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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 ___________________________

Hillsborough-northern judicial district No. 2009-704

THE STATE OF NEW HAMPSHIRE v. HORACE KING Argued: September 15, 2011 Opinion Issued: November 2, 2011 Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

CONBOY, J. After a jury trial in Superior Court (Sullivan, J.), the defendant, Horace King, was convicted of two counts of aggravated felonious sexual assault. See RSA 632-A:2 (Supp. 2010). On appeal, he argues that the trial court erred in denying his supplemental motion for in camera review of the victim's, K.H.'s, medical and counseling records. We reverse and remand. The details of this child molestation case need not be set forth; it is sufficient to examine only those circumstances that surround the defendant's appeal. See State v. Hoag, 145 N.H. 47, 48 (2000).

Prior to trial, the defendant filed a motion for in camera review of certain medical and New Hampshire Division for Children, Youth and Family (DCYF) records related to K.H.'s allegations, as well as records of any counseling K.H. received since 2007. The Court (Mangones, J.) granted the defendant's motion over the State's objection. On April 24, 2009, the court issued an order permitting the parties to "review [the] DCYF material at the courthouse." Shortly thereafter, on May 6, 2009, the Court (O'Neill, J.) issued another order allowing the parties to "review the records received from the Mental Health Center of Greater Manchester . . . at the Courthouse." After reviewing the DCYF and Mental Health Center (MHC) records, which disclosed that K.H. suffered from Attention Deficit Disorder (ADD) and Oppositional Defiant Disorder (ODD), the defendant filed a supplemental motion seeking in camera review of any medical or counseling records pertaining to K.H.'s treatment for these disorders. In this motion, the defendant incorporated the arguments he made in his first request for in camera review, and further focused on K.H.'s two disorders. He also argued the records regarding K.H.'s diagnosis and treatment for ADD and ODD would likely include information that formed the basis of those diagnoses. Further, the defendant averred, the records would likely describe medications prescribed to treat her ADD and ODD and their effect on her competence as a witness. In addition, the defendant noted that the DCYF and MHC records that had been disclosed contained relevant and exculpatory material. Specifically, they exposed K.H.'s tendency to "make up stories." The records also revealed that K.H. had previously made a false allegation of sexual assault. Thus, the defendant argued that the additional requested records would likely contain additional information material and relevant to his defense; specifically, K.H.'s "tendency to lie" and her capacity to understand her obligation to tell the truth. Both the State and the Guardian Ad Litem (GAL) objected to the supplemental motion. After hearing, the Trial Court (O'Neill, J.) denied the motion, finding the defendant "failed to articulate how the requested medical records would be material to his defense." Further, the court noted the defendant had "access to information regarding K.H.'s medical conditions and ha[d] counseling records indicating what the defendant perceives to be K.H.'s inclination to lie or tell stories." The court concluded that "in light of the voluminous records already provided to the defendant," the additional records were "not material to his defense." The defendant contends the trial court erred in denying his supplemental motion for in camera review. We review the trial court's decision on the management of discovery under an unsustainable exercise of discretion

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standard. State v. Guay, 162 N.H. __, __ (decided September 20, 2011). To prevail, the defendant must show the trial court's rulings were clearly untenable or unreasonable to the prejudice of his case. State v. Sargent, 148 N.H. 571, 573 (2002). The defendant's request for an in camera review is governed by State v. Gagne, 136 N.H. 101 (1992). In Gagne, we explained that "due process considerations require trial courts to balance the State's interest in protecting the confidentiality of child abuse records against the defendant's right to obtain evidence helpful to his defense." Gagne, 136 N.H. at 105. "An in camera review of such records provides a useful intermediate step between full disclosure and total nondisclosure." Id. (quotation omitted). "[T]o trigger an in camera review of confidential or privileged records, the defendant must establish a reasonable probability that the records contain information that is material and relevant to his defense." Id. This threshold showing "is not unduly high." State v. Graham, 142 N.H. 357, 363 (1997). It requires only that a defendant meaningfully articulate how the information sought is relevant and material to his defense. Id. To do so, he must present a plausible theory of relevance and materiality sufficient to justify review of the protected documents, but he is not required to prove that his theory is true. At a minimum, a defendant must present some specific concern, based on more than bare conjecture, that, in reasonable probability, will be explained by the information sought. Hoag, 145 N.H. at 49 (quotation omitted). Here, the record does not support the trial court's conclusion that "the defendant failed to articulate how the requested medical records would be material to his defense." The defendant presented specific arguments to carry his burden under Gagne

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