State v. Girard
| Citation | 247 A.3d 358,173 N.H. 619 |
| Decision Date | 16 October 2020 |
| Docket Number | No. 2018-0608,2018-0608 |
| Parties | The STATE of New Hampshire v. Stephen GIRARD |
| Court | Supreme Court of New Hampshire |
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.
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.
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: 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.
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.
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, 986 A.2d 547 (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:
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, 986 A.2d 547.
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, 986 A.2d 547. We cautioned that no single factor is dispositive on the question of relatedness. Id. at 552, 986 A.2d 547. 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 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...
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