State v. Warren

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
Case No. 2022-0634
Citation: State v. Warren, 2025 N.H. 5

THE STATE OF NEW HAMPSHIRE

v.

ERIN WARREN

Argued: October 10, 2024
Opinion Issued: January 22, 2025

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, assistant attorney general, on the brief and orally), for
the State.

Pamela E. Phelan, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

MACDONALD, C.J.

¶1 Presenting a question of first impression, the principal issue before
us is whether permitting the victim to testify at trial via a one-way livestream
video feed outside the presence of the defendant, Erin Warren, violated the
defendant’s right under the New Hampshire Constitution to meet the witnesses
against her “face to face.” N.H. CONST. pt. I, art. 15. We hold that it did. We
reverse the defendant’s second-degree assault conviction and remand.
Because we conclude with respect to the defendant’s conviction for first-degree
assault that the error was harmless, we affirm that conviction.

I. Background

¶2 The jury could have found the following facts. On July 17, 2018,
A.D., the defendant’s five-year-old daughter, was admitted to Frisbee Memorial
Hospital (hospital) with a wound on her head measuring twelve centimeters
horizontally and five centimeters vertically. The wound was “swollen” and “red”
with “pus coming out of it,” and was infected with multiple kinds of bacteria.
The wound had been present for “quite some time,” potentially for weeks. A.D.
was treated in the hospital with intravenous antibiotics for several days.

¶3 While A.D. was in the hospital, linear bruises were observed on
A.D.’s forearms and wounds on her cheek, ear, and foot. One of the treating
physicians described the injuries on A.D.’s arms as “almost a perfect rectangle
across both and very symmetric,” with bruising marks “in the same spot, . . .
same size, shape” with “defined edges” that “looked like something had been
strapped across her arms.” Another doctor testified that he noted “two linear
scar[s] . . . on the anterior aspect of both arms, which look like something had
been tied there.”

¶4 Concerned that medical professionals were not alerted sooner about
A.D.’s head wound, and that A.D. had several injuries at various stages of
healing, hospital staff made a report to the New Hampshire Division for
Children, Youth and Families (DCYF) and the Rochester Police Department.

¶5 After more than a week in the hospital, A.D. was discharged into the
custody of a licensed foster parent who previously had custody of A.D. for
approximately nine months in 2017. A.D. was examined by a pediatric nurse
practitioner for the Child Advocacy and Protection Program who concurred with
doctors at the hospital that the severity of the wound was due to a delay in
treatment.

¶6 After several weeks in foster care, A.D. disclosed to a caretaker that
the defendant had taped her mouth shut. DCYF was informed, and A.D. was
interviewed by the director of the Child Advocacy Center. The defendant was
subsequently charged with, inter alia, first-degree assault for failing to seek
medical attention for the wound on A.D.’s head, and second-degree assault for
causing bodily injury to A.D. by binding her arms for a prolonged period of
time. See RSA 631:1 (2016); RSA 631:2 (2016).

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 [¶7] Before trial, the State moved to allow A.D. to testify at trial via one-
way video feed “to prevent her from having to see her mother.” The State
proposed that A.D. testify “from elsewhere in the Courthouse, and counsel can
conduct examination either in the same room as A.D. or from the video feed,
provided that A.D. does not have to see the defendant in the video.” In
support, the State asserted that if A.D. were to see her mother she “would have
an immediate physical response” and “could become unresponsive.” The State
argued that “[t]he reliability of [A.D.’s] testimony would be otherwise assured
under the State’s proposed procedure” because A.D. “would be present for live
cross-examination; she would be testifying under oath; and, her demeanor
would be capable of being observed by jury, judge and the defendant.” The
defendant objected, arguing that permitting A.D. to testify outside her presence
would violate her “right to confrontation under New Hampshire law.”

¶8 At the hearing on the motion, a licensed mental health counselor
who had been treating A.D. in therapy for more than a year testified that when
A.D. experiences trauma she is “very quick to revert to . . . primitive trauma
responses.” The counselor testified that her sense was that if A.D. were to see
her mother she would have “a really strong response,” would “immediately
assume that she was going back into her mother’s custody,” and “would both
have difficulty answering questions and understanding what’s being asked of
her.” The Superior Court (Howard, J.) granted the State’s motion. The trial
court adopted the analysis set forth in Maryland v. Craig, 497 U.S. 836 (1990),
“accept[ing] that” this court “would likely adopt the same test in this scenario”
because we “already adopted the test” in State v. Hernandez, 159 N.H. 394
(2009). The trial court applied the test set forth in Craig and made
“particularized findings specific to” the “four essential components of
confrontation” — physical presence, the witness’s oath, cross-examination, and
the observation of demeanor by the trier of fact. See Craig, 497 U.S. at 846.

