State of New Hampshire v. Miguel R. Rasor

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0522, State of New Hampshire v. Miguel
R. Rasor, the court on December 30, 2020, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. See Sup.
Ct. R. 18(1). Following a jury trial in the Superior Court (Houran, J.), the
defendant, Miguel R. Rasor, was convicted of three counts of aggravated
felonious sexual assault (AFSA), see RSA 632-A:2, II, III (2016), two counts of
felonious sexual assault (FSA), see RSA 632-A:3, III (2016), and one count of
attempted FSA, see id.; RSA 629:1 (2016). On appeal, he argues that the trial
court erred by failing to admit evidence under the opening-the-door doctrine.
We affirm.

The relevant facts follow. The victim, who was eleven and twelve years
old at the time of the charged conduct, is the defendant’s step-daughter. The
defendant is married to the victim’s mother, whose ex-husband is the victim’s
biological father (father). The evidentiary issue before us involves the mother
and father, and the State’s assertions during its opening statement about what
it anticipated the mother’s testimony would be at trial. In its opening
statement, the State said:

Now I want to talk, for a minute, about [the victim’s] mom,
the Defendant’s wife . . . . I’m sure that hearing her testify you will
form your own opinion of her, but I believe, during her testimony,
that it will be made clear to you that she has a bias for the
Defendant. Please keep in mind, during her testimony, that she
has chosen to stay with the Defendant. She is still married to him
and she is still living with him. [S]he is still his wife. Furthermore,
she owns a business with him. Her livelihood is actually tied to
the Defendant. And obviously, she doesn’t want what [the victim]
says to be true. If it is true, then not only has her husband
betrayed her in the most egregious way possible, but whether it’s
fair or not, she might not feel she may not look like a very good
mother.

So you’re going to hear that [mother] has engaged in some
behavior that one would not expect of a mother who[se] child is
alleging sexual abuse. You’re going to hear that she has allowed
her children to have contact with the Defendant, even after she
 disclosed this abuse — [the victim] disclosed the abuse. You’re
going to hear that she’s tried to make [the victim] feel guilty about
these charges, even going so far as to show [the victim] the
indictments and confront her with them. And she’s also going to
try to point the finger at another perpetrator, her ex-husband,
[father], this man who I said they all have this great relationship
with.

You’ll hear that as early as that forensic interview that I
mentioned [the victim] did, she was already trying to point the
finger at her ex-husband, to say, [the victim] just might be
confused, I think it was her biological father that did this. And she
tries to push this belief on the police and on her daughter. In
doing so, she talks to the police about a period of time when [the
victim] was in the second or third grade, where her father . . . was
bathing her, rather than having her bathe herself. She points to
this and [father’s] habit of slapping [the victim] on the rear-end as
a reason why [he] is the real perpetrator in this case. And [father]
will tell you that he did bathe [the victim] when she was in the
second or third grade, that she did not have the hygiene and that
he was just doing what he thought he should as a father, that he
was open about it. It was not something he would do secretly in
the middle of the night. And that, when [mother] had a talk with
him about how [the victim] was getting too old for this, he stopped.

The next day, during cross-examination of father, the defendant sought
to introduce evidence that when father was approximately twenty-five years
old, he had sexual intercourse with the mother, who was twelve years old at
the time. The State objected, and the defendant asserted that the State’s
opening statement had opened the door to this evidence. The defendant
argued that, in its opening, the State recited a list of the mother’s self-serving
reasons explaining why she believes that father, not the defendant, committed
the charged crimes. Therefore, according to the defendant, he was entitled to
introduce evidence tending to show that the mother had a legitimate reason for
suspecting father; specifically, that she and father had sexual intercourse when
he was approximately twenty-five and she was twelve.

After hearing argument from both parties, and listening to recordings of
portions of the State’s opening and father’s testimony on direct, the trial court
ruled that the evidence was inadmissible under the opening-the-door doctrine.
It concluded that the curative admissibility doctrine did not apply and that the
State had not opened the door under the specific contradiction doctrine. It
further concluded that even if the State had opened the door, the proffered
evidence was unfairly prejudicial. The defendant was subsequently convicted
on three counts of AFSA, two counts of FSA, and one count of attempted FSA.
See RSA 632-A:2, II, III; RSA 632-A:3, III; RSA 629:1. This appeal followed.

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 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 ruling was clearly untenable or
unreasonable to the prejudice of his case. Id.

