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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 ___________________________

Grafton No. 2010-313

THE STATE OF NEW HAMPSHIRE v. CHRISTOPHER S. GUAY Argued: June 15, 2011 Opinion Issued: September 20, 2011 Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Dorothy E. Graham, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

CONBOY, J. After a jury trial in Superior Court (Vaughan, J.), the defendant, Christopher S. Guay, was convicted of three counts of aggravated felonious sexual assault (AFSA), see RSA 632-A:2 (Supp. 2010), and one count of felonious sexual assault (FSA), see RSA 632-A:3, III (2007 & Supp. 2010). On appeal, he argues that the trial court erred by: (1) failing to grant his request for a mistrial; (2) failing to dismiss one of the three AFSA counts; and (3) denying him access to all of the victim's medical and counseling records. We affirm in part, reverse in part, and remand.

I.

Facts

The jury could have found the following facts. The victim, J.G., born on October 15, 1997, is the biological daughter of the defendant and K.G. After the defendant and K.G. divorced in March 2002, J.G. spent every other weekend and Wednesdays with the defendant. The defendant remarried in 2004 to H., who had one son, J.T., from a prior marriage to Jason T. The defendant and H. had a daughter, J. The defendant and H. separated in March or April 2008. During the defendant's marriage to H., he and Jason T. became friends. Over the weekend of April 25-27, 2008, the defendant and Jason T. took an overnight trip to Lincoln with the victim, J.G., and the other two children. The hotel room in which the group stayed consisted of a downstairs area, with a kitchen, bathroom, and pull-out bed, and a loft area with a single bed and a set of bunk beds. The loft area was not visible from the downstairs portion of the room. On the evening of April 25, J.G. put her half-sister, J., to bed in one of the loft bunks and then got into the single bed in the loft to watch television. The defendant, Jason T., and his son, J.T., were in the downstairs area, and the defendant and Jason T. were drinking beer. At some point, the defendant went up into the loft and told his daughter, J.G., to go to bed. J.G. later awoke to feel the defendant touching her vagina. The defendant also touched J.G.'s breasts that night, and told her not to tell her mother what he had done because he would go to jail. On the following night, April 26, J.G. again slept in the single loft bed. She awoke to find the defendant on top of her. J.G. realized that her pants had been removed and that the defendant's fingers were in her vagina. The defendant then put his penis in J.G.'s vagina and moved his body "up and down." Jason T., who had been sleeping in the downstairs area with J.T., was awakened in the night by the sound of J.G. "apologizing" to the defendant in the loft and asking the defendant if he was mad at her. Jason T. heard the defendant respond to J.G., "No, why would I be mad?" Shortly after the assault on the night of April 26, J.G. noted that the bed had "wet stuff all over it," and that some of it was also on her body. J.G. put her pants on, went to the bathroom, and saw that she was bleeding. Jason T. saw J.G. as she came out of the bathroom and remarked that her pants were on inside out. J.G. eventually disclosed the assaults to her best friend and then to her mother, K.G., who called the police. The defendant was later charged with three counts of AFSA and two counts of FSA.

2

Prior to trial, the defendant requested that the State produce J.G.'s medical and counseling records. The State objected in part, but agreed that the court could review the requested records in camera and determine which records should be released to counsel. After reviewing the records, the trial court issued an order releasing some of them to counsel, but concluding that the remainder should not be disclosed. At trial, the defendant testified in his own defense. During the defendant's testimony, immediately after he stated that listening to J.G.'s accusations against him was "heartbreaking," J.G. shouted out from the back of the courtroom, "You're such a freakin' liar." The trial court denied the defendant's request for a mistrial but twice issued curative instructions to the jury. The jury found the defendant guilty on all three counts of AFSA and one count of FSA. This appeal followed. II. Denial of Mistrial Request

The defendant first argues that the trial court erred when it denied his request for a mistrial following J.G.'s emotional outburst in the courtroom during his testimony. "Mistrial is the proper remedy only if the evidence or comment complained of was not merely improper, but also so prejudicial that it constituted an irreparable injustice that cannot be cured by jury instructions." State v. Neeper, 160 N.H. 11, 15 (2010) (quotation omitted). When reviewing a trial court's ruling on a motion for a mistrial, we "recognize that the trial court is in the best position to gauge the prejudicial nature of the conduct at issue and has broad discretion to decide whether a mistrial is appropriate. We will not overturn the trial court's decision on whether a mistrial or other remedial action is necessary absent an unsustainable exercise of discretion." State v. Ainsworth, 151 N.H. 691, 698 (2005). Here, the defendant argues that J.G.'s outburst "exposed the jury to inadmissible information that she did not, and could not, present during her direct examination"

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