State v. Timothy Barr

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Carroll
No. 2018-0464

THE STATE OF NEW HAMPSHIRE

v.

TIMOTHY BARR

Argued: October 10, 2019
Opinion Issued: November 22, 2019

Gordon J. MacDonald, attorney general (Elizabeth A. Lahey, assistant
attorney general, on the brief, and Susan P. McGinnis, senior assistant
attorney general, orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

DONOVAN, J. The defendant, Timothy Barr, appeals his convictions,
following a jury trial in the Superior Court (Ignatius, J.), of two counts of
manufacturing, and one count of possessing, child sexual abuse images. See
RSA 649-A:3, :3-b (2016). He argues that: (1) RSA chapter 649-A (2016 &
Supp. 2018), as applied, violates his right to the freedom of speech guaranteed
under the First Amendment to the United States Constitution and Part I,
Article 22 of the New Hampshire Constitution because the images underlying
his convictions depict legal sexual conduct; and (2) the trial court erred by
denying his request to cross-examine the minor depicted in the images about
her prior sexual history. We affirm because child pornography depicting an
actual child remains a category of speech that is unprotected by the First
Amendment, and the trial court’s decision to deny the defendant’s cross-
examination request was not an unsustainable exercise of discretion.

I. Facts

The jury could have found the following facts. The defendant and a 16-
year-old minor were engaged in a consensual sexual relationship.1 The
defendant took multiple photographs and one video of the minor performing
fellatio on him. The minor also sent the defendant a sexually explicit
photograph and video of herself. In July 2017, the minor’s parents discovered
that she was talking with an older man, found photographs that she was
sending the defendant, and called the police.

During their investigation, police found sexually explicit photographs and
videos of the minor stored on the defendant’s phone and in an online
conversation between him and the minor. The police found no evidence that
the defendant distributed the photographs or videos to anyone. Based upon
this evidence, the State charged the defendant with nine counts of
manufacturing, and two counts of possessing, child sexual abuse images.

During opening statements at trial, the State characterized the minor as
“unsure of how to act, so [the defendant] made sure to tell her where and how
to stand, what to wear, how to [perform fellatio], actions that were unnatural to
[the minor] who was nearly half his age.” Following opening statements, the
defendant requested that the trial court permit him to question the minor
regarding her prior sexual history, arguing that the State opened the door to
such evidence by commenting that the act of fellatio was “unnatural” to the
minor. Specifically, the defendant proffered that, in an interview with the child
advocacy center, the minor stated that she had two prior sexual relationships
and had previously photographed her sexual activity. The defendant requested
permission to cross-examine the minor about these statements. The State
countered that it used “unnatural” because, “[i]f this were a natural thing [the
minor] would do,” the defendant would not have had to instruct her. The
defendant responded that the word “unnatural” “carries the intimation that
this is the first time she’s ever done it.”

1
Under our laws, a 16-year-old may consent to sexual intercourse. See RSA 632-A:3, II (Supp.
2018) (categorizing as a class B felony engaging “in sexual penetration with a person” who is
under 16 years of age, in certain circumstances); RSA 632-A:4, I (b), (c) (Supp. 2018) (categorizing
as a class A misdemeanor subjecting an individual under 16 years of age to sexual contact or
engaging in sexual penetration with an individual under 16 years of age in certain circumstances);
State v. Holmes, 154 N.H. 723, 728 (2007).

2
 The trial court acknowledged that “unnatural” “is kind of a loaded word
and in retrospect it probably would have been better to say it differently,” but
concluded that providing the defendant the opportunity to cross-examine the
minor about her prior sexual history was a “significant [] step” that was
unnecessary given the comment. The trial court therefore denied the
defendant’s request to allow him to cross-examine the minor about her prior
sexual history or prior photographic documentation of that sexual history.2

At the close of the State’s case, the defendant moved to dismiss the
indictment or, in the alternative, for a directed verdict of acquittal, arguing that
RSA 649-A:3 and :3-b were unconstitutional as applied to him because they
violated his right to the freedom of speech guaranteed under the Federal and
State Constitutions. He argued that because the sexual conduct depicted in
the photographs and videos was lawful, and because he did not distribute
them, they did not constitute child pornography under First Amendment case
law and he thus had a right to manufacture and possess them. The trial court
denied the defendant’s motion, concluding that, because the photographs and
videos depict an actual child engaging in sexual conduct, the statute was
constitutional as applied.