¶9 First, the trial court found that the witness would be administered
the oath. Second, it found that defense counsel would “have the ability to
cross-examine the witness,” either by being “physically present in the room
with the witness, or to question from the courtroom.” Regarding observation of
demeanor by the trier of fact, the court found that because the witness “will be
on the video screen,” the trier of fact “can make all of the same observations
that it can make as if the witness was in the courtroom.” Finally, regarding
physical presence, the trial court found that there was “an 85 to 90 percent
chance that [A.D.] will, essentially, shut down and not be able to communicate,
that she’ll have a visceral trauma response to being present with her mother.”
Thus, based on “an important public policy to avoid that kind of reaction, to
avoid additional injury to the child, to cause setbacks in the child’s emotional
development, in light of the abuse that she has allegedly experienced in her
life,” the court determined that it was “necessary . . . to protect [A.D.] from the
presence of her mother when she testifies.”

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 [¶10] Following a four-day jury trial, the defendant was convicted of both
first-degree assault and second-degree assault. This appeal followed.

II. Analysis

¶11 On appeal, the defendant argues that the trial court erred by: (1)
allowing A.D. to testify remotely outside the defendant’s presence; (2) admitting
evidence of uncharged allegations under New Hampshire Rule of Evidence
404(b); (3) finding A.D. competent to testify; and (4) failing to apply the correct
standard when reviewing confidential records in camera.

A. Confrontation Clause

¶12 The defendant first argues that allowing A.D. to testify outside of
the defendant’s presence violated her confrontation rights under the State and
Federal Constitutions. See N.H. CONST. pt. I, art. 15; U.S. CONST. amend. VI.
We consider the defendant’s argument under the New Hampshire Constitution
first, see State v. Ball, 124 N.H. 226, 231 (1983), and refer to federal law only if
it aids our analysis. See id. at 233.

¶13 The New Hampshire Constitution provides that an individual
accused of a crime “shall have a right . . . to meet the witnesses against him
face to face.” N.H. CONST. pt. I, art. 15. The legal principles involved in
constitutional interpretation are well-established. Warburton v. Thomas, 136
N.H. 383, 386 (1992). In construing a provision of the constitution, we must
look to its purpose and intent. Id. at 386-87. We assess not only “the natural
significance of the words used by the framers,” but also the historical context
in which the language was used in light of the surrounding circumstances
when it was adopted. See State v. Mack, 173 N.H. 793, 801 (2020).

Reviewing the history of the constitution and its amendments is
often instructive, and in so doing, it is the court’s duty to place itself
as nearly as possible in the situation of the parties at the time the
instrument was made, that it may gather their intention from the
language used, viewed in light of the surrounding circumstances.
The language used by the people in the great paramount law which
controls the legislature as well as the people, is to be always
understood and explained in that sense in which it was used at the
time when the constitution and the laws were adopted.

Additionally, when interpreting the New Hampshire
Constitution, we often look to interpretations of comparable state
and federal constitutional provisions in order to inform and guide
our analysis. Interpretations by other courts are most persuasive
when the language of the constitutional provision at issue is similar
to the wording in our constitution.

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Id. at 801-02 (quotations and citations omitted). Our review of a constitutional
challenge is de novo. See State v. Maga, 166 N.H. 279, 282 (2014).

¶14 We begin by determining what the particular words “meet the
witnesses against him face to face” meant in 1784 when that language was
adopted in New Hampshire. “Meet” was defined as “To come face to face,” and
“To meet” meant “To encounter; to close face to face.” 2 S. Johnson, A
Dictionary of the English Language 122 (4th ed. 1773). “Face to Face” was
defined as “When both parties are present,” and “To face” meant “To meet in
front.” 1 S. Johnson, A Dictionary of the English Language 124 (4th ed. 1773).
“Present” meant “Not absent; being face to face; being at hand.” 2 S. Johnson,
supra at 407. Thus, under the literal meaning of the words, Part I, Article 15
mandates that an individual accused of a crime has the right to be in the
presence of and face the witnesses testifying at trial. That language has
remained unchanged to the present time.

