State of New Hampshire v. Nestor Roman

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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-northern judicial district
No. 2022-0557


                          STATE OF NEW HAMPSHIRE

                                            v.

                                 NESTOR ROMAN

                          Argued: September 21, 2023
                       Opinion Issued: December 28, 2023

      John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Robert L. Baldridge, attorney, on the brief and orally), for the State.


      Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Donna J. Brown on
the brief and orally), for the defendant.

       DONOVAN, J. The defendant, Nestor Roman, appeals his convictions,
following a jury trial, on one count of aggravated felonious sexual assault
(AFSA) for engaging in a pattern of sexual assault, two counts of attempted
AFSA, and two counts of misdemeanor sexual assault. See RSA 632-A:2, III
(Supp. 2022); RSA 629:1 (2016); RSA 632-A:2, I(j) (Supp. 2022); RSA 632-A:4
(Supp. 2022). The defendant argues that the Superior Court (Delker, J.) erred
by ruling that the defense opened the door for the State to introduce the
testimony of a nurse who performed a Child Advocacy and Protection Program
(CAPP) examination of the victim. We conclude that the defendant opened the
door to this evidence and that the State was entitled to explain the nurse’s
findings. Accordingly, we affirm.

                                      I. Facts

        The jury could have found, or the record otherwise supports, the
following facts. On June 25, 2019, the victim was playing video games in her
bedroom when the defendant, her grandfather, entered the victim’s room and
began touching her breast and her inner thigh over her clothing. The victim
testified that when she pushed the defendant away, he told her that he was
sorry. The victim then called her mother, the defendant’s daughter, to tell her
that the defendant had sexually assaulted her. The victim and her mother
then went to the police station to file a report. While they were there, the
defendant arrived to turn himself in, telling the police that “he did something
wrong.”

       During a subsequent Child Advocacy Center (CAC) interview, the victim
disclosed another incident of abuse that allegedly occurred in November 2018.
Thereafter, the State indicted the defendant on two counts of attempted AFSA.
In 2021, shortly before the defendant’s trial was scheduled to begin, the victim
told her mother that the defendant’s sexual abuse was not limited to the 2018
and 2019 incidents. She disclosed that the abuse began much earlier, when
she was in elementary school. As a result of these new allegations, the
defendant’s trial was continued. The victim participated in another CAC
interview and underwent the CAPP examination at issue in this appeal in
September 2021. The State subsequently indicted the defendant on additional
AFSA charges.

       In June 2022, twelve days before the rescheduled trial date, the State
filed an amended witness list that included for the first time the nurse who
performed the victim’s CAPP examination. The defendant moved to exclude the
nurse’s testimony because her addition to the witness list was untimely. The
State responded by filing a motion in limine to permit the nurse to testify about
the victim’s statements during the CAPP examination. The trial court granted
the defendant’s motion to exclude the nurse’s testimony based on the State’s
untimely disclosure.

      At trial, the State called the lead detective assigned to the victim’s case.
The detective testified, in pertinent part, that he collected medical records
during the investigation, explaining that police request a CAPP examination
whenever a child discloses “some sort of sexual trauma or experience.”
Although he testified that he received medical records from the victim’s CAPP
examination, he did not discuss the results or findings of the examination
which were documented in those records. Nonetheless, on cross-examination,



                                         2
defense counsel questioned the detective about the nurse’s findings from the
CAPP examination. Specifically, defense counsel asked whether the detective’s
review of the records indicated “anything significant” such as “tears” or
“injuries” or other “signs of trauma.” The detective testified that there were no
injuries documented. The State then approached the trial court and argued
that, by questioning the detective about the specific findings of the CAPP
examination, the defense had opened the door for the nurse to explain her
findings. The defense maintained that it was forced to inquire into the nurse’s
findings after the detective testified that he received medical records because
“everybody assumes when there’s medical records that something happened.
That there’s something bad; that there[] [are] injuries.”

       The trial court ruled that, by introducing the detective’s testimony that
there had been a CAPP examination, the State did not open the door to any
otherwise inadmissible evidence. The court further concluded that the defense
introduced hearsay by questioning the detective about the nurse’s specific
findings and, therefore, that the defense opened the door to the nurse’s
testimony regarding the likelihood of specific types of injuries observed when a
child is sexually abused. The defendant deposed the nurse the following
morning before trial resumed. The State subsequently called the nurse to
testify as an expert in pediatric nursing, specifically in the area of child abuse
and maltreatment. The nurse testified that, in the majority of examinations
she had performed, physical signs of abuse were not present.