However, the trial court granted the defendant’s request for a jury
nullification instruction upon finding that the Child Sexual Abuse Images
statute’s statement of purpose describing the intent to proscribe the
exploitation of “children under the age of 16,” RSA 649-A:1, II (2016), is
internally inconsistent with the statute’s definition of a child as “any person
under the age of 18 years,” RSA 649-A:2, I (2016). 3 Nonetheless, the jury
found the defendant guilty of two counts of manufacturing child sexual abuse
images, with respect to the video and one photograph of the minor performing
fellatio, and one count of possessing child sexual abuse images, with respect to
the sexually explicit video of the minor. This appeal followed.
2
We note that, although the trial court denied the defendant’s request to cross-examine the minor
about these specific statements, the minor testified that she occasionally took photographs of her
sexual intercourse with the defendant and later deleted them, agreed with the statement that it
was not a big deal to take the photographs, and testified that the defendant was “one of my . . .
players . . . to sleep with.”
3
The Child Sexual Abuse Images statute’s statement of purpose discusses the exploitation of
children through commercial networks, and declares “this chapter makes the dissemination of
visual representations of children under the age of 16 engaged in sexual activity illegal . . . .” RSA
649-A:1, II. Before 2009, the statute defined “[c]hild” as “any person under the age of 16.” RSA
649-A:2, I (2007) (repealed 2009). However, the definitions portion of the statute was re-enacted
in 2009 to define a child as “any person under the age of 18 years.” RSA 649-A:2, I; Laws 2008,
323:1. The legislature is free to define a child as a person under the age of 18 for child
pornography purposes. See New York v. Ferber, 458 U.S. 747, 764 & n.17 (1982). However, we
note that it may wish to address this statutory inconsistency. The judge instructed the jury:
“Even if you find that the State has proven each and every element of the offense charged beyond
a reasonable doubt you may still find the Defendant not guilty if you have a conscientious feeling
that a not guilty verdict would be a fair and just result in this case.”

3
 II. Analysis
A. As-Applied First Amendment Challenge

The defendant first argues that, as applied to his conduct, RSA chapter
649-A is unconstitutional under the First Amendment to the United States
Constitution and Part I, Article 22 of the New Hampshire Constitution. As an
initial matter, the State contends that the defendant’s claim under the State
Constitution is waived because it is insufficiently briefed. Our policy of
deciding issues under the State Constitution before turning to the Federal
Constitution is well-established. See State v. Ball, 124 N.H. 226, 232 (1983).
However, off-hand invocations of the State Constitution that are supported by
neither argument nor authority warrant no consideration. See Sumner v. N.H.
Sec’y of State, 168 N.H. 667, 672 (2016) (citing Keenan v. Fearon, 130 N.H.
494, 499 (1988)). Aside from one case noting that the State Constitution
provides at least as much protection as the Federal Constitution, the defendant
cites no authority interpreting, and makes no substantive argument regarding,
Part I, Article 22 of the State Constitution in support of his contention that his
convictions contravene the preservation of free speech contained therein.4 This
argument is therefore insufficiently presented for our consideration, and we
consider it waived. See Keenan, 130 N.H. at 499. We proceed to his First
Amendment claim, which we review de novo. State v. Zidel, 156 N.H. 684, 686
(2008).

RSA 649-A:3-b, I, criminalizes the manufacture of child sexual abuse
images and in relevant part states, “No person shall knowingly create, produce,
manufacture, or direct a visual representation of a child engaging in or being
engaged in sexually explicit conduct, or participate in that portion of such
visual representation that consists of a child engaging in or being engaged in
sexually explicit conduct.” RSA 649-A:3, I(a) criminalizes the possession of
child sexual abuse images and in relevant part states, “No person shall
knowingly . . . [b]uy, procure, possess, or control any visual representation of a
child engaging in sexually explicit conduct . . . .” The statute defines “[c]hild”
as “any person under the age of 18 years.” RSA 649-A:2, I.

