NHCaseLaw.com

DUGGAN, J. The defendant, John Forbes, was convicted by a jury in Superior Court of one count of aggravated felonious sexual assault. See RSA 632-A:2, II (2007). On appeal, he argues that the Trial Court (Coffey, J.) erred in admitting evidence of his silence as an adoptive admission pursuant to New Hampshire Rule of Evidence 801(d)(2)(B). Because we agree that the trial court unsustainably exercised its discretion by admitting this evidence, we reverse and remand.

On July 23, 2002, the defendant filed a motion for discovery. The defendant had requested inter alia that the state be required to produce certain records for a review by the court in camera. The state did not object to this portion of the defendant’s request and, accordingly, the court issued an order on August 14, 2002 granting that portion of the motion.