      The jury convicted the defendant on one count of AFSA for engaging in a
pattern of sexual assault, two counts of attempted AFSA, and two counts of
misdemeanor sexual assault. This appeal followed.

                                     II. Analysis

       On appeal, the parties both acknowledge that the door was opened to
evidence that would not have otherwise been admitted at trial. However, they
dispute which party opened the door and to what evidence the door was
opened. We review a trial court’s decision regarding the admissibility of
evidence under the opening the door doctrine pursuant to the unsustainable
exercise of discretion standard. State v. Barr, 

, 692 (2019). To
prevail, the defendant must show that the trial court’s decision was clearly
untenable or unreasonable to the prejudice of his case. 

 If the record
establishes that a reasonable person could have reached the same decision as
the trial court on the basis of the evidence before it, we will uphold the trial
court’s decision. 

     The opening the door doctrine comprises two doctrines governing the
admissibility of evidence. State v. Gaudet, 

 (2014). The first,
which we have described as the doctrine of “curative admissibility,” arises



                                        3
when inadmissible prejudicial evidence has been erroneously admitted by one
party, and the opposing party seeks to introduce other evidence to counter the
prejudice. State v. DePaula, 

 (2017). The second, which we
have described as the doctrine of “specific contradiction,” applies more broadly
to situations in which a party introduces admissible evidence that creates a
misleading advantage for that party, and the opposing party is then permitted
to introduce previously suppressed or otherwise inadmissible evidence to
counter the misleading advantage. 

 With respect to either doctrine, the fact
that the “door has been opened” does not permit all evidence to “pass through”
because the doctrine is intended to prevent prejudice and is not to be
subverted into a vehicle for the introduction of prejudice. See State v. Benoit,

 (1985).

        To prevent confusion that might arise from the use of the term, when a
party uses the term “opening the door” or its equivalent as justifying the
admission of otherwise inadmissible evidence, the party should specify which
of the two doctrines is being invoked. Barr, 172 N.H. at 693. This specificity is
necessary because the two doctrines are invoked by different types of evidence
— curative admissibility is triggered by the erroneous prior admission of
inadmissible evidence, while specific contradiction is triggered by the
introduction of misleading admissible evidence. Id. at 693-94. Under the
curative admissibility doctrine, a trial judge has discretion to admit otherwise
inadmissible evidence to rebut prejudicial evidence that has already been
erroneously admitted. Id. at 693. Under the specific contradiction doctrine, a
trial judge has discretion to admit previously suppressed or otherwise
inadmissible evidence to directly counter the misleading advantage triggered by
the introduction of admissible evidence. Id. at 693-94.

       Turning to the case before us, we first address the issue of which party
opened the door. On appeal, the defendant argues that the State opened the
door to the detective’s testimony on cross-examination regarding the contents
of the CAPP records under either the curative admissibility or specific
contradiction doctrine. Specifically, he argues that the State opened the door
when it questioned the detective regarding the medical records he received
during the investigation. We disagree.

      On direct examination, the State asked the detective whether he collected
any evidence in the case other than interviews with the victim and her mother,
to which he responded that he did not. The State then specifically asked the
detective whether he “collect[ed] any medical records.” The detective then
responded:

      Oh, yes. And there [were] medical records. So when — when a child
      indicates that there is some sort of sexual trauma or experience, we refer
      — there’s something called a CAPP, C-A-P-P exam. It’s a Child Advocacy



                                        4
       Protection Program. It’s handled through Dartmouth-Hitchcock. And we
       say, you know, regardless of what else it is you’re going to want to do,
       this is a doctor that specializes in this sort of exam[]. They know how to
       talk to kids, and they know — they — they can sexually — it’s not the
       same as like a — like a rape kit that you’d get at like a — like the
       emergency room, but they go through and they — they do like an exam of
       the child. And I received medical records from that exam.

The defendant argued to the trial court that this response opened the door
because it created a prejudicial and misleading impression that the detective
relied upon medical records as support for the defendant’s arrest. He therefore
asserted that he was permitted to counter the “prejudice and misleading
impression left with the jury” by cross-examining the detective about the CAPP
examination findings.

       The trial court disagreed. In explaining its decision, the court explicitly
addressed the curative admissibility doctrine, stating that the State did not
“inject otherwise inadmissible evidence” because “the investigative steps the
police take in a case [are] relevant evidence for the jury to evaluate whether the
police considered all and pursued all possible investigative avenues.”