The First Amendment, applicable to the states through the Fourteenth
Amendment, “prohibits laws that abridge the freedom of speech.” NIFLA v.
Becerra, 138 S. Ct. 2361, 2371 (2018). “As a general matter, the First
Amendment means that government has no power to restrict expression
because of its message, its ideas, its subject matter, or its content.” Ashcroft v.

4
The only New Hampshire case that the defendant cites in support of his substantive free speech
argument is State v. Zidel, which was decided entirely on First Amendment grounds. Zidel, 156
N.H. 684, 686 (2008) (“[B]ecause we are required to follow federal constitutional law, an analysis
under the State Constitution is unnecessary. We therefore decide this case under the First and
Fourteenth Amendments to the Federal Constitution.”).

4
American Civil Liberties Union, 535 U.S. 564, 573 (2002) (brackets and
quotation omitted). The protection of speech afforded by the First Amendment
extends to “the right to receive information and ideas.” Stanley v. Georgia, 394
U.S. 557, 564 (1969).

There are, however, certain categories of speech which historically have
been unprotected by the First Amendment. Brown v. Entertainment
Merchants Assn., 564 U.S. 786, 791 (2011) (listing obscenity, incitement, and
fighting words as examples of such categories). In New York v. Ferber, 458
U.S. 747, 756, 764 (1982), the United States Supreme Court held that child
pornography is such a category of speech, largely unprotected by the First
Amendment. See Zidel, 156 N.H. at 687-88 (explaining how Ferber established
this categorical exception); see also Rodney A. Smolla, 2 Smolla and Nimmer on
Freedom of Speech § 14:50 (2019) (“The Supreme Court has . . . ruled that the
use of children as subjects in the depiction of pornography, as well as
possession of such pornography, falls outside First Amendment protection.”).
The defendant’s central thesis is that images depicting a lawful sexual
relationship with a child are protected by the First Amendment. We disagree.

We canvassed the United States Supreme Court cases developing and
refining the definition of material that is considered child pornography and
thus unprotected by the First Amendment in Zidel, 156 N.H. at 687-92, and it
is unnecessary to recount that history at length here. The Court in Ferber, 458
U.S. at 757, 765, held that the “the production and distribution” of child
pornography is unprotected by the First Amendment for several reasons, chief
among them that “[t]he prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance.” “When a
definable class of material . . . bears so heavily and pervasively on the welfare
of children engaged in its production, we think . . . that it is permissible to
consider these materials as without the protection of the First Amendment.”
Id. at 764.5

In Osborne v. Ohio, 495 U.S. 103, 109-11 (1990), the Court again cited
the interest in “protecting the victims of child pornography” in holding that
states may criminalize the possession and viewing of child pornography
without offending the First Amendment. The Court then, in Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 239, 256 (2002), limited the scope of material
that is unprotected by the First Amendment, holding that a statute
criminalizing the possession or distribution of “sexually explicit images that
appear to depict minors but were produced without using any real children”
was unconstitutionally overbroad. That statute prohibited speech which, “[i]n
contrast to the speech in Ferber, . . . records no crime and creates no victims

5
The Court in Ferber was aware of interstate differences in defining the age at which individuals
are considered children for child pornography purposes. See Ferber, 458 U.S. at 764 n.17. Some
states set the age of majority at 18, some at 16, and others at various points in-between. Id.

5
by its production.” Id. at 250. “Where the images are themselves the product
of child sexual abuse,” however, “Ferber recognized that the State had an
interest in stamping it out without regard to any judgment about its content.”
Id. at 249.

