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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2008-095 THE STATE OF NEW HAMPSHIRE v. BRIAN A. SHEPHERD Argued: June 11, 2009 Opinion Issued: August 4, 2009 Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant. DUGGAN, J. Following his conviction for aggravated felonious sexual assault, see RSA 632-A:2, I(b) (Supp. 2008), the defendant, Brian A. Shepherd, appeals the decision of the Superior Court (Nadeau, J.) denying his motion for a new trial. We reverse and remand. The record supports the following. The defendant and E.T. attended high school together and became friends. They never dated, but E.T. was interested in dating the defendant. The defendant eventually moved to Massachusetts to live with his father, but the defendant and E.T. saw each other occasionally.

On December 1, 2003, the defendant was in New Hampshire visiting his mother. He made arrangements to see E.T. E.T., the defendant, and some other friends went to the defendant's mother's house, where they watched television, smoked marijuana, and had dinner. They purchased beer and went to Matthew MacDuff's deceased father's trailer. After arriving at the trailer, they smoked marijuana while waiting for other guests. Four guests then left to purchase more beer, leaving the defendant and E.T. at the trailer. E.T. and the defendant began kissing on the couch, and E.T. expressed an interest in having sex with the defendant, but they did not have a condom. Prior to that evening, E.T. and the defendant had spoken several times about having sex. They agreed that if the defendant obtained a condom, they would have sex later that night. At around 10:00 p.m., several other guests arrived and everyone began drinking beer and playing drinking games, which involved encouraging each other to drink. They also smoked more marijuana. Everyone became intoxicated. After the drinking games, they continued talking and watching television for approximately three hours, socializing in the living room and the bathroom. E.T. testified that she drank several beers and smoked marijuana, causing her memory of the evening to be impaired. She testified that after socializing in the bathroom, she returned to the living room to sit on the couch. The defendant "got up to go get another beer, and [she] watched him walk into the kitchen, and that was it." E.T. testified that she could not remember anything after that moment. Her next memory occurred when she woke up on a bed, laying on her back, with two men in the room. She testified that one man was having vaginal intercourse with her and another man's penis was inside her mouth. She heard someone say "I think she's going to pass out," and recognized MacDuff's voice. E.T. testified that she "[c]losed [her] eyes and hoped it was some kind of bad dream." She testified that her next memory was when other people entered the bedroom: "there was lots of commotion, like the door was open, and there was lots of commotion." E.T. was unable to move at that point and did not recall getting dressed. E.T. testified that she remembered waking up again alone in the bedroom and going to find the defendant. The defendant was sleeping in another bedroom and E.T. got into the bed where the defendant and MacDuff were sleeping. The next morning, the defendant drove E.T. home. E.T. testified that after she went home, she began thinking about the night before and vaguely remembered the sexual activity. She initially thought the two men in the room were MacDuff and Ron Olson. She told a friend that she was adamant that the defendant was not involved. E.T. went to the Exeter Police Station and gave a statement as to what she remembered. She also complained of vaginal pain

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and went to see Dr. Gwendolyn Gladstone for a sexual assault examination and interview. On December 8, 2003, Detective Mulholland interviewed the defendant at the police station. The defendant recounted the events of the evening and stated that nothing happened in the bedroom, and that he and MacDuff went into the bedroom to check on E.T., who was passed out on the bed. As the interview progressed, the defendant stated that he received fellatio from E.T. After this interview, Mulholland believed the two men in the room were the defendant and MacDuff. Mulholland then interviewed MacDuff, who eventually indicated that the defendant had sexual intercourse with E.T. while he received oral sex. Mulholland invited the defendant to the police station to answer more questions. He asked the defendant if there was anything else he wanted to say, to which the defendant indicated that he had consensual vaginal intercourse with E.T. that evening. The defendant and MacDuff were each charged with aggravated felonious sexual assault, alleging that they engaged in sexual penetration while E.T. was "physically helpless to resist." See RSA 632-A:2, I(b). The defendant and MacDuff were tried separately. At the defendant's trial, the theory of defense was that E.T. consented to the sexual activity. The State relied upon the testimony of E.T. and Olson as evidence of what occurred in the bedroom. Olson testified that the defendant, MacDuff, and E.T. went into the bedroom after several hours of drinking. He testified that he believed the defendant and E.T. were having sex because "[t]hat's what she . . . seemed like she wanted." Olson and some other guests went to the bedroom and found the door closed and locked. Olson pushed open the door, but the defendant's foot blocked it. Olson observed the defendant having sex with E.T. while MacDuff lay on the floor. Once Olson entered the room, the defendant moved away from E.T., causing her legs to fall to the side. E.T. did not move or make any effort to cover herself. MacDuff, who testified for the defense under a grant of use immunity, said that E.T. "had been flirting with [the defendant] throughout the whole night, and pretty much just about everybody else in the house, but it was mostly focused on [the defendant] and then moved on to both [MacDuff and the defendant]." He testified, inconsistent with his prior interview, that while in the bedroom, E.T. discussed participating in sexual activity with both him and the defendant. MacDuff testified that E.T. engaged in oral sex with him and then sexual intercourse with the defendant, during which time she was alert and responsive. He testified: "I remember hearing [E.T.] fully conscious because she was making noises and enjoying herself." MacDuff testified that he then crawled to the floor and fell asleep.