The opening-the-door doctrine itself subsumes two distinct doctrines, the
“curative admissibility” doctrine and the “specific contradiction” doctrine. Id.
The curative admissibility doctrine applies when inadmissible, prejudicial
evidence has been erroneously admitted, and the party prejudiced by the
admission seeks to introduce other evidence to counter the prejudice. Id. The
specific contradiction doctrine applies when a party introduces admissible
evidence that creates a misleading advantage for that party, and the opposing
party is then allowed to introduce previously suppressed or otherwise
inadmissible evidence to counter the misleading advantage. Id. The two
subsidiary doctrines are thus “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.” State v. Morrill, 154 N.H.
547, 550 (2006).

Remarks made in opening statements may trigger the opening-the-door
doctrine. Barr, 172 N.H. at 692. Because an opening statement is not itself
evidence, State v. Martin, 138 N.H. 508, 516 (1994), when applying the
opening-the-door doctrine to opening statements, the precise question becomes
whether the opening statement, by referencing anticipated evidence, opens the
door to otherwise inadmissible evidence. See Barr, 172 N.H. at 692-93; State
v. Nightingale, 160 N.H. 569, 579-80 (2010).

Here, the defendant argues that the State’s opening statement opened
the door under the curative admissibility doctrine or, alternatively, under the
specific contradiction doctrine. Under either doctrine, the defendant asserts
that the State’s opening statement “opened the door to evidence that [mother]
legitimately suspected that [father] was the perpetrator because [father] had
sex[ual intercourse] with her when she was the victim’s age.”

Assuming without deciding that the trial court erred in concluding that
the State’s opening statement did not open the door under either doctrine, we
hold that the defendant has failed to show that the trial court unsustainably
exercised its discretion in finding that the proffered rebuttal evidence was
unfairly prejudicial under the opening-the-door doctrine.

When a party presents inadmissible, prejudicial evidence or evidence
that creates a misleading advantage, “the opposing party has a particularly
strong interest in being able to refute such evidence.” State v. DePaula, 170

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N.H. 139, 149 (2017) (discussing this 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 or misleading advantage created by the other party’s opening of the
door. See, e.g., id. at 141, 147-48; State v. Cannon, 146 N.H. 562, 563, 564-66
(2001); see also Nightingale, 160 N.H. at 580 (holding trial court reasonably
could have found that defense counsel’s opening statement created a
misleading impression and that the rebuttal evidence at issue “was necessary
to counter this misleading impression”).

Further, the opening-the-door doctrine functions to allow the admission
of “otherwise inadmissible” evidence. Barr, 172 N.H. at 693-94 (explaining that
both subsidiary doctrines facilitate the admission of otherwise inadmissible
evidence); State v. Wamala, 158 N.H. 583, 591 (2009) (“[T]o the extent that the
defendant argues that the opening-the-door doctrine does not allow the
admission of hearsay evidence, he is mistaken. Under either . . . doctrine, the
court has the discretion to admit otherwise inadmissible evidence.”). Thus, the
fact that the evidence at issue here may be, as the defendant acknowledges,
inadmissible under New Hampshire Rule of Evidence 404(b), does not itself
render the evidence inadmissible pursuant to the opening-the-door doctrine.

However, “the fact that the door has been opened does not, by itself,
permit all evidence to pass through.” Wamala, 158 N.H. at 590 (quotation
omitted). The opening-the-door doctrine “is intended to prevent prejudice and
is not to be subverted into a rule for the injection of prejudice,” and we
recognize that the trial court is in the best position to gauge the prejudicial
impact of particular testimony. State v. Gaudet, 166 N.H. 390, 396 (2014).

The defendant argues that, under the curative admissibility doctrine, the
State’s opening statement referenced inadmissible, prejudicial evidence by
claiming that the mother’s “professed disbelief of [the victim] was dishonest”
and that her real motives for disbelieving her daughter’s allegations against the
defendant “were selfish and financial.” He argues that, under the specific
contradiction doctrine, the State’s opening “created the misimpression that
[mother] feigned skepticism of the victim’s allegations for her own selfish
reasons.” Under both doctrines, the defendant asserts that he was entitled to
introduce evidence of prior sexual conduct between the mother and father to
show a legitimate reason why the mother suspected that father — not the
defendant — was the one sexually assaulting the victim in order to counter the
prejudice or misleading advantage created by the State’s opening statement.