After reviewing this trilogy of cases, we concluded in Zidel that RSA 649-
A:3 (2007) was unconstitutional as applied to “the possession of materials
depicting heads and necks of identifiable minor females superimposed upon
naked female bodies, where the naked bodies do not depict body parts of actual
children engaging in sexual activity,” in part because its application did not
further the protection of the “‘physical and psychological health of a minor.’”
Zidel, 156 N.H. at 693, 696 (quoting Ferber, 458 U.S. at 756-57). The images
at issue in Zidel were protected by the First Amendment because they were not
made with actual children and not distributed, and thus did not result in harm
to any child. Id. at 693.

The defendant argues that Ashcroft and Zidel suggest that child
pornography is not a “free-standing exception to [] First Amendment”
protection, but “a specific application of a more general exception for speech
that is closely connected with an illegal act.” He contends that this suggestion
was driven home by the United States Supreme Court in United States v.
Stevens, 559 U.S. 460 (2010), decided after Zidel.

Before turning to Stevens, we pause to note that child pornography made
with actual children is considered an independent category of speech
unprotected by the First Amendment by myriad federal appellate courts in
decisions issued after Stevens. See United States v. Hotaling, 634 F.3d 725,
728 (2d Cir. 2011) (“[I]t is settled law that child pornography is not protected
expressive speech under the First Amendment.”); Free Speech Coalition, Inc. v.
Attorney General of U.S., 677 F.3d 519, 533 n.9 (3d Cir. 2012) (“It is long-
settled that child pornography depicting actual children is not protected under
the First Amendment.”); United States v. Moreland, 665 F.3d 137, 140 (5th
Cir. 2011) (“Child pornography is not protected by the First Amendment
because the State has a compelling interest in safeguarding the well-being of
minors.” (quotation omitted)); Doe v. Boland, 698 F.3d 877, 883 (6th Cir. 2012)
(listing child pornography as a category of speech unprotected by the First
Amendment); United States v. Fletcher, 634 F.3d 395, 402 (7th Cir. 2011)
(“[C]hild pornography is unprotected by the First Amendment . . . .”); United
States v. Anderson, 759 F.3d 891, 894 (8th Cir. 2014) (“[T]he Supreme Court
[has] recognized child pornography as one . . . category of material . . . not
entitled to First Amendment protection.” (quotation omitted)); United States v.
Laursen, 847 F.3d 1026, 1034 (9th Cir. 2017) (“[T]he Supreme Court has made
it crystal clear that child pornography is not constitutionally protected.”);
United States v. Brune, 767 F.3d 1009, 1018 (10th Cir. 2014) (“The Supreme
Court has upheld laws that criminalize the production and distribution of child
pornography.”); United States v. Dean, 635 F.3d 1200, 1204 (11th Cir. 2011)

6
(“[C]hild pornography is not protected by the First Amendment because it is
produced using actual minors . . . .”); see also United States v. Alvarez, 567
U.S. 709, 717-18 (2012) (plurality opinion) (listing child pornography as a
category of speech with “a historical foundation in the Court’s free speech
tradition” that is unprotected by the First Amendment).

In Stevens, 559 U.S. at 464-65, 482, the Court held unconstitutional
under the First Amendment a statute criminalizing the creation, sale, or
possession of a depiction of animal cruelty when such conduct is intended for
commercial gain in interstate or foreign commerce. The Supreme Court
declined the government’s invitation to hold that speech depicting animal
cruelty is categorically unprotected by the First Amendment. Id. at 472.
Relying, in part, upon language from the Ferber decision, the government
proposed a “simple balancing test” between the value of speech and its societal
costs to determine categories of speech that are unprotected by the First
Amendment. Id. at 470. The Supreme Court rejected such a test as “startling
and dangerous” and noted that the Court’s classification of “categories of
speech as fully outside the protection of the First Amendment” did not rest “on
the basis of a simple cost-benefit analysis.” Id. at 470-71. The Court explained
that its reasoning in Ferber rested, in part, upon the balance between the
“compelling interest in protecting children from abuse, and that the value of
using children in these works . . . was de minimis.” Id. at 471. But its
decision “did not rest on this balance of competing interests alone.” Id.
(quotation omitted). Rather, Ferber was also grounded in a “previously
recognized, long-established category of unprotected speech”; that is, speech
which is ‘“used as an integral part of conduct in violation of a valid criminal
statute.’” Id. (quoting Ferber, 458 U.S. at 761-62).