      We first address the defendant’s argument that the State opened the
door under the specific contradiction doctrine. He asserts that the State’s line
of questioning about the investigation could have misled the jury to infer that
the medical records obtained in the course of the investigation contained
information that led to his arrest. The defendant also argues that this line of
questioning created a misleading advantage because it referred to excluded
evidence, and we have previously held that, in certain circumstances, a
witness’s reference to inadmissible evidence can constitute reversible error.
See State v. Ober, 

 (1985).1 Therefore, according to the
defendant, the State’s reference to such medical records was “for its own
advantage” because it forced the defendant to either address this evidence —


1 The defendant argues that State v. Ober, 

 (1985), is analogous to the case at hand

“for the notion that mere reference to previously excluded or inadmissible evidence, as well as
inferences that may be drawn therefrom, is prejudicial, creates a misleading advantage, and, in
some cases . . . constitutes reversible error.” We disagree with the defendant that Ober is
analogous to the case at hand. In Ober, we held that the State’s questioning of a witness during
trial regarding whether the victim had been asked to take a polygraph test constituted reversible
error. Ober, 

. Given that we had previously held that the results of a polygraph
test are not admissible as evidence of guilt or innocence in a criminal trial, we explained that a
“question asking whether a victim has been asked to take a polygraph test cannot produce
admissible evidence.” 

. Here, the court did not rule that the contents of the CAPP
examination records were inadmissible. Although the nurse was not allowed to testify due to the
State’s untimely disclosure, the court’s order did not preclude any testimony regarding the
existence of the CAPP examination records. We thus are unpersuaded that Ober is sufficiently
similar so as to be instructive here.



                                                 5
and risk opening the door to the nurse’s testimony — or “leave the jury with
the misleading impression.” At oral argument, however, the defendant noted
that testimony explaining that the victim was referred to Dartmouth-Hitchcock
for a medical examination would not have been prejudicial because the jury
would not have speculated about the findings of that examination. Although
we have previously held that the door can be opened by inferential conclusions
that may be drawn from a witness’s testimony, we are unpersuaded that the
detective’s responses to the State’s questions created such a “misleading
advantage.” See DePaula, 

.

       We agree with the trial court that “the investigative steps the police take
in a case [are] relevant evidence for the jury to evaluate.” Although the
defendant argues that the jury could have speculated about the detective’s
consideration of the medical records during his investigation leading to the
defendant’s arrest, the trial court instructed the jury “to decide the case based
only on the evidence that’s properly admitted during the course of the trial.”
See Gaudet, 

 (“[T]he trial court’s limiting instructions, which
the jury is presumed to follow, minimized the possibility that the jury would
misuse the evidence, thus reducing the potential for unfair prejudice.”
(quotation omitted)). Speculation that the contents of the medical records
supported the defendant’s arrest would have required the jury to disregard the
judge’s instruction. We conclude that the State’s introduction of the fact that a
CAPP examination of the victim had occurred and that medical records were
generated as a result of that examination, as described by the detective,
without more detail, did not give rise to a “misleading advantage” that required
rebuttal. See DePaula, 

.

      We next address the defendant’s argument that the State opened the
door when it referred to evidence that was excluded by the pretrial order. He
asserts that the trial court “predicted the very position the defense would
ultimately be forced into” when the court reasoned in its pretrial order that “the
defendant made a credible argument that if the alleged victim’s statements are
admitted, defense counsel would be forced to decide whether to explore medical
observations of the . . . nurse on cross-examination.” However, we disagree
with the defendant’s characterization of the pretrial order as “intended to
[expressly] exclude . . . any discussion of the medical records” during the trial.

       In granting the defendant’s motion to exclude the nurse as a witness, the
trial court based its decision solely on the State’s untimely disclosure. The trial
court did not expressly or implicitly rule that the victim’s statements were
inadmissible. Nor did it prohibit the parties from introducing any evidence that
medical records were generated during the CAPP examination or that any such
examination occurred.




                                        6
       On direct examination, the detective acknowledged that a CAPP
examination of the victim had been conducted and that records documenting
the findings of that examination existed, but he made no mention of the
victim’s statements or the nurse’s specific findings. The defendant
misconstrues the trial court’s order by arguing that the detective’s
acknowledgement that medical records exist in this case opened the door to the
nurse’s testimony. Rather than excluding all discussion of medical records,
the trial court prohibited the State only from calling the nurse as a fact witness
to testify about statements made by the victim during the examination. The
trial court’s ruling did not prohibit the detective from disclosing that he
collected medical records, from explaining the purpose of a CAPP examination,
or from testifying that the victim underwent a CAPP examination. Therefore,
because an erroneous admission of evidence is required to invoke curative
admissibility, the State cannot have opened the door under the curative
admissibility doctrine. See Barr, 172 N.H. at 692. We are unpersuaded by the
defendant’s remaining arguments that the State’s questioning of the detective
regarding the medical records opened the door to the information elicited
during the cross-examination.