We conclude that the trial court did not unsustainably exercise its
discretion in finding the proffered rebuttal evidence unfairly prejudicial under
the opening-the-door doctrine. The trial court reasonably could have found

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that, at the time of its ruling, any prejudice or misleading advantage created by
the State’s opening had been directly countered by evidence already admitted
at trial, rendering the admission of the defendant’s proffered evidence
unnecessary. “Although the trial court did not expressly make this finding, we
assume it made all subsidiary findings necessary to support its decision.”
Smith v. Lillian V. Donahue Trust, 157 N.H. 502, 508 (2008). Compare Morrill,
154 N.H. at 551-52 (concluding that trial court unsustainably exercised its
discretion in admitting rebuttal evidence, noting whatever misleading
impression the defendant may have given the jury about a father’s delay in
reporting his daughter’s abuse had already been countered by admissible
evidence that directly countered this theory), with Wamala, 158 N.H. at 590-91
(concluding, under the specific contradiction doctrine, that victim’s admissible
testimony about prior assaults “did not directly counter the defendant’s theory
that she fabricated her allegations against him” and therefore “trial court
reasonably could have determined that introducing otherwise inadmissible
hearsay evidence . . . was necessary”).

By the time the defendant attempted to introduce the evidence regarding
prior sexual conduct between the mother and father, testimony had already
been admitted showing that the mother knew that father had been bathing the
victim when she was approximately nine and ten years old, that the mother
knew this behavior made the victim uncomfortable, and that the mother had to
tell father to stop bathing their daughter. Notably, testimony had already been
admitted that the victim told the mother that she had lied about her allegations
against the defendant. Furthermore, by the time of the court’s ruling, the
evidence showed that many of the victim’s claims against the defendant were
alleged to have taken place while the mother was present, albeit sleeping. In
contrast, the evidence also showed that the victim continued to live with father
part-time, where the mother knew father had previously engaged in behavior
that made their daughter uncomfortable. The trial court reasonably could have
determined that this evidence tended to provide legitimate reasons to explain
why, as the defendant avers on appeal, the mother suspected that father — not
the defendant — was sexually assaulting the victim,1 and, thus, that this
evidence had directly countered any prejudice or misleading advantage created
by the State’s opening statement. See Smith, 157 N.H. at 508; cf. Morrill, 154
N.H. at 552 (“[T]he State presented the jury with admissible evidence directly
contradicting the defendant’s theory, which placed any potentially misleading
evidence into proper context, without resort to inadmissible hearsay.”)

The intent behind the opening-the-door doctrine is to “prevent prejudice,”
Gaudet, 166 N.H. at 396, and the trial court, at the time of its ruling,
reasonably could have found that the proffered evidence was not needed to

1 We note that the defendant acknowledged during oral argument that there was other evidence

admitted at trial that tended to show legitimate reasons why the mother suspected father as the
perpetrator and not the defendant.

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“prevent prejudice” given the other evidence adduced at trial as described
above, see Smith, 157 N.H. at 508; Nightingale, 160 N.H. at 580; cf. Morrill,
154 N.H. at 551-52. The opening-the-door doctrine “is not to be subverted into
a rule for the injection of prejudice,” and, accordingly, we cannot conclude that
the trial court, which is in the best position to gauge the prejudicial impact of
particular testimony, unsustainably exercised its discretion in finding that the
evidence of prior sexual conduct between the mother and father was unfairly
prejudicial under the opening-the-door doctrine. Gaudet, 166 N.H. at 396; see
Wamala, 158 N.H. at 590 (“The fact that the door has been opened does not, by
itself, permit all evidence to pass through.” (quotation omitted)).

We are not persuaded by the defendant’s arguments that our decisions
in DePaula and Nightingale compel a different result. In both cases, we
affirmed the trial court’s decision to admit evidence through the opening-the-
door doctrine as a sustainable exercise of discretion, and in neither did we
observe that evidence admitted prior to the trial court’s relevant ruling
rendered the rebuttal evidence at issue unnecessary. Cf. DePaula, 170 N.H. at
147-48; Nightingale, 160 N.H. at 579-80. See generally State v. Pennock, 168
N.H. 294, 302 (2015) (“Our only function on review is to determine whether a
reasonable person could have reached the same decision as the trial court on
the basis of the evidence before it.” (quotation omitted)).

“In determining whether a ruling is a proper exercise of judicial
discretion, we consider whether the record establishes an objective basis
sufficient to sustain the discretionary decision made.” Pennock, 168 N.H. at
302 (quotation omitted); see also Smith, 157 N.H. at 508. Here, we cannot
conclude that at the time of the trial court’s ruling, it unsustainably exercised
its discretion in finding the defendant’s proffered rebuttal evidence unfairly
prejudicial under the opening-the-door doctrine. Arguments raised in the
defendant’s notice of appeal that were not briefed are considered waived. See
Barr, 172 N.H. at 694.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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