The defendant interprets this language in Stevens as supporting his
contention that the speech at issue must bear a close causal connection to
criminal activity to be categorically unprotected by the First Amendment
because it is child pornography. On this point, we agree. See Stevens, 559
U.S. at 471; Zidel, 156 N.H. at 693. The criminal activity underlying child
pornography is “the production of such materials, an activity illegal throughout
the Nation.” Stevens, 559 U.S. at 471 (quotation omitted); see Free Speech
Coalition, 535 U.S. at 254 (“In the case of the material covered by Ferber, the
creation of the speech is itself the crime of child abuse . . . .”). As the Eighth
Circuit Court of Appeals recently explained, “[w]hen the Court spoke of speech
used as an integral part of conduct in violation of a ‘valid criminal statute,’ it
was referring to statutes forbidding the production of child pornography.”
United States v. Rouse, 936 F.3d 849, 851-52 (8th Cir. 2019); see Anderson,
759 F.3d at 894 (explaining that Stevens noted that Ferber held child
pornography was categorically unprotected “because it involved visual
depictions that were produced through sexual abuse of one or more children”).
The defendant argues, however, that the “images at issue here depict[] lawful
consensual activity” and were not distributed and thus were not “an integral

7
part of conduct in violation of a valid criminal statute.” This argument
miscomprehends Ferber, as explained by Stevens. See Rouse, 936 F.3d at
851-52.

In Rouse, the Eighth Circuit considered, and rejected, the defendant’s
argument here on facts nearly identical to those now before us. See Rouse,
936 F.3d at 850-52. There, the court considered the constitutionality, under
the First Amendment, of a defendant’s indictment on child pornography
charges stemming from videos he took of his consensual sexual activity with a
16-year-old minor. Id. at 850-51. The defendant did not send the videos to
anyone but the minor, and their sexual relationship was legal. Id. at 850, 851.
He argued that Stevens only placed child pornography “outside the scope of the
First Amendment . . . if it is integral to a violation of a separate statute that
criminalizes sexual abuse of a minor.” Id. at 851. According to Rouse, the
images were protected by the First Amendment because the minor “had
reached the age of consent . . . , and consented to engage in sexual activity
with [him], the government alleges no crime or sexual abuse other than the
production and distribution of child pornography.” Id.

The Eighth Circuit disagreed, concluding that the crime underlying the
child pornography exception is “the unlawful production of the images
themselves.” Id. at 852 (citing Stevens, 559 U.S. at 471). Because the
defendant’s actions were “intrinsically related to the unlawful production of”
the images, they were “categorically unprotected under the First Amendment,”
“even if the sexual activity [was] legal . . . .”6 Id.

We agree with the Eighth Circuit that Stevens did not disturb the
Supreme Court’s previous holdings that producing and possessing images of
an actual child engaged in sexual activity are unprotected by the First
Amendment, regardless of whether the underlying sexual activity was legal.7
See Osborne, 495 U.S. at 111; Ferber, 458 U.S. at 765; Rouse, 936 F.3d at
852. The criminal conduct underlying child pornography is not statutory rape,

6
The defendant in Rouse, 936 F.3d at 850, was charged with distributing child pornography,
while the defendant here argues that the fact that he did not distribute the images weighs in favor
of finding his conviction unconstitutional. He posits that “[f]or [the minor] and [him], the images
here were not ‘pornography’; they were a chronicle of their own lawful, intimate relationship.” The
defendant in Rouse, however, only distributed the images to the 16-year-old herself, and thus the
circumstances are substantially similar to those here. See Rouse, 936 F.3d at 850. We thus do
not apprehend that difference as a basis for distinguishing Rouse.
7
We note that Stevens was not a case concerning child pornography. See Stevens, 559 U.S. at
464-65. The Supreme Court discussed child pornography in Stevens as a means of explaining
why it would not find that images depicting animal abuse are unprotected speech. See id. at 470-
72. We are hesitant to reconceptualize the First Amendment child pornography doctrine based
upon a case in which the issue was not presented. See Central Va. Community College v. Katz,
546 U.S. 356, 363 (2006) (“[W]e are not bound to follow our dicta in a prior case in which the
point now at issue was not fully debated.”).

