering and computer charges. The defendant first argues that the indecent exposure charges were not

persuaded. rebut the trial co u rt’s finding that the charges were related. We are not by - step review of the factors set forth in Brown, the def endant attempts to episode or that they constituted part of a common scheme or plan. In a st ep did not find that the three pairs of charges occurred during a single criminal The defendant observes that the State did not allege and the trial court

agai nst enhanced sentencing that might occur from separ a te t rials. Id. possibil i ty of concurrent sentences i n the event of conviction, and protec tion to the def e ndant m ay inc l ud e the faster disposition of pending charges, the p. 6 6

right to obtain disclosure of material helpful to his defense against the defendant argues that the trial court may have erred when, after weighing his acknowledging that neither pa rty had access to the privileged records, the State of N.H. (State v. Theodospoulos), 153 N.H. 318, 320 - 21 (200 p. 6 6). Rather, State is in possession of the records sought by the defendant. Cf. Petition of contained therein. We note at the outset that this is not a case in which the determine whether the court erred in failing to disclose additional material counseling sessions provided to the trial court for in camera review to The defendant also asks that we review the records of the family

enterprise”). “allows the jury to see the complete set of facts about the alleged criminal Miller, Federal Practice and Procedure § 143 (4th ed. 201 p. 6 6) (joinder proper if it sever the charges. See id. at 551; cf. 1A Charles Alan Wright & Arthur R. unsustainably exercise its discretion when it denied the def endant’s mo tion to be used to prove the c harges, we conclude that the trial court did not underlying charged con duct and the evidence, in c luding witness testimony, to Given the close relationship amon g the offenses with re spect to both the

witness t ampering charges. police officer was relevant to both the indecent exposure charges and the computer - related charges overlapped. Additionally, t estimony by the same case. As we have observed, ev idence related to the witness tampering and evidence related to the offenses,” id., the fifth Brown factor, is significant in this However, the potential for “duplication of witnesses, testimony and other

joining the charged offenses. the crimes charged. Therefore, the fourth Brown factor provides no support for It appears undisputed that there is little duplica tion of the law regarding

supports joinder. but when combined with the other co nnections between the charges, it charges. Considered in isolation, we do not find this to be a compelling factor, enabled the defendant to take actions that underlay each of the pairs of third Brown criterion was met. It may well be that proficiency with technology defendant’s “control over the family’s technology” supports a finding that the mode of operation was dissimilar among the charges, the State argues that the of operation.” Id. at 552. Although the trial court found that the defend ant’s The third Brown factor addresses “the similarity in the defendant’s mode

offenses involved common witnesses and primarily the same police officers). investigating police officer. See, e.g., id. at 554 (joinder proper where charged t rial of the charged offenses involved common witnesses, including the same the victim of the charges of the unauthorized use of a computer. In addition, p. 7 7

and communications governed by this statute may be required by court order. See RSA 3 30 - A:32. The legislature has specifically provided that, in certain cases, disclosure of the relationships 2

the Sixth Amendment to the United States Constitution, see State v. Farrow, necessary” standard in the context of the right to confrontation, provided by We observe that we have applied the “essential and reasonably

“essential and reasonably necessary,” it found no elucidation of that standar d. noted, although its research yielded 29 cases in which we used the phrase (Lynn, J., concurring specially). As the trial court in th e case now before us elaborated upon or explained what this phrase means.” Guay, 162 N.H. at 386 Almost twenty years later, Justice Lynn observed that “we have never that is “‘essential and reasonably necessary’ to the defense.” Id. at 106. court must disclose to the defense confidential material that contains evidence With regard to the second issue, we also held in Gagne that the trial

and relevant to his defense.” Id. at 105. a reasonable probability that the records contain information that is material Gagne we held that, to obtain in camera review, “the defendant must establish standard to be met for the defendant to obtain access to the records. Id. In in camera review of the privileged material. Id. The second issue is the related, issues. Id. at 104. The first issue is the standard to be met to obtain A defendant’s request to obtain privileged records raises two distinct, but

requires disclosure of confidential records. See id. enables the trial court to conduct that inquiry and decide whether due process Upon a proper showing by the defendant, in camera review of such records evidence helpful to his defense. State v. Gagne, 136 N.H. 101, 105 (1992). the confidentiality of such records again st the defendant’s right to obtain records must be disclosed to a criminal defendant, the trial court must balance patient privilege must cede to due process considerations such that privileged (amended 2019). Accordingly, to determine whether the psychotherapist - 2 N.H. 64, 6 p. 7 7 (2011), has been established by statute. See RSA 3 30 - A: 32 (2017) receive complete treatment, Petition of State of N.H. (State v. MacDonald), 162 privilege, which is intended “to encourage full disclosure by the patient” to Laurie, 139 N.H. 325, 327 (1995). In contrast, the psycho therapist - patient to his d efense is rooted in the constitutional right to due process. See State v. A criminal defendant’s interest in obtaining disclosure of material helpful

prejudice of his case. Id. must demonstrate that the ruling was clearly unreasonable or untenable to the defendant ar gues that a trial court’s ruling is unsustainable, the defendant decision is sustainable. State v. Guay, 162 N.H. 3 p. 7 75, 3 p. 8 85 (2011). When a court’s ruling on the management of discovery to determine whether its certain records did not meet the standard for disclosure. We review a trial statutory privilege that governs counseling records, the c ourt determined that 8