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Following four days of trial, the jury returned a verdict of guilty. The trial court sentenced the defendant to serve three to six years in prison. Subsequent to the defendant's conviction and before MacDuff went to trial, counsel for the State advised MacDuff's counsel that he had learned that Dr. Gladstone had redacted portions of the report the defendant had received before trial. The State submitted an unredacted copy of the report to the Superior Court (Coffey, J.) for in camera review. The trial court found certain evidence discoverable, permitted MacDuff's defense counsel an opportunity to review the unredacted report, and ruled during MacDuff's trial that certain statements made by E.T. during direct examination opened the door to questions regarding the redacted information. Shortly after the introduction of this information, E.T. refused to participate in the trial and the charge against MacDuff was dismissed. The defendant filed a motion for in camera review of the unredacted report. The defendant further requested a hearing to examine Dr. Gladstone about the contents of the report and circumstances of the redactions. The Superior Court (Nadeau, J.) granted the defendant's requests and held a hearing. At the hearing, Dr. Gladstone testified that she regularly conducts sexual assault examinations. As part of such examinations, she uses a rape kit supplied by the New Hampshire Attorney General's Office. On December 3, 2003, she conducted an examination of E.T., and produced five pages of "progress notes." She submitted the notes to the police, but intentionally omitted the bottom half of page one and all of page two. These pages included reference to E.T.'s history of depression, her treating therapists, and her request that Dr. Gladstone delay informing her mother as "[E.T.] expects her mother to be angry with her." Dr. Gladstone omitted these pages believing that the information was privileged. She also omitted the page numbers from the report. The information contained in Dr. Gladstone's complete report resulted in the discovery of other mental health records from Deborah Addario at Seacoast Mental Health. Following the hearing, the defendant moved to set aside the verdict and for a new trial based upon the newly discovered evidence. On March 6, 2007, the trial court granted the motion, concluding: "[T]he omitted evidence led to the discovery of mental health records that provided information regarding the victim's state of mind. The defendant could have used the specific diagnoses contained in those records to rebut the victim's claim of non-consensual sexual intercourse." The trial court then granted the defendant's request for in camera review of E.T.'s mental health counseling records from a number of other sources. The trial court also granted the State's request for a Daubert hearing regarding the diagnosis contained within the records. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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In November 2007, the parties deposed Deborah Addario regarding her diagnosis of E.T. The defendant learned that an evaluation of E.T. included an assessment of "[p]oor judgment or impulsive behavior resulting in dangerous or risky activities that could lead to injury or getting into trouble, more than other youth." Addario also checked boxes on a form indicating that E.T. has certain behaviors consistent with Oppositional Defiance Disorder (ODD). ODD may include the behavior of "blam[ing] others for mistakes," but this box was not checked on the form. Because Dr. Walter Wingate approved the diagnosis of ODD, the defense then requested his treatment records of E.T. After reviewing the records, the trial court denied the defendant's request, stating: "While the doctor has diagnosed the victim with Oppositional Defiance Disorder, he specifically noted that this diagnosis did not include the criteria indicating the victim blames others for her conduct." In January 2008, the trial court issued its final order regarding the admissibility of E.T.'s mental health status and reversed itself on the motion for new trial. The trial court concluded that the records indicating that E.T. had "poor judgment or impulsive behavior" did not include a diagnosis

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