8
but recording a child engaged in sexual conduct. See Stevens, 559 U.S. at 471.
Furthermore, the images need not be distributed to implicate that criminal
conduct. See Osborne, 495 U.S. at 109-10; Ferber, 458 U.S. at 764. When
determining whether an image is unprotected by the First Amendment, “[t]he
underlying inquiry is whether [it] implicates the interests of an actual minor.”
Hotaling, 634 F.3d at 729; see Ferber, 458 U.S. at 764-65 (noting that
depictions of sexual conduct that “do not involve live performance” of children
“below a specified age” retain First Amendment protection).

The defendant’s actions at issue here were intrinsically related to the
production of child pornography with an actual child, implicating her interests,
and thus the defendant’s conduct falls outside the scope of First Amendment
protection.8 See Rouse, 936 F.3d at 852. Furthermore, the minor’s interests
were affected by the production of the photograph and videos at issue here
despite the fact that she was old enough to consent to the sexual activity and
the defendant was not charged with distributing the photograph and videos.

As we explained in Zidel, “the purpose of RSA 649-A:3 is to prevent harm
to children resulting from their ‘use as subjects in sexual performances.’”
Zidel, 156 N.H. at 693 (quoting RSA 649-A:1). Neither the harm described
there, nor the harm articulated in Ferber, that “the use of children as subjects
of pornographic materials is harmful to the physiological, emotional, and
mental health of the child,” Ferber, 458 U.S. at 758, is not implicated merely
because the underlying conduct, i.e. the sexual activity, is legal. Consenting to
sexual intercourse and consenting to having that act memorialized, potentially
forever, are decisions of different degrees, with corresponding consequences of
different magnitudes. See Fletcher, 634 F.3d at 403 (commenting that the
legislature “may legitimately conclude that even a willing or deceitful minor is
entitled to governmental protection from self-destructive decisions that would
expose him or her to the harms of child pornography” (quotation omitted)); see
also Miller v. Alabama, 567 U.S. 460, 471 (2012) (recognizing that children
have a “lack of maturity and an underdeveloped sense of responsibility, leading
to recklessness, impulsivity, and heedless risk-taking” (quotation omitted)).
Nor are those harms not implicated simply because the images are not
distributed. See United States v. Ortiz-Graulau, 526 F.3d 16, 19 (1st Cir.
2008) (noting that “preventing exploitation of children could be aided by the
[the federal child pornography] statute’s broad ban on taking such photographs
even for private use”). Accordingly, we conclude that RSA 649-A:3 and :3-b are
not unconstitutional as applied to the defendant.

8
We note that the defendant does not argue that the First Amendment applies differently to his
manufacturing child sexual abuse images convictions than to his conviction for possession of
such images.

9
 B. “Opening the Door” in the State’s Opening Statement

We next address the defendant’s argument that the trial court erred by
denying his request to cross-examine the minor about her prior sexual history
in response to the State’s opening statement. In its opening statement, the
State made the following remarks:

The Defendant, the adult, used [the minor]. He directed her to
obtain images and videos of a sexually explicit nature. She was
unsure of how to act, so he made sure to tell her where and how to
stand, what to wear, how to [perform fellatio], actions that were
unnatural to [the minor] who was nearly half his age.

(Emphasis added.) The defendant maintains that the State’s use of the word
“unnatural” opened the door to admit evidence about the minor’s prior sexual
history and experience taking sexual photographs, because the State intimated
that the minor was sexually inexperienced when she was not, and therefore
may have improperly biased the jury against him.

