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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 
2

(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, 
3

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, 172 N.H. 681, 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. Id. 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. Id.

The opening the door doctrine comprises two doctrines governing the 

admissibility of evidence. State v. Gaudet, 166 N.H. 390, 396 (2014). The first, 

which we have described as the doctrine of “curative admissibility,” arises 
4

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, 170 N.H. 139, 146 (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. Id. 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, 

126 N.H. 6, 21 (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 
5

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, 126 N.H. 471, 471-72 (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, 126 N.H. 471 (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, 126 N.H. at 472. 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.” Id. at 471-72. 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.
6

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, 170 N.H. at 146.

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, 166 N.H. at 397 (“[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, 170 N.H. at 146.

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.
7

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 crossexamination 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 crossexamination 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 
8

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, 174 N.H. 261, 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. 
9

Stachulski v. Apple New England, LLC, 171 N.H. 158, 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, 170 N.H. at 151. 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

id. at 146.

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, 126

N.H. at 21 (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, 158 N.H. 583, 589 (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, 170 N.H. at 149

(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, 160 N.H. 569, 579-80

(2010) (discussing the specific contradiction doctrine and whether rebuttal 

evidence specifically contradicted the admitted evidence).
10

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 
11

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, 166 N.H. at 397.

Affirmed.

BASSETT and HANTZ MARCONI, JJ., concurred.