Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2018-0608

October 16, 2020

Affirmed in part; and remanded


  • Whether the trial court unsustainably exercised its discretion when it denied defendant’s motion to sever computer-related indictments from indecent exposure indictments.
  • Whether the trial court erred in declining to disclose portions of family counseling records after in camera review.


The defendant was convicted following a bench trial on two counts of indecent exposure and two counts of misuse of a computer or network. On appeal, the defendant argued that the trial court erred by: (1) determining that the charges of indecent exposure and misuse of a computer or network were logically and factually connected; and (2) determining that portions of privileged family counseling records were confidential.

Addressing the joinder issue, the Court found that the trial court did not unsustainably exercise its discretion.  Applying the five factors from State v. Brown (2009), the Court concluded that the trial court’s reliance on the fifth factor, relating to the duplication of witnesses, testimony and other evidence, was reasonable.

Relating to the review of privileged counseling records, the Court emphasized that in this case the records were not in the custody of either party. The Court stated that it appeared that the trial court did not consider whether the records contained general credibility evidence during its review, and did not consider whether the same was material and relevant. In balancing the defendant’s interest in obtaining material helpful to his defense and the interests relating to the psychotherapist-patient privilege, the Court clarified the scope of the trial court’s review under the “essential and reasonably necessary” standard in State v. Gagne (1992). The Court held that the trial court must evaluate records for general credibility evidence when determining whether or not material and relevant evidence is in fact contained in the reviewed record.  The Court affirmed the convictions relating to misuse of a computer or network, and remanded the convictions relating to indecent exposure to the trial court for further in camera review of the privileged records under the clarified standard.


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 Christopher M. Johnson, chief appellate defender, orally, for the defendant.