Petition of Devin Miles

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by email at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: https://www.courts.nh.gov/our-courts/supreme-court
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2020-0569
PETITION OF DEVIN MILES
Argued: December 14, 2021
Opinion Issued: September 2, 2022
Kirsten Wilson Law, PLLC, of Portsmouth (Kirsten B. Wilson on the brief
and orally), for the petitioner.
John M. Formella, attorney general (Elizabeth C. Woodcock, senior
assistant attorney general, on the brief and orally), for the State.
DONOVAN, J. The petitioner seeks certiorari review of decisions of the
Merrimack County Superior Court (Kissinger, J.) denying his motion to quash
an indictment against him, his renewed motion to quash, his motion for
interlocutory appeal, and his motion for findings of fact and rulings of law. The
petitioner argues that the court erred by failing to quash the indictment
because, in his view, the indictment was contrary to RSA 169-B:4, VII (Supp.
2021) and violated New Hampshire Rule of Criminal Procedure 20(a)(4) as well
as his double jeopardy rights pursuant to the State and Federal Constitutions.
We affirm.
The following facts are supported by the record or are otherwise
undisputed. In July 2019, law enforcement received a report that the
petitioner had sexually assaulted the alleged victim. At the time of the
investigation, the alleged victim was six years old and the petitioner was
seventeen years old. According to the State, the alleged victim claimed that the
petitioner sexually assaulted her “repeatedly at her grandmother’s house in
Rockingham County and one time” in Merrimack County in the Town of Bow,
on December 25, 2018.
In August 2019, the State filed three juvenile delinquency petitions
against the petitioner in the family division of the circuit court. One of the
juvenile petitions charged the petitioner with a pattern of aggravated felonious
sexual assault (AFSA). The petition alleged that the acts comprising the
pattern occurred in Rockingham County on four specific dates: June 22, 2018;
August 24, 2018; September 15, 2018; and May 27, 2019. The State
subsequently moved to certify the petitioner as an adult and transfer the
matter to the Rockingham County Superior Court pursuant to RSA 169-B:24
(Supp. 2021). In early November 2019, the family division granted the motion
to certify the petitioner. Later that month, the petitioner turned eighteen.
In December 2019, the petitioner was indicted in Merrimack County on
one count of AFSA pursuant to RSA 632-A:2 (Supp. 2021). The indictment was
based upon the alleged sexual assault that occurred in Bow. At the time of the
indictment, the Rockingham County Superior Court had not yet ruled on the
State’s motion to certify the petitioner as an adult and transfer the juvenile
matter to the superior court. Accordingly, the petitioner filed a motion in the
Merrimack County Superior Court to “[q]uash and/or stay the litigation of the
indictment until such time as the juvenile petition has been adjudicated and
transferred to adult court.” The State filed an objection, and the court denied
the petitioner’s motion.
The petitioner subsequently filed a renewed motion to quash, asserting
that the offense alleged in the indictment fell within the time frame of the
pattern offense alleged in one of the juvenile petitions. He asserted that
“[s]ubjecting [him] to prosecution for a pattern offense as a juvenile, and a
single offense as an adult, in different courts with different fact finders, is
certainly not the intent of the legislators in drafting RSA 169-B:4, VII.” He also
argued that the indictment violated New Hampshire Rule of Criminal Procedure
20(a)(4) as well as his double jeopardy rights pursuant to the State and Federal
Constitutions. The State objected, and the Merrimack County Superior Court
denied the motion to quash. The petitioner then filed an interlocutory appeal
statement, a motion to certify the statement, and a motion for findings of fact
and rulings of law. The court denied the petitioner’s motions. This petition for
writ of certiorari followed.
In September 2020, the Rockingham County Superior Court denied
certification and transfer of the juvenile matter pursuant to RSA 169-B:24 and
remanded to the family division for further proceedings on the certification
issue. The State challenged that decision in a petition for writ of certiorari. We
2
accepted the State’s petition and consolidated the case with this appeal. In a
separate opinion, we held that the Rockingham County Superior Court erred as
a matter of law in denying certification pursuant to RSA 169-B:24 and by
remanding the case to the family division for further proceedings. See Petition
of State of New Hampshire, 175 N.H. ___, ___ (August 12, 2022) (slip op. at 10).
Accordingly, we reversed the superior court’s decision and remanded with
instructions that it grant certification of the petitioner pursuant to RSA 169-
B:24. Id.
