Petition of State of New Hampshire

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
___________________________
Rockingham
No. 2021-0609
PETITION OF THE STATE OF NEW HAMPSHIRE
Argued: June 23, 2022
Opinion Issued: August 12, 2022
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief,
and Anthony J. Galdieri on the brief and orally), for the State.
Kirsten Wilson Law, PLLC, of Portsmouth (Kirsten B. Wilson on the brief
and orally), for the respondent.
DONOVAN, J. This court accepted the State’s Rule 11 petition for
original jurisdiction to determine whether the Superior Court (Wageling, J.)
erred by denying the State’s petition to certify the respondent as an adult
pursuant to RSA 169-B:24 (Supp. 2021) and remanding the case to the family
division of the circuit court for further proceedings. We hold that the superior
court erred by denying the State’s certification petition, and reverse and
remand.
I. Facts
The following facts are supported by the record or are otherwise
undisputed. In August 2019, the State filed three juvenile delinquency
petitions against the respondent in the family division charging him with one
count of pattern aggravated felonious sexual assault (AFSA), one count of
felonious sexual assault, and one count of indecent exposure. The AFSA
petition alleged that the acts comprising the pattern offense occurred in
Rockingham County on four specific dates: June 22, 2018; August 24, 2018;
September 15, 2018; and May 27, 2019. When the petitions were filed, the
alleged victim was six years old and the respondent was seventeen years old.
The respondent turned eighteen in November 2019 and is presently twenty
years old.
After filing the petitions, the State, pursuant to RSA 169-B:24, petitioned
to certify the respondent as an adult and transfer the case to superior court.
In November 2019, before the respondent’s eighteenth birthday, the family
division held a hearing on the petition to transfer. The State presented the
testimony of a police sergeant who assisted in the investigation and who
observed the alleged victim’s two Child Advocacy Center (CAC) interviews,
videos of which were included as part of the family division’s record. In both
CAC interviews, the alleged victim stated that, on several occasions at her
grandparents’ home in Atkinson and at her own home in another county, the
respondent open-mouth kissed her, rubbed her genitals, and exposed his
genitals to her. She also provided statements consistent with the respondent
having penetrated her during the vaginal-touching assaults.
Although the alleged victim stated that the respondent rubbed her
genitals on more than one occasion at her grandparents’ house, she did not
identify any specific dates or general time frame when these assaults occurred.
Instead, her parents provided police with dates — verified through social media
posts — when the alleged victim had recently visited her grandparents’ home
and on which they believed the respondent had the opportunity to commit the
assaults. These dates formed the basis of the pattern offense alleged in the
AFSA petition. The State also introduced a handwritten note by the
respondent — sent to the alleged victim’s parents prior to the initiation of the
police investigation — apologizing and expressing remorse for certain
unidentified actions.
In November 2019, the family division granted the petition to certify the
respondent as an adult and to transfer the case to the superior court. It
determined that, because one of the petitions alleged an AFSA and because
probable cause supported that charge, the presumption in favor of transfer set
forth in RSA 169-B:24, IV applied. The family division then analyzed the eight
factors set forth in RSA 169-B:24, I:
2
(a) The seriousness of the alleged offense to the community and
whether the protection of the community requires transfer.
(b) The aggressive, violent, premeditated, or willful nature of the
alleged offense.
(c) Whether the alleged offense was committed against persons or
property.
(d) The prospective merit of the complaint.
(e) The desirability of trial and disposition of the entire offense in
one court if the minor’s associates in the alleged offense were adults
who will be charged with a crime.
(f) The sophistication and maturity of the minor.
(g) The minor’s prior record and prior contacts with law
enforcement agencies.
(h) The prospects of adequate protection of the public, and the
likelihood of reasonable rehabilitation of the minor through the
juvenile court system.
RSA 169-B:24, I.