       Accordingly, we conclude that, under either opening the door doctrine,
the defendant has failed to show that the trial court unsustainably exercised
its discretion by determining that the State did not open the door. The trial
court reasonably found that the State did not open the door to cross-
examination regarding the specific contents of the medical records by
introducing testimony acknowledging the existence of such records.

       We next turn to the issue of whether the defense opened the door. In its
pretrial order, the trial court warned that if the nurse were permitted to testify
about the victim’s statements made during the CAPP examination, and if the
defense then cross-examined the nurse on her medical observations during the
exam, then the defense “may, in turn, open the door to otherwise inadmissible
expert testimony relating to the . . . nurse’s medical observations and the
reasons she did not observe signs of trauma.” Nonetheless, during its cross-
examination of the detective, the defense specifically inquired about the
significance of the nurse’s observations documented in the medical records,
which prompted the State to argue that the defense opened the door for the
State to call the nurse, as an expert, to explain her findings.

        The trial court concluded that this line of inquiry opened the door to the
nurse’s testimony. It stated that “once the Defense injected issues of specific
expert testimony relating to when and what the likelihood of hymenal tears are,
. . . that is what makes that line of cross-examination prejudicial, and . . . [the
nurse’s] testimony is essential to rebut that prejudice.” The trial court
observed that the defense could have cross-examined the detective “in a far
more narrow fashion that would not have opened the door to the details of the



                                        7
examination.” The trial court determined that, because the State did not object
during the defense’s cross-examination and prejudicial evidence was therefore
admitted, the defense opened the door under the curative admissibility
doctrine.

      We agree that the curative admissibility doctrine applies here because
that doctrine is premised on the erroneous admission of evidence. See id. The
defendant does not challenge the trial court’s finding that defense counsel’s
questioning of the detective about the nurse’s findings was inadmissible. Had
the defense been permitted to introduce the nurse’s CAPP examination findings
without allowing the State to call the nurse to explain her observations, the
jury would have been left to rely solely upon the detective’s testimony about the
nurse’s findings.

      The defendant argues that, because the State failed to object to the
defense’s questioning of the detective on cross-examination, the State should
not have been entitled to benefit from its previous introduction of “misleading”
testimony. Rather, in his brief, the defendant argues, in passing, that at most
the State was entitled to a limiting instruction. The record establishes,
however, that the defendant failed to present this argument to the trial court.
Instead, defense counsel maintained that her cross-examination of the
detective was “a proper response” to the State’s “thorough investigation
argument.” Because the defendant never argued for this alternative measure
before the trial court, the argument is not preserved for our review, and we
decline to address it. See State v. Mercon, 

, 268 (2021)
(explaining our long-standing rule that parties may not have judicial review of
matters not raised in the forum of trial).

      Moreover, our review of the trial proceedings reveals no indication that
the State’s failure to object to the detective’s cross-examination was an
intentional or tactical decision. Further, for the reasons already discussed, the
detective’s testimony in response to the State’s questioning was not misleading.
Merely reviewing the State’s investigative steps with the detective cannot be a
basis for introducing prejudicial evidence concerning the victim’s medical
records. Therefore, we are unpersuaded by the defendant’s argument that the
State sought to benefit from “its previous introduction of misleading
testimony.”

       The defendant next argues that, even if the defense opened the door, the
trial court should have allowed the State to further question the detective
about the CAPP examination results rather than calling the nurse to testify.
However, this argument ignores the fact that the detective was not qualified as
an expert to opine on the significance of the examination’s results. Expert
testimony is required if any inference of the requisite causal link must depend
on observation and analysis outside the common experience of jurors.



                                        8
Stachulski v. Apple New England, LLC, 

, 168 (2018). Here, the
nurse was the only expert witness who testified at trial. The defendant also
argues that the detective’s prior testimony countered any potential prejudice
caused by the defendant’s questioning of the detective. However, for the
reasons already discussed — namely, that the detective was not qualified to
give his opinion regarding the significance of the examination’s results — this
argument is unavailing.

       We conclude that the nurse’s testimony was essential to rebut the
prejudice caused by the defense’s cross-examination of the detective. The trial
court is in the best position to gauge the prejudicial impact of particular
testimony, and what steps, if any, are necessary to remedy that prejudice.
DePaula, 

. Here, the evidence introduced by the defense — the
detective’s testimony that there were no signs of injury documented in the
medical records — was prejudicial because it informed the jury that the
examination documented the presence of no physical injuries to the victim,
without explanation. Without more context, this evidence would be misleading
because, as the nurse later testified, the absence of physical injuries does not
discount prior sexual abuse. We thus conclude that the trial court reasonably
acted within its discretion by determining that the defense introduced
inadmissible hearsay evidence and that the State was then entitled to
introduce other evidence to counter the prejudice caused by the defense. See

.

