State of New Hampshire v. Stephen Girard

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2018-0608

THE STATE OF NEW HAMPSHIRE

v.

STEPHEN GIRARD

Argued: February 12, 2020
Opinion Issued: October 16, 2020

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

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

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

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

I

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

After the defendant learned that the victim’s mother had reported to the
police his acts of indecent exposure, he sent the following e-mail to her cousin:
“You better tell [the victim’s mother] to knock it off. [The victim]’s stuff is a lie.
If [the mother] doesn’t knock it off, I will sue for slander. Tell her to keep her
mouth shut. I didn’t do anything.” Shortly thereafter, the defendant accessed
e-mail and Facebook accounts of the victim’s mother, without her permission,
and changed the passwords on the accounts. These acts resulted in the
computer-related charges. The defendant’s e-mail communication to the
mother’s cousin and his unauthorized access to the mother’s computer
accounts resulted in the witness tampering charges.

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

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

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

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

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

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

The court therefore sua sponte ordered disclosure of certain records to
the parties in this case. After his motion to sever was denied, the defendant
waived his right to a jury trial and proceeded to a bench trial. Following his
convictions on the indecent exposure and computer-related charges, the
defendant appealed.

II

A

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

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

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

(a) Joinder of Offenses

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

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

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

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

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

We also observed that the joint trial of offenses may benefit both the
State and the defendant. Id. Joint trials avoid the duplication of evidence and
may reduce inconvenience to victims and witnesses. Id. The potential benefits

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to the defendant may include the faster disposition of pending charges, the
possibility of concurrent sentences in the event of conviction, and protection
against enhanced sentencing that might occur from separate trials. Id.

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

The defendant first argues that the indecent exposure charges were not
temporally or spatially related to the witness-tampering and computer charges.
He observes that the indecent exposure indictments alleged acts that occurred
between January 1, 2016 and September 11, 2016; in contrast, the witness
tampering and computer-related indictments alleged acts that occurred on or
about September 29, 2016. The trial court recognized that the acts that
resulted in the indecent exposure charges occurred earlier than those that gave
rise to the witness tampering and computer-related charges. The court
concluded, however, that the charges were related because the “computer
related and witness tampering offenses would not have occurred absent the
accusations of indecent exposure.” The defendant challenges this analysis,
arguing: “The question is not whether a witness’s allegations about one offense
are somehow connected to another offense, but whether the offenses
themselves are connected.” In this case, this is a distinction without a
difference. As we have observed, “offenses stemming from separate criminal
episodes may be ‘logically and factually connected’ in a variety of ways that do
not solely demonstrate a defendant’s propensity to commit crime.” Id. at 553.
Here, the actions taken by the defendant after he learned of the victim’s
allegations resulted in the witness tampering and computer-related charges
and were therefore properly deemed to be related. See, e.g., State v. Roberts,
465 S.W.3d 899 (Mo. 2015) (concluding that assault and witness tampering
charges were connected, in part, because acts leading to witness tampering
charges would not have occurred in absence of assault).

The second Brown factor to be considered when determining whether
charges arising from separate criminal episodes are related addresses the
commonality of the victims and/or participants. Brown, 159 N.H. at 552. The
defendant argues that “the indecent exposure charges did not have the same
alleged victim or participants as the witness-tampering and computer charges.”
Although he challenges each of the trial court’s findings underlying its ultimate
conclusion that “all of the charges concern the same or similar participants,”
we conclude that the trial court’s conclusion is supported by the record. At
least one of the victims was affected by all of the defendant’s acts: the minor
victim’s mother reported to the police the victim’s disclosure and, as a result,
became the target of the threats underlying the witness tampering charges and

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

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

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

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

Given the close relationship among the offenses with respect to both the
underlying charged conduct and the evidence, including witness testimony, to
be used to prove the charges, we conclude that the trial court did not
unsustainably exercise its discretion when it denied the defendant’s motion to
sever the charges. See id. at 551; cf. 1A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 143 (4th ed. 2016) (joinder proper if it
“allows the jury to see the complete set of facts about the alleged criminal
enterprise”).

