State of New Hampshire v. Genaro Claussells-Vega

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0070, State of New Hampshire v. Genaro
Claussells-Vega, the court on November 15, 2023, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
defendant, Genaro Claussells-Vega, appeals his convictions on one count of
aggravated felonious sexual assault (AFSA), see RSA 632-A:2, I(m) (2016), one
count of second degree assault by strangulation, see RSA 631:2, I(f) (2016), one
count of kidnapping, see RSA 633:1, I (2016), two counts of domestic violence
simple assault, see RSA 631:2-b, I(a) (2016), and one count of criminal
threatening, see RSA 631:4, I(d) (2016). The defendant argues that the
Superior Court (Nicolosi, J.) erred by admitting the victim’s testimony that the
defendant held anti-police views and by declining to conduct an in camera
review of the victim’s counseling records dated after the charged offenses. We
affirm in part, reverse in part, and remand.

I

The pertinent facts are as follows. The defendant and the victim met
online in December 2020 and began a romantic relationship. The defendant
was then living out of state, but soon moved in with the victim in her
apartment in New Hampshire. The victim’s family lived downstairs. According
to the victim, problems developed in their relationship. She alleged that, as the
relationship progressed, the defendant became more violent and threatened to
hurt her family if she made him leave her apartment. The victim previously
worked as a corrections officer and her brother was an out-of-state police
officer, which were law enforcement roles that the defendant disparaged.

The victim underwent surgery in early 2021. The charged conduct began
several weeks later on the night of March 22, 2021, at which point the victim
was still recovering from her surgery. The victim first reported the assaults to
her doctor on March 24, 2021, during an office visit for follow-up care
regarding her prior surgery. While with her doctor and outside the presence of
the defendant, the victim disclosed that the defendant had sexually assaulted
her and held her hostage in her apartment. The victim waited to report the
assaults to her doctor because she knew it would be her first opportunity to be
away from the defendant. She described to her doctor the defendant’s close
monitoring of her whereabouts and phone use as well as his threats to break
her phone. She also wrote a letter to her brother, put postage on the letter,
and gave it to the doctor’s office to mail. In the letter, she expressed fear of the
defendant’s retaliation against her or law enforcement because he told her on
multiple occasions that he was “anti-police and government.”

The victim asked that her doctor admit her to the hospital and allow the
defendant to drive her there so as not to raise his suspicion. However, contrary
to the victim’s understanding, the hospital’s COVID-19 policy had recently
changed, and the defendant was permitted to visit her until 8:00 p.m.
Disgruntled with the hospital admission, the defendant told her he would
return the next morning to take her home “no matter what.” After he left, the
victim explained the situation to a nurse, who contacted the police. At
approximately 8:50 p.m., the police interviewed the victim at the hospital. The
defendant was later arrested and charged with four counts of AFSA (including
two alternative theories), two counts of domestic violence simple assault, and
one count each of kidnapping, second degree assault, criminal threatening,
and obstructing the report of a crime.

In September 2021, the defendant filed a motion for, inter alia, in camera
review of the victim’s counseling records dated after the alleged assaults. The
defendant emphasized that “a central issue at trial will be the credibility of [the
victim]” and that, according to discovery, she attended counseling both before
and after the alleged assaults. Specifically, the defendant alleged that
discovery showed that the victim was “‘working intensively with her therapist’
because the alleged assaults have exacerbated her previous [posttraumatic
stress syndrome (PTSS)] and anxiety symptoms.” Therefore, the defendant
contended that “[i]t is reasonable to believe that she made statements to a
counselor regarding the alleged assaults after March 25, 2021.” He also
asserted that because she made inconsistent statements about her relationship
with the defendant and named her home life as a “life stressor[ ]” to health care
providers, it is reasonable to believe she also discussed such subjects in
counseling.

The State objected to the defendant’s motion, specifying that the victim’s
positive statements to medical providers about her relationship took place
before the alleged assaults and were made in a medical context. The State
argued that, while the defendant “will likely seek to impeach [the victim] with
these purported inconsistencies,” they “do[ ] not trigger an in camera review to
try and find ‘more’ based on defense counsel’s speculation that more
statements exist.”