¶15 When the framers of the New Hampshire Constitution chose the
language of Part I, Article 15, several other states had constitutions containing
language that an individual accused of a crime had a right “to be confronted
with” or “to confront” witnesses. See Com. v. Bergstrom, 524 N.E.2d 366, 371
n.9 (Mass. 1988) (referencing the constitutions of Virginia, Pennsylvania,
Delaware, Maryland, North Carolina, and Vermont). “The Massachusetts
Declaration of Rights, which was adopted after these documents, was the first
to use the language ‘to meet the witnesses against him face to face.’” Id.
“Presumably, the framers of [the Massachusetts] Constitution were aware of
the other States’ provisions and chose more explicit language to convey
unequivocally their meaning.” Id.

¶16 Because New Hampshire modeled much of its constitution on the
constitution adopted by Massachusetts four years earlier, and the
Massachusetts Constitution contains a nearly identical provision regarding a
defendant’s right to confrontation, “we give weight to the interpretation given
that provision by the Massachusetts Supreme Judicial Court.” Mack, 173 N.H.
at 802 (quotation and brackets omitted); see Lawrence Friedman, The New
Hampshire State Constitution 69 (2d ed. 2015) (“The framers of the 1784
constitution based [Part I, Article 15] on the Part I, Article 12 of the
Massachusetts Constitution of 1780.”). It is important to note, however, that
we rely on such precedent merely for guidance and do not consider our results
bound by it. See Mack, 173 N.H. at 802.

¶17 The Massachusetts Supreme Judicial Court’s decision in
Commonwealth v. Bergstrom is directly on point. In Bergstrom, the court
considered whether permitting child witnesses to testify through electronic
means during a criminal trial outside the presence of the defendant and of the
jury complied with the guarantee in the Massachusetts Declaration of Rights
that “[e]very subject shall have a right . . . to meet the witnesses against him

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face to face.” Bergstrom, 524 N.E.2d at 371 (emphasis omitted). Prior to trial,
the trial court found that the children would “suffer psychological trauma if
required to testify in front of their father in a face-to-face confrontation” and
allowed the children to give their testimony in a room separate from the
courtroom via simultaneous closed circuit television transmission. Id. at 369-
70 (quotation omitted).

¶18 The Supreme Judicial Court reversed. Id. at 378. The court
observed that “[c]onstitutional language more definitively guaranteeing the
right to a direct confrontation between witness and accused is difficult to
imagine.” Id. at 371. The court determined that “[t]he plain meaning of
assuring a defendant the right ‘to meet the witnesses against him face to face’
is that the accused shall not be tried without the presence, in a court of law, of
both himself and the witnesses testifying against him.” Id. As the court
reasoned, “To interpret the words of [the constitution’s] mandate as requiring
only that the defendant be able to see and hear the witness renders
superfluous the words ‘to meet’ and ‘face to face.’” Id.

¶19 The court emphasized that it had never interpreted the accused’s
right “to meet” a witness against him “face to face” “as permitting introduction
of an available witness’s testimony outside a defendant’s presence.” Id. at 373.
The court noted that the constitutional mandate “states a great principle of
government for the security of liberty and the ascertainment of truth in
prosecutions for crime.” Id. (quotation omitted).

¶20 We have likewise characterized the right to confrontation as “one of
the basic safeguards of liberty.” State v. Cook, 135 N.H. 655, 661 (1992)
(quotation omitted). The constitutional right to confront adverse witnesses is
fundamental and of such importance that the State’s interest in protecting a
certain class of witnesses must fall before the right of the accused to seek out
the truth in the process of defending himself. See State v. Howard, 121 N.H.
53, 58 (1981). Although the right is not absolute, we have recognized few
exceptions. See State v. Christensen, 135 N.H. 583, 585 (1992); see, e.g., State
v. Gabusi, 149 N.H. 327, 332 (2003) (explaining that hearsay statements
“ordinarily do not violate a defendant’s right to confront witnesses so long as
they bear particularized guarantees of trustworthiness, or fall within a firmly
rooted hearsay exception” (quotation and citation omitted)); State v. Peters, 133
N.H. 791, 796 (1991) (holding that a video tape deposition of a witness taken in
the presence of the defendant may subsequently be admitted at trial if the trial
court makes a specific finding, at the time of trial, that the witness continues to
be unavailable to testify in the presence of the defendant).

