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State v. Jones

Supreme Court of New Hampshire

July 10, 2008

State of New Hampshire
v.
Jerry Jones

UNPUBLISHED OPINION

The defendant, Jerry Jones, appeals his convictions for aggravated felonious sexual assault. He argues that the trial court erred in admitting testimony that he possessed child pornography on his computer. We affirm.

The admissibility of evidence is generally within the trial court's sound discretion; we will not reverse its admission of evidence absent an unsustainable exercise of discretion. State v. Lopez, 156 N.H. 416, 420 (2007).

The defendant argues that the issue in this case is whether the trial court erred in admitting evidence under the doctrine of specific contradiction. See State v. White, 155 N.H. 119, 124 (2007) ("opening the door" doctrine subsumes within it doctrines of curative admissibility and specific contradiction). The doctrine of specific contradiction applies when a party has introduced admissible evidence that creates a misleading advantage and the opposing party is then permitted to introduce otherwise inadmissible evidence to counter the misleading advantage. Id. The party must introduce evidence that provides a justification beyond mere relevance for the opponent's introduction of evidence that may otherwise be inadmissible. Id. The rule prevents a party from successfully excluding evidence favorable to his opponent, and then selectively introducing this evidence for his own advantage, without allowing the opponent to place the evidence in proper context. Id.

The defendant argues that his counsel's opening statement and cross-examination of the victim's aunt did not create a misleading impression. During opening statements, defense counsel argued that the State's case was weak because there were no "objective signs" that corroborated the victim's story and further stated, "ask yourselves whether there is any other evidence to back up these statements or whether her descriptions of these things are somewhat bizarre and farfetched." During cross-examination, defense counsel asked the victim's aunt whether she had ever: (1) seen the defendant viewing pornography on his or her computer; (2) found evidence that anyone had viewed pornography on her computer; or (3) seen the defendant showing the victim pornography or playing pornographic games on the computer. The State argued that this opened the door to testimony that the aunt had found child pornography on the defendant's computer when she went to examine it after the victim disclosed the assaults to her. The trial court agreed, finding that the cross-examination had opened the door to allow the State to rebut the impression that the defendant did not possess and did not look at child pornography.

We note first that, although the defendant argues on appeal that testimony about the lack of pornography should not have allowed the State to introduce evidence of child pornography, the defendant did not so tailor his objection to the aunt's testimony at trial. See State v. Pepin, 156 N.H. 269, 275 (2007) (defendant must make specific and contemporaneous objection during trial to preserve issue for appellate review). We therefore do not review that claim of error. Having reviewed the very selective introduction of evidence by defense counsel concerning the presence of pornography on the defendant's computer, we find no error in the trial court's admission of the aunt's testimony on redirect examination.

Given the admission of the aunt's testimony, the additional limited testimony by the police officer concerning the presence of child pornography was cumulative. Moreover, it was limited, and the trial court did not allow a display or description of the pornographic images.

Affirmed.

DUGGAN, GALWAY and HICKS, JJ., ...


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