The trial court granted the defendant’s motion “as to [the victim’s]
counseling records from December 30, 2020 through March 24, 2021 from [her
counseling provider].” On November 10, 2021, the trial court issued an order

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explaining that it had received correspondence from her counseling provider
indicating that the victim “had not been seen at its office between the dates of
December 30, 2020 through March 24, 2021. No records, therefore, were
produced.”

In October 2021, the defendant filed a motion in limine to exclude, inter
alia, testimony that the defendant harbored anti-police, anti-government
beliefs. The defendant argued that this evidence is irrelevant and must be
excluded as improper character evidence, as it would “serve no purpose at trial
other than painting [the defendant] as a dangerous, violent individual, and that
he acted in accordance with these traits during the incidents alleged.” See
N.H. R. Ev. 401, 404(a). The defendant further asserted that the probative
value of the evidence is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, and misleading the jury. See N.H. R. Ev.
403.

The State objected to the defendant’s motion. While the State conceded
that the challenged evidence “is at least somewhat prejudicial,” it argued that
such prejudice is outweighed by its high probative value in helping the jury
understand the particular circumstances of this relationship as well as why the
victim feared the defendant and waited to report the sexual assaults until she
was no longer in his presence.

Upon request of the trial court after a hearing on the motion, the State
provided the court with copies of relevant police reports. These police reports
indicated that the victim “kept saying how scared she was for her own safety
and the concern she had for her family if [the defendant] got released, citing the
numerous threat[s] he had made to her in the past.” She reported that the
defendant is very “anti-police” and “anti-government” and that he had referred
to law enforcement as “pigs” and “oppressors.” (Capitalization omitted.) The
victim explained that the defendant “is extremely combative with law
enforcement and he has made statements saying he will kill any cop he sees
and will succumb to suicide by cop if he has to.” She was concerned because
she kept two pistols in a small safe in her apartment, and the defendant
“repeatedly asked her for the combination to the safe so that he could access
the guns, but she refused to tell him as she did not want anyone to get hurt by
him.”

The trial court denied the motion in limine with respect to the challenged
“anti-police” testimony. The court agreed with the State’s objection that the
evidence “is relevant to show the [victim’s] fear of the defendant and her
concern for law enforcement if she reported, and that her delay in reporting the
defendant’s assaultive and other criminal conduct and the ultimate plan she
implemented to report to her medical provider was causally related to this
fear.” The court noted that “[a]n obvious question at trial will be why, if the

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events occurred as [the victim] described, she did not call the police or seek
assistance from her family, who lived in the apartment below.” The court
found this evidence “highly relevant to the alleged victim’s state of mind and
the decisions she made during the alleged incident about reporting” as well as
“highly probative of credibility.” The court did “not find it cumulative of other
evidence” and determined that this “[a]nti-government, anti-police sentiment is
not so inflammatory that the jury will be side-tracked or unable to follow a
limiting instruction, which the Court will give absent objection by the
defendant.” Thus, the challenged testimony was deemed admissible.

After a four-day trial in November 2021, the jury found the defendant
guilty of one count of AFSA, one count of second degree assault, one count of
kidnapping, two counts of domestic violence simple assault, and one count of
criminal threatening. This appeal followed.

II

On appeal, the defendant argues that the trial court erred by admitting
the victim’s testimony that the defendant held anti-police views and by refusing
to conduct an in camera review of the victim’s counseling records dated after
the alleged conduct. We review the trial court’s evidentiary rulings for an
unsustainable exercise of discretion and reverse only if the court’s decision was
clearly untenable or unreasonable to the prejudice of the defendant’s case.
State v. Clark, 174 N.H. 586, 589 (2021). We consider whether the record
establishes an objective basis sufficient to sustain the discretionary decision
made. Id.

The defendant first argues that the trial court erred by allowing the State
to elicit the victim’s testimony that he held anti-police views. Although the
defendant concedes that the victim’s fear was relevant to the timing and
manner of her initial report of the assaults, he asserts that this evidence was
cumulative to prove her fear and carried “a substantial risk of unfair prejudice
because it depicted [the defendant] in a very negative light, as one who harbors
anti-social views.” The defendant specified during oral argument that he does
not challenge the admission of the victim’s testimony that the defendant said
he would die by “suicide by cop” or that he had threatened to harm police
officers; rather, the defendant only challenges the admission of the “abstract”
anti-police views.