Whether or not privileged information is admissible at trial is an entirely different matter. 3

the outcome.” Bagley, 473 U.S. at 6 p. 8 82. ‘reasonable probability’ is a probability sufficient to undermine confidence in accused and material to guilt or punishment” (quotation omitted)). “A (Me. 2018) (requiring disclosure of privileged records that are “favorable to the have affected the outcome of the trial.”); State v. Olah, 184 A.3d 360, 368 - 69 requirement of materiality is a concern that the suppressed evidence might see U nited States v. Agurs, 427 U.S. 97, 104 (1976) (“[I]mplicit in the result in the proceeding. United States v. Bagley, 473 U.S. 667, 682 (1985); reasonable probability that” disclosure of the evidence will produce a different Supreme Court has explained that evidence “is material only if there is a consequence in determining the action.” N.H. R. Ev. 401. The United States probable than it would be without the evidence; and (b) the fact is of “Evidence is relevant if: (a) it has any tendency to make a fact more or less things, “relevant and material to the issue before the court” (quotation omitted). (requiring disclosure of privile ged documents when they are, among other 142 N.H. 357, 363 (1997); see State v. Peseti, 65 P.3d 119, 129 (Haw. 2003) and relevant “evidence is in fact contained in the records.” State v. Graham, Then, in reviewing the records, the trial court must determine if material

ellipsis omitted). have explained, this “threshold showing is not unduly high.” Id. (quotation and sought.” State v. Sargent, 14 p. 8 8 N.H. 571, 573 (2002) (quotation omitted). As we conjecture, th at, in reasonable probability, will be explained by the information defendant must present “some specific concern, based on more than bare and relevant to his defense.” Id. at 105. To satisfy this standard, the reasonable probability that the records contain information that is material confidential records, the defendant must demonstra te that there is “a The first step of the inquiry is unaltered: to obtain in camera review of

in criminal cases. 3 determining, whether review and disclosure of confidential records is required clarifies the task that trial counsel have in a sse rting, and trial courts have in us to harmonize the standards to be applied at each step of the inquiry and records must be disclosed. See Gagne, 136 N.H. at 104, 106. Doing so allows necessary” standard employed in Gagne to determine whether confidential Today, we clarify the meaning of the “essential and reasonably

at 733. we did in Farrow. Compare Gagne, 136 N.H. at 104 - 05, with Farrow, 116 N.H. gave “essential and reasonably necessary” a different interpretation there than 136 N.H. at 105. Indeed, our due process analysis in Gagne suggests th at we attendant standards in the context of due process requirements, see Gagne language when reviewing the non disclosure of confidential records and the 116 N.H. 731, 732 - 33 (1 p. 9 976), but we have more recently employed the same 9

defendant’s defense at trial, it should order a new trial on the indecent today. If the court discovers records that are material and relevant to the r eview of the privileged records under the standard that we have clarified permit the trial court to conduct, in the first instance, a further in camera victim’s credibility was relevant, we conclude that remand is necessary to As for the indecent exposure charges, with respect to which the minor

network. relevant to the defendant’s defense to the charges of misu se of a computer or today, none of the undisclosed records contain information that is material and proceedings, we conclude that, under the standard that we have clarified reviewing the privileged reco rds as well as the record of the trial court exposure, not to the charges of misuse of a computer or network. After the minor victim’s testimony in this case related to the charges of indecent exposure and two counts of misuse of a computer or network. We note that The defendant is appealing his convictions on two counts of indec ent

trial court should review the records with our clarification in mind. consider whether such information was material and relevant. On remand, the court excluded information that related only to general credibility, and did not sessions “out of an abundance of caution.” It appears from its ruling that the general credibility.” Therefore, the trial court disclosed the records of all five victims, the Court finds t hat these session[s] involve more than an attack on directly or implicitly to the defendant’s misconduct toward the two alleged defendant.” The court explained: “Because these five sessions relate either fifth session . . . may or may not relate to the accusations against the allegations of the defendant’s misconduct toward either of the [victims].. . . A that records of “only four sessions relate either directly or implicitly to the In this case, the trial court reviewed the privileged records and found

requiring disclosure. containing general credibility evidence may be material and relevant thereby v. Miller, 155 N.H. 246, 25 6 (2007). However, given our clarification, records examination on evidence adduced to show bias, motive or prejudice. See State evidence is entitled to the same level of constitutional protection as cross that rest riction. Nor do we hold that cross - examination as to general credibility it in all cases.” Id.; see N.H. R. Ev. 608. Our holding today does not expand rules . . . have significantly restricted such evidence without totally precluding 18, 24 (1st Cir. 2005). As the First Circuit has observed, “modern evidence inference that the witness has a tendency to lie.” White v. Coplan, 3 p. 9 9 9 F.3d specific instances of misbehavior, especially prior convictions — to support an through character or reputation witnesses and sometimes through proof of General credibility evidence has been described a s “traditional proofs — offered address whether general credibility evidence should be a factor in this calculus. credibility evidence and other forms of impeachment evidence. We briefly We note that, her e, the trial court differentiated between general p. 10 10

HICKS, BASSETT, and DONOVAN, JJ., concurred.

reasonable doubt. exposure charges unless the cou rt finds that the error was harmless beyond a