Turning to the merits of this Rule 11 petition, we must decide whether
the Merrimack County Superior Court erred by denying the petitioner’s
motions to quash the indictment. Certiorari is an extraordinary remedy that is
not granted as a matter of right, but, rather, at the court’s discretion. Petition
of N.H. Div. of State Police, 174 N.H. 176, 180 (2021); see Sup. Ct. R. 11. Our
review of a decision on a petition for writ of certiorari entails examining
whether the trial court acted illegally with respect to jurisdiction, authority or
observance of the law, or unsustainably exercised its discretion or acted
arbitrarily, unreasonably, or capriciously. Petition of N.H. Div. of State Police,
174 N.H. at 180.
Resolving the parties’ dispute requires that we interpret the statutory
language set forth in RSA 169-B:4, VII. The interpretation of a statute presents
a question of law, which we review de novo. State v. Folds, 172 N.H. 513, 521
(2019). When interpreting a statute, we first look to the language of the statute
itself, and, if possible, construe the language according to its plain and
ordinary meaning. Id. We construe all parts of a statute together to effectuate
its overall purpose and to avoid absurd or unjust results. State v. Keenan, 171
N.H. 557, 561 (2018). Furthermore, we do not read words or phrases in
isolation, but in the context of the entire statutory scheme. Folds, 172 N.H. at
521. Absent ambiguity, we need not look beyond the statutory language to
discern legislative intent. In re J.S., 174 N.H. 375, 379 (2021).
The petitioner first argues that the trial court erred by denying his
motions to quash the indictment on the alleged December 25, 2018 assault
because, in his view, RSA 169-B:4, VII did not authorize the State to proceed
against him in the superior court. RSA 169-B:4, VII provides: “In any instance
in which the statute of limitations has not tolled and no juvenile petition has
been filed based upon acts committed before the minor’s eighteenth birthday,
the state may proceed against the person in the criminal justice system after
that person’s eighteenth birthday.” Thus, RSA 169-B:4, VII authorizes the
State to bring criminal charges against an individual who has reached the age
of majority based upon crimes that the individual committed as a minor,
provided that two conditions are met: (1) the statute of limitations has not
tolled; and (2) “no juvenile petition has been filed based upon acts committed
before the minor’s eighteenth birthday.” Id.
3
Here, there is no dispute that the applicable statute of limitations has
not tolled and, thus, that the first condition has been met. We must therefore
determine whether a “juvenile petition has been filed,” thereby precluding the
State from criminally prosecuting the petitioner for the alleged December 25
assault. Id. The plain language of this second condition could be interpreted
as precluding the State from bringing criminal charges pursuant to RSA 169-
B:4, VII if the State has ever filed a juvenile petition against the potential
defendant, regardless of whether that juvenile petition is still pending.
However, such an interpretation would effectively insulate all adults who have
had juvenile petitions filed against them in the past from being prosecuted for
crimes they committed as minors merely because they have aged out of the
juvenile system. We will not presume that the legislature intended such an
absurd result. See Hogan v. Pat’s Peak Skiing, LLC, 168 N.H. 71, 75 (2015).
Instead, to avoid this absurd result, we interpret the phrase “no juvenile
petition has been filed” as precluding the State from criminally prosecuting
individuals for acts they committed as minors only when those individuals are
subject to ongoing juvenile proceedings. See RSA 169-B:4, VII. The other
language in RSA 169-B:4 supports this interpretation. Paragraphs I through
VI of the statute set forth the circumstances under which the family division
may exercise and retain juvenile jurisdiction over individuals who have turned
eighteen. See RSA 169-B:4, I-VI (Supp. 2021). When paragraphs I through VI
are read together with the language of paragraph VII, the phrase “no juvenile
petition has been filed” indicates that the legislature intended to preclude the
State from criminally prosecuting individuals for acts they committed as
minors if the family division still has juvenile jurisdiction over those
individuals. See Keenan, 171 N.H. at 561 (explaining that we “construe all
parts of a statute together to effectuate its overall purpose and avoid absurd or
unjust results”).1
We conclude that the second condition set forth in RSA 169-B:4, VII does
not preclude criminal prosecution in this case because there are no longer any
ongoing juvenile proceedings involving the petitioner. As noted above, in
Petition of State of New Hampshire, 175 N.H. at ___ (slip op. at 10), we held
that the Rockingham County Superior Court erred by denying certification of
the petitioner as an adult pursuant to RSA 169-B:24. Accordingly, we reversed
and remanded with instructions that the superior court grant certification and
transfer the case from the family division. Petition of State of New Hampshire,
175 N.H. at ___ (slip op. at 10). Nothing in the record indicates that there are
any other pending juvenile matters involving the petitioner. Therefore, because
the family division no longer has juvenile jurisdiction over the petitioner, the
1To be clear, we do not conclude that any ongoing juvenile proceeding will preclude the State from
criminally prosecuting individuals for acts they committed as minors. Rather, we conclude that,
at a minimum, there must be an ongoing juvenile proceeding for the second condition of RSA 169-
B:4, VII to apply.
