concluding that the defendant’s argument that there was insufficient evidence of penetration was not preserved where the defendant argued before the trial court “that there was insufficient evidence of his guilt because [the victim’s] testimony was ‘inconsistent,’ not that the State had failed to prove digital penetration”
How later courts described this case
- concluding that the defendant’s argument that there was insufficient evidence of penetration was not preserved where the defendant argued before the trial court “that there was insufficient evidence of his guilt because [the victim’s] testimony was ‘inconsistent,’ not that the State had failed to prove digital penetration”
- holding that defendant’s conviction on aggravated felonious sexual assault charge in the absence of sufficient evidence of penetration amounted to a plain error affecting the defendant’s substantial rights
- holding that conviction on felony charge of aggravated felonious sexual assault based on insufficient evidence amounted to plain error affecting the defendant’s substantial rights
- determining that insufficient evidence to support defendant’s conviction was “error” for purposes of plain error test
Written by the judges who cited it.
The opinion
LYNN, J.,
concurring specially. I join fully in the majority’s thoughtful opinion in this case. I write separately, however, to address an issue that has troubled me for some time, that being our repeated use of the phrase “essential and reasonably necessary” as the standard for determining whether otherwise privileged materials, such as counseling records of the alleged crime victim, must be disclosed to the defense for use at trial.
We first used the phrase to describe the standard for disclosure of privileged materials to a criminal defendant in State v. Farrow, 116 N.H. 731, 733 (1976). In Farrow , we were “faced with the question whetherf, and the extent to which,] the defendant’s sixth amendment right to confrontation entitle[d] him to have access to and to use information which falls within the scope of [doctor/psychologist patient] privileges for the purpose of cross-examination and impeachment.” Farrow, 116 N.H. at 733 . After rejecting the proposition that the United States Supreme Court’s opinion in Davis v. Alaska, 415 U.S. 308 (1974), gave the criminal defendant “a right to the blanket use of privileged information,” we held that
*386 the defendant’s right is limited to the use of such materials as are found to be essential and reasonably necessary to permit counsel adequately to cross-examine for the purpose of showing unreliability or bias. To prevent abuse and to protect the witnesses from unnecessary embarrassment the trial court should examine with counsel the records and other materials in question and determine what parts, if any, the defendant will be permitted to use.
Id. (emphasis added); see State v. Thresher, 122 N.H. 63, 72 (1982) (holding that trial court properly refused to permit disclosure of privileged communications, in part, because “use of the privileged information was not essential to the defense”); State v. Kupchun, 117 N.H. 412, 415 (1977) (citing Farrow when stating “the [physician/psychologist patient] privileges are not absolute and must yield when disclosure of the information concerned is considered essential”).
In State v. Gagne, 136 N.H. 101, 104 (1992), we set forth the two distinct, yet intertwined, issues involved when a defendant desires to obtain privileged information: how the defendant can obtain in camera review by the trial court, and access to the information for use at trial. It is with regard to the second issue that we ascribed the “essential and reasonably necessary” standard developed in Farrow. See Gagne, 136 N.H. at 104 . We have since repeated the phrase “essential and reasonably necessary to the defense at trial” more or less routinely in numerous cases involving a defense request for another’s privileged or confidential materials, including today’s decision. See, e.g., State v. Eaton, 162 N.H. 190, 195 (2011); State v. Sargent, 148 N.H. 571, 573 (2002); State v. McLellan, 146 N.H. 108, 113 (2001); State v. Hoag, 145 N.H. 47, 50 (2000); State v. Graham, 142 N.H. 357, 364 (1997). However, we have never elaborated upon or explained what this phrase means, perhaps because post-Gagne, the cases before us that related to a criminal defendant’s ability to access another’s privileged or confidential materials, by and large, involved the trial court’s decision to deny a defense request for in camera review, rather than a decision on the disclosure of the information for defense use at trial. 1 But see Sargent, 148 N.H. at 573-74 .
Most recently, in Petition of State of New Hampshire (State v. MacDonald), 162 N.H. 64, 70 (2011), we held that the trial court erred by granting the State and the defense access to the alleged victim’s medical and mental health records, without first conducting an in camera review to *387 ascertain what, if any, records should be disclosed. While we referred to the burden of the party seeking disclosure to establish an “essential need” for the information contained in the privileged records, see id. (“essential need” relates to whether the targeted information is unavailable from another source and whether a compelling justification exists for disclosure), it is not clear whether we intended this language to describe a burden the same as, or in some way different from, the “essential and reasonably necessary” standard recited in Farrow and its progeny.
Today, I focus only on my linguistic concerns about the phrase “essential and reasonably necessary to the defense at trial.” An ordinary understanding of “essential” includes “necessary,” “important in the highest degree,” and “something necessary, indispensable, or unavoidable.” WEBSTER’S Third New International Dictionary 777 (unabridged ed. 2002). Thus, if certain information is “essential” to a criminal defendant’s defense, then it is, by common understanding, “necessary” to the defense. If this were all there was to it, I could ignore the needless use of duplicative words as a minor annoyance, perhaps attributable to the chronic affliction of lawyers (who later become judges) for frequently indulging their impulse to use multiple words when one word will do. 2
But when the word “reasonably” is thrown into the mix, the problem becomes more substantive, for this word modifies “necessary” in a way that gives it a more expansive meaning than “essential.” Hence, while all information that is “essential” to the defense is also “reasonably necessary” to the defense, the converse is not true: there may be some information that is “reasonably necessary” to the defense that falls short of being “essential” to the defense.
I would be open to considering adoption of either standard (essential or reasonably necessary) as the one that should govern this issue, or to distinguishing the meaning and application of each term, “essential” and “reasonably necessary,” if that is appropriate. The critical point, in my view, is that we should adopt a dear standard for the guidance of defendants, lawyers and trial judges. Because this issue is not raised in the present case, the court’s opinion understandably does not address it. However, I believe this is an area of the law that merits clarification as soon as the issue is presented in an appropriate case.
In addition to the above cited cases, see generally State v. Gaffney, 147 N.H. 550 (2002); State v. Pandolfi, 145 N.H. 508 (2000); State v. Puzzanghera, 140 N.H. 105 (1995); State v. Locke, 139 N.H. 741 (1995); State v. Taylor, 139 N.H. 96 (1994).
I do not profess to be immune from this affliction.