Under Rule 401, evidence is relevant if it has “any tendency to make a
fact [of consequence in determining the action] more or less probable than it
would be without the evidence.” N.H. R. Ev. 401. Under the balancing test of
Rule 403, we examine whether the probative value of relevant evidence is
substantially outweighed by the danger of unfair prejudice to the defendant.
Clark, 174 N.H. at 590; see N.H. R. Ev. 403. When weighing the evidence, we

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consider: (1) whether the evidence would have a great emotional impact upon a
jury; (2) its potential for appealing to a juror’s sense of resentment or outrage;
and (3) the extent to which the issue upon which it is offered is established by
other evidence, stipulation, or inference. Clark, 174 N.H. at 590. The trial
court is in the best position to gauge the impact of prejudicial testimony and
what steps to take to remedy that prejudice. Id. Thus, we give the trial court
broad latitude when ruling on the admissibility of potentially unfairly
prejudicial evidence. Id.

The trial court found that the challenged testimony was “highly relevant
to the alleged victim’s state of mind and the decision she made during the
alleged incident about reporting,” was not cumulative of other evidence, and
was “highly probative” of the victim’s credibility. The record supports this
determination. Moreover, forcing the victim to ignore this dynamic of her
relationship with the defendant when testifying about her fear and why she
delayed reporting the assaults “could have infected her testimony with a level of
artificiality or hesitancy, potentially detracting from her credibility in the eyes
of the jury.” Id.

In addition, the record supports the trial court’s determination under
Rule 403 that the probative value of the challenged evidence is not
substantially outweighed by the danger of unfair prejudice to the defendant.
Under these circumstances, we cannot conclude that the victim’s testimony
that the defendant held anti-police views was likely to have any greater
emotional impact on the jury than her testimony that he was willing to “die by
‘[s]uicide by [c]op,’” that he threatened to harm police officers, or her
descriptions of the violent sexual assaults. See State v. Tabaldi, 165 N.H. 306,
323 (2013) (reasoning that “[i]n the context of this case, we cannot say that a
photograph of the defendant holding fanned-out paper currency in his hand
was likely to have any greater emotional impact on the jury than the other
evidence tending to show that he regularly sold drugs”). Thus, while the
challenged evidence may have been prejudicial, we cannot conclude that it was
“so inflammatory as to substantially outweigh its probative value.” Id.
(quotation omitted). Therefore, we conclude that the trial court did not
unsustainably exercise its discretion in admitting the victim’s testimony that
the defendant held anti-police views.

III

We next turn to the defendant’s argument that the trial court erred in
failing to conduct an in camera review of counseling records dated after the
assaults. The defendant contends that the court’s refusal to conduct an in
camera review violated his constitutional due process rights. See N.H. CONST.
pt. I, art. 15; U.S. CONST. amends. V and XIV. We first address the
defendant’s claim under the State Constitution. State v. Ball, 124 N.H. 226,

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231-33 (1983). Because the defendant prevails under the State Constitution,
we need not analyze his argument under the Federal Constitution. See State v.
Hoag, 145 N.H. 47, 48 (2000).

To determine whether the privilege between a patient and mental health
provider 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. See State v. Girard, 173 N.H. 619, 627 (2020); RSA 330-
A:32 (Supp. 2022). In State v. Gagne, we held that in order to trigger an in
camera review of confidential or privileged records, the defendant must
establish a reasonable probability that the records contain information that is
material and relevant to his defense. State v. Gagne, 136 N.H. 101, 105 (1992).
This threshold showing is not unduly high. State v. Fiske, 170 N.H. 279, 285
(2017). At a minimum, a defendant must present some specific concern, based
on more than bare conjecture, that, in reasonable probability, will be explained
by the information sought. Id. Although a defendant is not required to state
the precise nature of the information sought, he must provide the court with a
logical factual basis for his request, based on information independently
obtained, that the information sought may yield relevant evidence. Id. If the
defendant makes this showing, then the trial court, in reviewing the records,
must determine if material and relevant evidence is in fact contained in the
records. Girard, 173 N.H. at 628.