4
State “may proceed against [him] in the criminal justice system.” RSA 169-B:4,
VII. To the extent that the petitioner argues that the juvenile proceedings were
ongoing at the time of the December 2019 indictment — and, thus, that RSA
169-B:4, VII did not authorize the State to bring criminal charges — that issue
is moot. See In the Matter of O’Neil & O’Neil, 159 N.H. 615, 624 (2010)
(“Generally a matter is moot when it no longer presents a justiciable
controversy because issues involved have become academic or dead” (quotation
omitted)).
The petitioner next argues that the indictment is contrary to New
Hampshire Rule of Criminal Procedure 20(a)(4). That rule provides, in part:
[A] defendant shall not be subject to separate trials for
multiple offenses based on the same conduct or arising from
the same criminal episode, if such offenses are known to the
appropriate prosecuting officer at the time of the
commencement of the first trial and are within the jurisdiction
of a single court.
The petitioner argues that the Merrimack County AFSA indictment is
contrary to Rule 20(a)(4) because the alleged December 25, 2018 assault “falls
squarely during the pattern charge which is the basis of the alleged conduct in
the juvenile petition.” In the petitioner’s view, the offense alleged in the
indictment “aris[es] from the same criminal episode” as the pattern offense
alleged in one of the juvenile petitions. Id. For the purposes of resolving this
argument, we assume, without deciding, that Rule 20(a)(4) applies to offenses
charged in the juvenile system. Nonetheless, we conclude that Rule 20(a)(4) is
inapplicable.
In State v. Reinholz, 169 N.H. 22 (2016), we held that Rule 20(a)(4) did
not require the State to have brought two pattern AFSA charges against the
defendant at the same time that it brought two charges for individual acts of
sexual assault, even though the pattern charges “spanned the same time
period, concerned the same victim, and involved the same types of sexual acts”
as the individual acts. Reinholz, 169 N.H. at 26-27. We explained that,
although “it is possible that the individual acts of sexual assault . . . each
comprised one of the predicate acts necessary to establish the corresponding
pattern AFSA charge[s],” “the opposite could also be true.” Id. at 26. We
further observed:
[H]ad the defendant or the State so requested, either would
have been entitled to an instruction informing the jury that it
could not use the same alleged act of sexual assault both to
comprise a part of the pattern supporting a conviction on a
pattern AFSA charge and to support a conviction upon an
individual charge based upon that act.
5
Id. at 27. We therefore concluded that the pattern AFSA charges were not
based upon the same conduct and did not arise from the same criminal
episode, and, thus, Rule 20(a)(4) did not require joinder. Id.
Based upon our holding in Reinholz, we conclude that Rule 20(a)(4) did
not require the State to join the offense alleged in the indictment with the
pattern offense alleged in one of the juvenile petitions. Although the alleged
December 25 assault involved the same victim and the same type of conduct
and occurred during the same time frame as the pattern alleged in the juvenile
petition, the State did not charge it as part of the pattern offense in the juvenile
petition, and the State was not required to prove the December 25 assault in
order to establish the pattern offense. See Reinholz, 169 N.H. at 26-27.
The petitioner also argues that the indictment violates his double
jeopardy rights pursuant to the Federal and State Constitutions. We decline to
address the petitioner’s double jeopardy argument because the argument is
premature. The petitioner concedes that “prosecution for separate predicate
offenses [is] acceptable provided they were not relied upon for proof of the
pattern offense.” Moreover, as the State points out, “the possibility that the
Merrimack charge could somehow become part of the Rockingham petition is
easily solved by a pre-hearing motion in limine” to preclude consideration of
the alleged December 25 assault as part of the pattern. See id.
Finally, although the petitioner challenges the court’s denial of his
motion to certify an interlocutory appeal statement as well as his motion for
findings of fact and rulings of law, he makes no developed argument
specifically regarding the denial of either motion. Accordingly, we decline to
address any challenge to those decisions. See State v. Blackmer, 149 N.H. 47,
49 (2003) (“[W]e confine our review to only those issues that the defendant has
fully briefed.”).
Affirmed.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred; ABRAMSON,
J., retired superior court justice, specially assigned under RSA 490:3,
concurred.
6