¶21 We hold that Part I, Article 15 clearly and unambiguously requires
a face-to-face confrontation between the accused and the witness. Given this
conclusion, we clarify that prior intimations in our case law — drawn from
federal cases — that a right to direct confrontation is merely a “preference”

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does not comport with state law. See, e.g., Hernandez, 159 N.H. at 403 (citing
Peters, 133 N.H. at 794); Peters, 133 N.H. at 794 (quoting Craig, 497 U.S. at
849). Further, we consider the test set forth in Maryland v. Craig as limited to
challenges brought solely under the Sixth Amendment to the United States
Constitution. Cf. Hernandez, 159 N.H. at 404 (advising in dicta that Craig
provides “guidance” for proceedings involving challenges under the State
Constitution’s Confrontation Clause).

¶22 Here, where the witness testified from a location outside the
presence of the defendant and could not see the defendant while she was
testifying, there was no face-to-face meeting, thereby violating the plain
meaning of Part I, Article 15. Although we are sympathetic to the trial court’s
concern for the child witness, we have no authority to ignore the plain
language of the State Constitution and override the accused’s constitutional
right to face-to-face confrontation. See Richard v. Governor, 177 N.H. ___, ___
(2024), 2024 N.H. 53, ¶18 (explaining that it is beyond our authority to add
words to the constitution that the framers did not see fit to include); see also
Bergstrom, 524 N.E.2d at 377 (“The right of the accused to be tried in the
manner which our Constitution guarantees cannot dissolve under the
pressures of changing social circumstance or societal focus.”). In light of our
conclusion that the defendant was denied her right to confront the witness
“face to face” in accordance with the State Constitution, we need not address
her arguments under the Federal Constitution. See Ball, 124 N.H. at 232.

B. Harmless Error

¶23 Because we conclude that the defendant’s confrontation right was
violated, we next consider whether reversal is required. See State v. Hall, 152
N.H. 374, 379 (2005). The State argues that, should we find error in the trial
court’s Confrontation Clause ruling, any such error was harmless beyond a
reasonable doubt. The State asserts that even if A.D.’s testimony was stricken
from the record, “there was ample evidence to conclude beyond a reasonable
doubt that the defendant committed first-degree assault by not seeking medical
attention for [A.D.’s] head wound sooner and committed second-degree assault
by binding her arms.”

¶24 To establish harmless error, the State must prove beyond a
reasonable doubt that the error did not affect the verdict. State v. Rouleau, 176 N.H. 400, 407 (2024), 2024 N.H. 2, ¶20. This standard applies to both the
erroneous admission and exclusion of evidence. Id. To determine whether the
State has proven beyond a reasonable doubt that an error did not affect the
verdict, we must evaluate the totality of the circumstances at trial. Id.

¶25 The factors that we consider in assessing whether an error did not
affect the verdict include, but are not limited to: (1) the strength of the State’s
case; (2) whether the admitted or excluded evidence is cumulative or

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inconsequential in relation to the strength of the State’s case; (3) the frequency
of the error; (4) the presence or absence of evidence corroborating or
contradicting the erroneously admitted or excluded evidence; (5) the nature of
the defense; (6) the circumstances in which the evidence was introduced at
trial; (7) whether the court took any curative steps; (8) whether the evidence is
of an inflammatory nature; and (9) whether the other evidence of the
defendant’s guilt is of an overwhelming nature. Id. at 407-08.

¶26 Applying the harmless error analysis to the first-degree assault
conviction, we conclude beyond a reasonable doubt that the victim’s testimony
did not affect the verdict. The defendant was found guilty of recklessly causing
serious bodily injury to A.D. by failing to seek medical attention for a wound on
A.D.’s head, resulting in severe infection and/or scarring. At trial, there was
overwhelming evidence that the defendant’s failure to seek medical attention
for A.D.’s wound resulted in severe infection.