In his motion for in camera review, the defendant asserted, based on
discovery provided by the State, that: (1) the victim likely attended counseling
both before and after the alleged assaults; (2) because the victim was working
with a counselor due to the alleged assaults exacerbating her prior mental
health symptoms, it was reasonable to believe she made statements to a
counselor regarding the alleged assaults; and (3) because the victim previously
made inconsistent statements regarding her “home life and relationships,” it
was reasonable to believe her counseling records might contain additional
statements. Specifically, the defendant asserted that, based on discovery, the
victim told a social worker one month prior to the assaults that she depended
on the defendant for assistance with daily activities and that he was “a
protective factor in her life,” yet later told police that he had “always been
controlling and possessive of her.” (Quotation omitted.) He argued in his
motion that “[w]ithout a review of the records, there is no way to know how she
was characterizing her life to her counselor and whether it was consistent with
her statements to police,” which would speak to her credibility.

We conclude that the defendant’s showing of inconsistent statements
coupled with the reasonable probability that the victim discussed the
defendant’s alleged conduct in counseling is sufficient, as a matter of law, to
trigger an in camera review of the victim’s counseling records dated after the

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assaults. See Gagne, 136 N.H. at 105 (“the defendant must establish a
reasonable probability that the records contain information that is material
and relevant to his defense”). The threshold showing for in camera review is
“not unduly high,” and the defendant’s theory here is “based on more than bare
conjecture.” Fiske, 170 N.H. at 285; see also Hoag, 145 N.H. at 49 (concluding
that “the defendant’s theory that the victim may have made additional
exculpatory statements in counseling is ‘based on more than bare conjecture’”
where the defendant showed that the victim made inconsistent statements
regarding penetration).

The State contends that “because the victim’s alleged inconsistent
statements do not speak to an essential or material element of any of the
offense[s] brought against the defendant, the trial court was not required to
review the victim’s counseling records in camera based on a general assertion
of inconsistent statements alone.” However, we have previously observed in the
in camera review context that “records containing general credibility evidence
may be material and relevant thereby requiring disclosure.” Girard, 173 N.H.
at 629. Moreover, the defendant did not provide a “general assertion of
inconsistent statements,” as the State claims; rather, he pointed to specific
contradictory statements by the victim that were disclosed in discovery. By
explaining the connection between these statements and the role that the
victim’s credibility was anticipated to play at trial, the defendant “meaningfully
articulate[d] how the information sought is relevant and material to his
defense.” State v. King, 162 N.H. 629, 632 (2011).

The State further argues that the defendant failed to trigger in camera
review because we have previously determined that “[w]hen a trial court knows
nothing more than that a victim has spoken with [a provider], the defendant
has not established a reasonable probability that the [provider’s] records
contain information that is material and relevant to the defense.” State v.
Taylor, 139 N.H. 96, 98 (1994). However, here the defendant did assert more
than merely that the victim spoke with a counselor — he showed a reasonable
probability, based on discovery, that the victim was in counseling in part
“because the alleged assaults have exacerbated her previous PTSS and anxiety
symptoms.” Accordingly, we reverse the trial court’s denial of the defendant’s
motion with respect to counseling records dated after the alleged conduct and
remand.

On remand, the trial court should direct the appropriate treatment
provider or providers to provide the victim’s counseling records for in camera
review. The trial court should then review the confidential records in
accordance with the standard set forth in Girard. If the trial court concludes
that the records do contain evidence that should have been disclosed to the
defense, the court may release that evidence to the parties with any necessary
protective order, taking into account the victim’s rights under Part I, Article 2-b

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of the New Hampshire Constitution and RSA 21-M:8-k (Supp. 2022), if any. If
the court releases any evidence to the parties, the court should then provide
the parties with an opportunity to make arguments as to whether a new trial is
warranted. Cf. State v. Graham, 142 N.H. 357, 364 (1997) (if records contain
evidence that should have been disclosed, the trial court “should order a new
trial unless it finds that the error of not admitting the evidence in the first trial
was harmless beyond a reasonable doubt”).

Any issues that the defendant raised in his notice of appeal, but did not
brief, are deemed waived. Clark, 174 N.H. at 595.

Affirmed in part; reversed in
part; and remanded.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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