B

The defendant also asks that we review the records of the family
counseling sessions provided to the trial court for in camera review to
determine whether the court erred in failing to disclose additional material
contained therein. We note at the outset that this is not a case in which the
State is in possession of the records sought by the defendant. Cf. Petition of
State of N.H. (State v. Theodospoulos), 153 N.H. 318, 320-21 (2006). Rather,
acknowledging that neither party had access to the privileged records, the
defendant argues that the trial court may have erred when, after weighing his
right to obtain disclosure of material helpful to his defense against the

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statutory privilege that governs counseling records, the court determined that
certain records did not meet the standard for disclosure. We review a trial
court’s ruling on the management of discovery to determine whether its
decision is sustainable. State v. Guay, 162 N.H. 375, 385 (2011). When a
defendant argues that a trial court’s ruling is unsustainable, the defendant
must demonstrate that the ruling was clearly unreasonable or untenable to the
prejudice of his case. Id.

A criminal defendant’s interest in obtaining disclosure of material helpful
to his defense is rooted in the constitutional right to due process. See State v.
Laurie, 139 N.H. 325, 327 (1995). In contrast, the psychotherapist-patient
privilege, which is intended “to encourage full disclosure by the patient” to
receive complete treatment, Petition of State of N.H. (State v. MacDonald), 162
N.H. 64, 67 (2011), has been established by statute. See RSA 330-A:32 (2017)
(amended 2019).2 Accordingly, to determine whether the psychotherapist-
patient privilege must cede to due process considerations such that privileged
records must be disclosed to a criminal defendant, the trial court must balance
the confidentiality of such records against the defendant’s right to obtain
evidence helpful to his defense. State v. Gagne, 136 N.H. 101, 105 (1992).
Upon a proper showing by the defendant, in camera review of such records
enables the trial court to conduct that inquiry and decide whether due process
requires disclosure of confidential records. See id.

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

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

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

2The legislature has specifically provided that, in certain cases, disclosure of the relationships
and communications governed by this statute may be required by court order. See RSA 330-A:32.

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116 N.H. 731, 732-33 (1976), but we have more recently employed the same
language when reviewing the nondisclosure of confidential records and the
attendant standards in the context of due process requirements, see Gagne
136 N.H. at 105. Indeed, our due process analysis in Gagne suggests that we
gave “essential and reasonably necessary” a different interpretation there than
we did in Farrow. Compare Gagne, 136 N.H. at 104-05, with Farrow, 116 N.H.
at 733.

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

The first step of the inquiry is unaltered: to obtain in camera review of
confidential records, the defendant must demonstrate that there is “a
reasonable probability that the records contain information that is material
and relevant to his defense.” Id. at 105. To satisfy this standard, the
defendant must present “some specific concern, based on more than bare
conjecture, that, in reasonable probability, will be explained by the information
sought.” State v. Sargent, 148 N.H. 571, 573 (2002) (quotation omitted). As we
have explained, this “threshold showing is not unduly high.” Id. (quotation and
ellipsis omitted).

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

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

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 We note that, here, the trial court differentiated between general
credibility evidence and other forms of impeachment evidence. We briefly
address whether general credibility evidence should be a factor in this calculus.
General credibility evidence has been described as “traditional proofs — offered
through character or reputation witnesses and sometimes through proof of
specific instances of misbehavior, especially prior convictions — to support an
inference that the witness has a tendency to lie.” White v. Coplan, 399 F.3d
18, 24 (1st Cir. 2005). As the First Circuit has observed, “modern evidence
rules . . . have significantly restricted such evidence without totally precluding
it in all cases.” Id.; see N.H. R. Ev. 608. Our holding today does not expand
that restriction. Nor do we hold that cross-examination as to general credibility
evidence is entitled to the same level of constitutional protection as cross-
examination on evidence adduced to show bias, motive or prejudice. See State
v. Miller, 155 N.H. 246, 256 (2007). However, given our clarification, records
containing general credibility evidence may be material and relevant thereby
requiring disclosure.

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

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

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

9
exposure charges unless the court finds that the error was harmless beyond a
reasonable doubt.

Affirmed in part; and remanded.

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

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