¶27 The jury heard from the emergency room doctor who was working
on the day A.D. was brought to the hospital. He testified that A.D. had “a
horrible looking wound that looked festered and infected, and just something
that you could not possibly miss.” In his opinion, given the amount of swelling
and the extent of the wound, it was “at least a week old.” The jury also heard
testimony from the pediatrician who treated A.D. in the hospital that A.D. had
“a very large head wound” which “definitely looked infected because the yellow
material there was all actually pus[] that was draining from the area, and it
looked like it had been there for at least several days, potentially a week.” The
pediatrician testified that had the wound been treated earlier, it “most likely”
would not have gotten to the level that it did. Instead, the infection caused
“swelling in the tissue and caus[ed] the tissues to spread wider,” and the
wound “being open and left open for some period of time, allowed multiple
bacteria” to enter the wound and “caused more tissue damage and swelling.”

¶28 In addition, the jury heard from the registered nurse, an expert in
wound care, who assessed A.D.’s wound at the hospital. She testified that
there was “a lot of necrotic tissue present” and that the head wound had been
there for “[p]erhaps a matter of weeks.” Further, a doctor who, at the time of
the underlying incident was the general surgeon at the hospital, testified as an
expert in general medicine, surgery, and wound care. When A.D. was in the
hospital, he was consulted to remove the eschar from A.D.’s head wound. The
doctor explained that an open wound, “especially one that’s been there for a
long time,” will develop an eschar, “which is a dense area of dead tissue and
fluids that form sort of a really thick scab that adheres to the wound, and
unless [it] is removed, the wound will never heal.” He testified that three
bacteria were present in A.D.’s wound, including Streptococcus,
Staphylococcus, and Pseudomonas, which indicated that “the wound had been
present for quite some time.” In the doctor’s opinion, the wound would have
been present on A.D.’s head for “weeks” before coming to the hospital. His

8
opinion was based on the fact that the wound was “all the way down into the
subcutaneous tissue,” which “takes a fairly long time to do.”

¶29 Given the expert medical testimony discussed above, even if A.D.’s
testimony were stricken from the record, there was other evidence of an
overwhelming nature that the defendant was guilty of first-degree assault.

¶30 Regarding the second-degree assault charge, however, we cannot
conclude beyond a reasonable doubt that the victim’s testimony did not affect
the verdict. The defendant was convicted of second-degree assault for
knowingly causing bodily injury to A.D. by binding A.D.’s arms for a prolonged
period of time, causing abrasions and/or scarring to A.D.’s arms. At trial, A.D.
testified that when she was at the hospital she had scars on her wrists and
face that were caused by being duct taped to a wall in the closet by her mother
or tied with belts. The State argues that even without A.D.’s testimony, there
was “ample evidence to conclude beyond a reasonable doubt that the defendant
. . . committed second-degree assault by binding her arms.” However, A.D.’s
testimony provided the only direct evidence that the defendant was responsible
for binding her arms.

¶31 Accordingly, we affirm the first-degree assault conviction, reverse
the second-degree assault conviction, and remand. Because the remaining
issues raised by the defendant may arise on retrial, we address those
arguments.

C. Uncharged Conduct

¶32 The defendant argues that the trial court erred in admitting
evidence of uncharged conduct, “particularly evidence that [the defendant]
taped A.D.’s mouth shut and forced her to take cold showers and stand for
extended periods of time.” The defendant asserts that the State failed to satisfy
the requirements of New Hampshire Rule of Evidence 404(b). Specifically, the
defendant argues that the first and third prongs of Rule 404(b)(2) were not met.

¶33 The State counters that the uncharged conduct evidence was
directly related to a disputed issue: why A.D. delayed disclosure of the abuse.
Given the defendant’s theory that disclosure was delayed because the
allegations were suggestively planted in A.D.’s mind, the State argues that the
evidence supported a different explanation — that A.D. did not disclose “out of
fear of retribution and, thus, waited until she was in a safe situation to
disclose.”

¶34 Rule 404 provides in part:

Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show that the person acted in

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 conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.

N.H. R. Ev. 404(b)(1). Evidence of other crimes, wrongs or acts is admissible
only if: (1) “it is relevant for a purpose other than proving the person’s
character or disposition”; (2) “there is clear proof, meaning that there is
sufficient evidence to support a finding by the fact-finder that the other crimes,
wrongs or acts occurred and that the person committed them”; and (3) “the
probative value of the evidence is not substantially outweighed by the danger of
unfair prejudice.” N.H. R. Ev. 404(b)(2). The State bears the burden of
demonstrating the admissibility of prior bad acts. State v. Clark, 174 N.H. 586,
593 (2021).