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. See State v. DePaula, 170 N.H. 139, 146 (2017). To
prevail, the defendant must show that the trial court’s ruling was clearly
untenable or unreasonable to the prejudice of his case. State v. Plantamuro,
171 N.H. 253, 255 (2018). 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 State argues that the defendant has not preserved this claim
because he did not argue to the trial court that the State’s use of the word
“unnatural” was prejudicial. To preserve an argument that the trial court
erroneously excluded evidence at trial, a party generally must make an offer of
proof that apprises the trial court of the specific nature of the evidence and
why it is admissible. Id. at 259. The defendant met this threshold, by
proffering the specific statements about which he sought to cross-examine the
minor and by arguing that the State’s comment rendered admissible, or opened
the door to, this evidence to correct the misimpression that the comment may
have created. Accordingly, we reject the State’s preservation argument.

Remarks in opening statements may trigger the “opening the door”
doctrine. See State v. Nightingale, 160 N.H. 569, 579 (2010). That doctrine
itself subsumes two distinct doctrines, the “curative admissibility” and the
“specific contradiction” doctrines. DePaula, 170 N.H. at 146. 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

10
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 defendant argues that,
under either doctrine, the trial court erred by refusing his request to admit
evidence of the minor’s prior sexual history and history of taking sexual
photographs.

We need not decide which doctrine applies here because the defendant
has failed to show that the trial court’s exercise of discretion was
unsustainable under either. The trial court found that the State used
“unnatural” in reference to certain actions being unnatural, and impliedly
found that the State did not represent the minor as “a sexual innocent.” The
trial court therefore concluded that admitting evidence of the minor’s prior
sexual history was unwarranted.

The trial court’s conclusion that the State used “unnatural” to describe a
specific instance of fellatio and did not represent the minor as a sexual
innocent was reasonable because in that instance the defendant apparently
instructed the minor on how to perform the act. In light of this reasonable
determination, the “unnatural” comment did not warrant admission of the
minor’s prior sexual history because it did not create the presumption that she
had never engaged in sexual activity before, only that she was not performing
fellatio as the defendant preferred in that instance. Therefore, the comment
created neither prejudice, as required by the curative admissibility doctrine,
nor a misleading advantage, as required by the specific contradiction doctrine.

One additional matter bears brief discussion. Since drawing the
distinction between the curative admissibility and specific contradiction
doctrines, our jurisprudence on this topic has applied only the specific
contradiction doctrine, not the curative admissibility doctrine. See, e.g.,
DePaula, 170 N.H. at 146; State v. Mazzaglia, 169 N.H. 489, 495 (2016); State
v. Gaudet, 166 N.H. 390, 396 (2014); Nightingale, 160 N.H. at 579; State v.
Wamala, 158 N.H. 583, 589 (2009); State v. White, 155 N.H. 119, 124 (2007);
see also State v. Morrill, 154 N.H. 547, 549-50 (2006) (drawing the distinction
between the two but applying neither). Here, the defendant at trial invoked
only the opening the door doctrine, but focuses his argument on appeal on the
curative admissibility doctrine. We therefore take the opportunity to reaffirm
what we stated in Morrill: “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
make clear which of the above doctrines is being invoked.” Morrill, 154 N.H. at
550. Under the curative admissibility doctrine, “a trial judge has discretion to
admit otherwise inadmissible evidence in order to rebut prejudicial evidence
that has already been erroneously admitted.” Id. at 549. Under the specific
contradiction doctrine, a trial judge has discretion to admit “previously

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suppressed or otherwise inadmissible evidence to directly counter the
misleading advantage” triggered by the introduction of admissible evidence. Id.
at 550. “Identifying the particular doctrine will permit more focused
discussions between litigants and judges and will prevent further erosion of the
unique requirements of each doctrine.” Id.

III. Conclusion

For the reasons stated above, we affirm the defendant’s convictions for
manufacturing and possession of child sexual abuse images. We consider as
waived any arguments raised in the defendant’s notice of appeal, but not
briefed. State v. Fiske, 170 N.H. 279, 292 (2017).

Affirmed.

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

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