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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 o n the remaining indece nt 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. H e 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 a dditional material. We2

conclude that the trial court’s ruling on the defendant’s mot ion 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, w e 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 th e facts necessary to decide the issues before us

. In September 2016, the minor victim disclosed to her mother that the def e ndant

had sent a picture of his erect penis to her

. W hen the victim was subsequently interviewed at the Child Advocacy Center, she reported that the defendant had

also masturbated in front of her. T he defendant was indicted on two counts of indecent exposure a s 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 account s of the victim’s mother, w ithout her permission, and changed the passwords o n the accounts. These acts resulted in the
computer

- related charges. Th e defendant’s e

- mail communication to the

mother’s cousin and his unauthorized access to the mother’s computer

accounts resulted in t he witness tampering charges.

In a pretrial ruling addressing a pending motion in li mine 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. T he 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 def endant’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 defenda nt’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.3

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.

I n 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 w hether 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.

Pr ior 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 appe ars 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 i n [Case 2].

The co ur t therefore sua sponte ordered disclosure of certain re cords to the parties in this case

. A fter 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 appeale d

.

II

A

The defendant first argues that the trial court erred when it denied his

motion to sever the indecent exposure charges f r om the witness tampering and
computer

- related ch arges. 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, 5554

(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 cri minal 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

w ith 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.

W hether 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 u nderlying charged conduct and the evidence to b e used to prove the charges

, ” Brown , 159 N.H. at 551.

In Brown , w e set forth five factors that trial court s 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 t he joint trial of offenses may benefit both the

State and the def

e ndant. Id . Joint trials avoid the duplication of evidence and may reduce inconvenience to vic tims and witnesses

. Id . The potential benefits5

to the def

e ndant m ay inc l ud e the faster disposition of pending charges, the possibil i ty of concurrent sentences i n the event of conviction

, and protec tion agai nst enhanced sentencing that might occur from separ a te t rials

. 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 st ep

by

- step review of the factors set forth in Brown , the def endant attempts to
rebut the trial co u rt’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 i ndecent exposure indictments alleged acts that occurred between January 1, 2016 and Sept ember 11, 2016; in contrast, the witness

t a mpering and computer

- related indic tments alleged acts that occurred on or

about S e pt e mber 29, 2016. T he trial court recognized that the acts that

resulted in the indecent exposure charges occurred earlier than th ose 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 witnes s tampering offenses would not have occurred absent the accusations of indecent exposure.” The defendant c hallenges this analysis, arguing : “The question is not whether a witness’s allegations about one offense are somehow connected to another offense, bu t 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 lea rned 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 as sault and witness t a mpering charges were conn e cted , in part

, because acts leading to witness t a mpering charges would n o t have occurred in absence of ass a ult)

.

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 vi ctim’s disclos u re and

, as a result

, beca me the target of the threats underlying the witness tampering charges and6

the victim of the charges of the unauthorized use of a computer. In addition,

t rial 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 defend ant’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 co nnections between the charges , it supports joinder

.

It appears undisputed that there is little duplica tion 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, ev idence related to the witness tampering and
computer

- related charges overlapped. Additionally, t estimony by the same police officer was relevant to both the indecent exposure charges and the

witness t ampering charges.

Given the close relationship amon g the offenses with re spect to both the underlying charged con duct and the evidence, in c luding witness testimony, to be used to prove the c harges , we conclude that the trial court did not unsustainably exercise its discretion when it denied the def endant’s mo tion 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 pa rty 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 the7

statutory privilege that governs counseling records, the c ourt 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 ar gues 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 d efense is rooted in the constitutional right to due process. See State v.

Laurie , 139 N.H. 325, 327 (1995). In contrast, the psycho therapist

- 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 3 30

- 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 again st 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 th e 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 standar d.

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

,

2 The 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 3 30

- A:32

.8

116 N.H. 731, 732

- 33 (1976), but we have more recently employed the same language when reviewing the non disclosure 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 th at 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 a sse rting , 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 demonstra te 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, th at, 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 privile ged 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 U nited 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.9

We note that, her e, 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 a s “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 , 39 9 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 rest riction. 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, 25 6 (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 t hat 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 indec ent 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 reco rds 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 misu se 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

r eview 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 indecent10

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

reasonable doubt.

Affirmed in part; and remanded

.

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