       We next consider whether the State’s rebuttal evidence — namely, the
substance of the nurse’s testimony — was the proper evidence to balance the
prejudice created by the defense’s questioning of the detective. See Benoit, 

 (explaining that the fact that the “door has been opened” does not
permit all evidence to “pass through” because the doctrine is intended to
prevent prejudice and is not to be subverted into a vehicle for the introduction
of prejudice). We conclude that the State was entitled to explain the meaning
of the medical records. When a party presents inadmissible, prejudicial
evidence, the opposing party has a particularly strong interest in being able to
refute such evidence. See State v. Wamala, 

 (2009) (“The
curative admissibility doctrine applies when inadmissible prejudicial evidence
has been erroneously admitted, and the opponent seeks to introduce testimony
to counter the prejudice.” (quotation omitted)); cf. DePaula, 

(discussing the strong interest, under the specific contradiction doctrine, in
refuting admissible evidence that creates a misleading advantage). Rebuttal
evidence sought to be admitted through the opening the door doctrine is
evaluated, not by its relevance to the charged conduct, but by its ability, and
whether it is necessary, to counter the prejudice created by the other party’s
opening of the door. See, e.g., State v. Nightingale, 

(2010) (discussing the specific contradiction doctrine and whether rebuttal
evidence specifically contradicted the admitted evidence).



                                       9
       The defendant asserts that the trial court erred by allowing the State to
introduce the nurse’s testimony because it exceeded the scope of the “open
door.” In ruling that the defense opened the door, the trial court explicitly
stated that the nurse’s testimony “is only admissible to the extent necessary to
rebut the unfair advantage gained” and that she could “testify about this issue
of how likely or unlikely injuries are in these situations based on her
experience,” but she would not be allowed to discuss statements made by the
victim during the examination. At trial, the nurse testified about her role in
conducting CAPP examinations, how the examinations are performed, and that
her findings in the victim’s examination were “normal.” She explained that she
infrequently observes physical signs of injuries in CAPP examinations and that
a “normal” finding does not necessarily prove whether the examinee was
abused. This testimony did not exceed the scope of the curative admissibility
doctrine because it was limited to rebutting the prejudice caused by the
defendant’s cross-examination of the detective. The nurse explained her
findings after she was qualified as an expert. Consistent with the trial court’s
order, her testimony did not describe the statements made to her by the victim.
We thus are unpersuaded that the nurse’s testimony exceeded the scope of the
“open door.”

      The defendant next argues that, even if the trial court correctly applied
the opening the door doctrine, the admission of the nurse’s testimony was
overly prejudicial and was offered to bolster the victim’s credibility. The nurse
explained that her observation of no signs of a prior injury was not conclusive
of whether an injury ever occurred, particularly when an examination is
conducted years after the abuse. Her testimony that the results of the victim’s
examination were “normal” therefore did not establish whether the victim
experienced sexual abuse. At oral argument, defense counsel conceded that
the nurse’s findings neither supported nor rebutted an allegation of
penetration, given that the CAPP examination was conducted two years after
the defendant had any contact with the victim. Therefore, we are unpersuaded
that the nurse’s testimony, which narrowly addressed her findings that the
victim had no signs of injury, was unfairly prejudicial.

      Finally, the defendant asserts that he was prejudiced because he was
unable to challenge the nurse’s credentials, pursue countering evidence, and
prepare for her testimony. He contends that the nurse’s testimony “was replete
with unsupported postulation, an admitted lack of data to support her
speculation, and an admitted lack of preparation for the testimony she would
provide.” He argues that he did not have enough time to call an expert of his
own to rebut the nurse’s testimony and that, had he known that the nurse
would testify, he would have planned accordingly. However, during trial, the
court allowed the defense to depose the nurse before resuming trial
proceedings the following day. The defense also cross-examined the nurse



                                       10
regarding her experience, findings, and opinions. Moreover, the defense did
not ask the trial court to suspend the trial for additional time. Accordingly, we
are unpersuaded that the defendant was unfairly prejudiced. Thus, we
conclude that the defendant has failed to carry his burden of establishing
either that the trial court’s ruling was an unsustainable exercise of its
discretion or that it was clearly untenable or unreasonable to the prejudice of
his case. See Gaudet, 

.

                                                        Affirmed.

      BASSETT and HANTZ MARCONI, JJ., concurred.




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