¶35 We review challenges to the trial court’s evidentiary rulings under
our unsustainable exercise of discretion standard. State v. Tufano, 175 N.H.
662, 665 (2023). For the defendant to prevail under this standard, she must
demonstrate that the trial court’s decision was clearly untenable or
unreasonable to the prejudice of her case. See id. In applying our
unsustainable exercise of discretion standard of review, we determine only
whether the record establishes an objective basis sufficient to sustain the
discretionary judgment made. State v. Letarte, 169 N.H. 455, 461 (2016).
Because the trial court ruled on the admissibility of the challenged evidence
before trial, we consider only the arguments and evidence presented at the
pretrial hearing. State v. Nightingale, 160 N.H. 569, 573 (2010).

¶36 Following a hearing, the trial court found that “the evidence is not
being offered for a propensity purpose but is instead offered to rebut the
defense’s suggestibility argument and to provide an explanation for A.D.’s
delayed disclosure.” Although the court recognized that the evidence was
“certainly prejudicial to the defendant,” it determined that any prejudice did
not substantially outweigh the probative value and that “any unfair prejudice
to the defendant can be mitigated with an appropriate jury instruction as to the
limited purpose for which they may consider the uncharged conduct.”

¶37 On appeal, the defendant argues that the court erred in finding the
State met its burden on the first prong of the Rule 404(b) analysis, asserting
that the “probative value of the evidence” to rebut the defendant’s theory of
suggestibility and to explain A.D.’s delayed disclosure “was minimal.” However,
we agree with the State that under the first prong of the Rule 404(b) analysis,
the strength of the probative value of the evidence “has no bearing on whether
the evidence was relevant for a purpose other than propensity.” To satisfy the
first prong of the Rule 404(b) analysis, the uncharged conduct evidence must
have some direct bearing on an issue actually in dispute and have a clear
connection to the evidentiary purpose for which it is offered. See State v.
Colbath, 171 N.H. 626, 633 (2019). It is evident from the record before us that

10
the explanation for A.D.’s delayed disclosure was actually in dispute and that,
as the trial court found, the evidence had a clear connection to rebut the
defendant’s theory of suggestibility.

¶38 The defendant also argues that there was error under the third
prong of the Rule 404(b) analysis because, given that “the uncharged conduct
evidence is very similar” to the charged crimes, there was a “substantial risk
that the jury would conclude that [the defendant] committed the charged acts
because she had abused A.D. in other similar ways on other occasions.” The
defendant made this same argument in her objection to the State’s motion, and
the trial court rejected it. The trial court is in the best position to gauge the
impact of prejudicial testimony and what steps to take to remedy that
prejudice. Clark, 174 N.H. at 590. Accordingly, we give the trial court broad
latitude when ruling on the admissibility of potentially unfairly prejudicial
evidence. Id. Because the record establishes an objective basis sufficient to
sustain the discretionary decision made, we hold that the trial court’s ruling is
not clearly untenable or unreasonable. See State v. Roy, 167 N.H. 276, 284
(2015).

D. Competency

¶39 The defendant argues that the trial court “plainly erred in finding
A.D. competent.” (Capitalization omitted.) The day before trial, the defendant
filed a motion requesting that the trial court determine whether A.D. was
competent to testify as a witness. In support, the defendant argued that “[t]he
State has raised the possibility that its child witness, A.D. age 9, may be
unable to understand questions or compose a coherent response when faced
with questions about her alleged abuse at the hands of her mother” and,
therefore, under those circumstances, the court should voir dire A.D. to
determine her competency under New Hampshire Rules of Evidence 601 and
603.

¶40 At the start of trial the following day, the court agreed to question
A.D. Following that colloquy, the trial court found that A.D. was competent to
testify. The court found that: A.D. “clearly understands the difference between
telling the truth and telling a lie and can appreciate the oath”; she was “able to
articulate fundamentals of her life, including her school, her friends, her
favorite subjects, things she likes to do at school”; she did not appear to have
“any difficulty with narrating, any difficulty with remembering details of her
life”; and there was no question in the court’s mind “that [A.D.] does have the
capacity at age nine to articulate appropriate to her age and to narrate and
remember and convey her recollections.” The defendant did not object to the
court’s competency determination.

¶41 On appeal, the defendant argues that the record does not support a
finding that A.D. was competent to testify under New Hampshire Rule of

11
Evidence 601. Because the defendant did not object to the competency finding,
she seeks plain error review. To find plain error: (1) there must be an error; (2)
the error must be plain; (3) the error must affect substantial rights; and (4) the
error must seriously affect the fairness, integrity or public reputation of judicial
proceedings. State v. Hodges, 176 N.H. 751, 754 (2024), 2024 N.H. 44, ¶9; see
Sup. Ct. R. 16-A.

¶42 Every person is presumed competent to be a witness. See N.H. R.
Ev. 601(a). This presumption may be overcome “if the court finds that the
witness lacks sufficient capacity to observe, remember and narrate as well as
understand the duty to tell the truth.” N.H. R. Ev. 601(b). Whether a witness
is competent to testify is a question of law for the trial court. State v. Horak, 159 N.H. 576, 579 (2010). When the record supports the court’s determination
of competency, we will not disturb that determination absent an unsustainable
exercise of discretion. Id. Because so much depends on the trial court’s
firsthand observations of the witness, its conclusion that the witness is
competent is entitled to great deference. Id. We have reviewed the record and
determine that it supports the findings made by the trial court and, therefore,
we conclude that the court did not unsustainably exercise its discretion.

E. In Camera Review

¶43 Finally, the defendant argues that the trial court “may have erred in
failing to disclose material in the DCYF and Community Partners’ records
reviewed in camera.” (Capitalization omitted.) Prior to trial, the defendant filed
an assented-to motion for in camera review of DCYF records and counseling
records from Community Partners related to A.D. Following its review of the
Community Partners records, the trial court determined that they did not meet
the “‘essential and reasonably necessary’” test for disclosure, citing State v.
Gagne, 136 N.H. 101 (1992). The court explained that the records “involve
counseling and other therapies provided to A.D. both before and after the time
period encompassed in the charged offenses” and that “[a]lthough the records
occasionally make reference to the nature and existence of this case, none of
the records bear directly or indirectly on any issue in this case, including A.D.’s
credibility.” Following its review of the DCYF records — including “investigative
reports, notes, assessments, police reports, interviews, medical records, and
other documents relating to” A.D. and the defendant — the court determined
that twelve pages of the documents and a video interview of A.D. taken at the
hospital met the “essential and reasonably necessary” test for disclosure.

¶44 On appeal, the defendant argues that the trial court erred by
applying “the wrong standard” to its in camera review when it relied on Gagne
instead of our decision in State v. Girard, 173 N.H. 619, 628 (2020), in which
we clarified the meaning of the “essential and reasonably necessary” standard.
However, given that our decision in Girard was not issued until five months

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after the trial court conducted its in camera review in this case, the court did
not have the benefit of that opinion.

¶45 In Girard, we explained that under the “essential and reasonably
necessary” standard, the trial court must determine if material and relevant
evidence is in fact contained in the records. Id. at 628. Here, the trial court
determined that the records did not bear directly or indirectly on any issue in
the case. We agree with the State that, in accord with the trial court’s
reasoning, the records were not material or relevant and, therefore, the court
“applied the correct standard in substance, even if not in form.” See State v.
Williams, 173 N.H. 540, 543 (2020) (explaining that the interpretation of a trial
court order presents a question of law, which we review de novo).

¶46 The defendant requests that, in the event the trial court did not
apply the wrong standard, we review the “remainder of the DCYF records and
all of the Community Partners records” to determine whether the court erred in
failing to disclose additional records. We review a trial court’s ruling on the
management of discovery to determine whether its decision is sustainable.
Hodges, 176 N.H. at 757, 2024 N.H. 44, ¶18. When a defendant argues on
appeal that a trial court’s ruling regarding the disclosure of privileged records
is unsustainable, we must review the same records and determine whether the
ruling was clearly unreasonable or untenable to the prejudice of her case. See
id. After reviewing the records that were examined by the trial court, we
conclude that the court’s decisions regarding these records were not clearly
unreasonable or untenable to the prejudice of the defendant’s case. Id.
Accordingly, we find no error.

Affirmed in part; reversed
in part; and remanded.

BASSETT, DONOVAN, and COUNTWAY, JJ., concurred.

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