The family division concluded that, on balance, the eight criteria favored
transfer. Specifically, the family division found that factors (a) through (c)
supported transfer because the respondent’s actions were serious, violent, and
committed against a person. It further found that factors (f) and (h) supported
transfer because the respondent was “mature for his age” and, at the time of
the hearing, he was less than three weeks away from turning eighteen, which
provided “insufficient time to implement any meaningful rehabilitation
services.”
As to factor (d) — the “prospective merit of the complaint,” RSA 169-
B:24, I(d) — the family division found that credible evidence supported the
AFSA petition. The family division relied upon the alleged victim’s statements
describing the “numerous alleged sexual assaults” and credited the evidence
demonstrating “that those assaults occurred over the period from June 2018 to
May 2019.” The family division found that only factors (e) and (g) did not favor
transfer because no adult associates were involved in the alleged crimes and
the respondent had no prior record. Moreover, the family division found that,
even if the presumption did not apply, the State had met its burden of proving
by a preponderance of the evidence that transfer was appropriate.
3
In December 2019, the State petitioned the superior court to accept the
transfer. Due to restrictions caused by the COVID-19 pandemic, the superior
court did not hold a hearing on the merits until August 2020. At the hearing,
the superior court did not hear further evidence and instead relied upon the
record established before the family division. Ultimately, the superior court
denied the State’s petition to transfer and remanded to the family division for
rehearing.
The court ruled that “there was no probable cause” to support the State’s
pattern AFSA petition because “nothing in the evidence suggests [the
respondent] and [the alleged victim] were together at the grandmother’s house”
on the dates alleged in the petition. The court also found that, “even if they
were both there on one or more of those dates . . . the evidence does not
support that the [respondent] committed the acts alleged on or between those
date[s].” Therefore, the court ruled that because there was no probable cause
for the AFSA petition, the family division committed plain error in applying the
presumption in favor of transfer. Furthermore, the court opined that the
family division’s order “would have erroneously taken” its finding of probable
cause “into consideration when assessing the severity of the crimes.”
Therefore, the court ruled that the family division’s findings with respect to
some of the eight criteria set forth in RSA 169-B:24, I — with or without the
presumption applied — were “erroneous as a matter of law.”
On remand, the respondent disputed the jurisdiction of the family
division to reconsider the certification issue. Ultimately, the family division
accepted jurisdiction, and the respondent filed an interlocutory appeal
challenging the family division’s jurisdictional order. Thereafter, pursuant to
Supreme Court Rule 11, the State petitioned this court for a writ of certiorari to
review the superior court’s denial of transfer. The respondent objected, arguing
that the State’s petition was untimely. We denied the respondent’s objection
and accepted the case.
II. Analysis
In support of its petition, the State argues that the superior court erred
by rejecting the family division’s findings and declining the State’s petition to
transfer pursuant to RSA 169-B:24. 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 superior 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.
4
The standard for acceptance of certification by the superior court, and
our scope of review, are identical and of a limited nature. In re Eduardo L.,
136 N.H. 678, 683 (1993). Pursuant to RSA 169-B:24, the decision to transfer
a juvenile to superior court for adult prosecution falls within the family
division’s sound discretion. Id. Accordingly, we review the family division’s
order to determine whether it fairly considered the factors set forth in RSA 169-
B:24 and whether its decision is supported by the evidence and not erroneous
as a matter of law. In re Erik M., 146 N.H. 508, 510 (2001). The superior
court’s review of the family division’s order is similarly limited in scope. Id. We
work from the same record as the superior court and, thus, owe no deference
to that court’s decision. Id.As an initial matter, the respondent challenges the timeliness of the
State’s Rule 11 petition for original jurisdiction. Rule 11 does not specify a
filing deadline. See Sup. Ct. R. 11. Nonetheless, as the respondent points out,
we have previously exercised our discretion to bar petitions for writs of
certiorari when such petitions were filed after an unreasonable period of time.
See Petition of State of N.H. (State v. Fischer), 152 N.H. 205, 208 (2005)
(superseded on other grounds by rule). We have held that a reasonable period
for filing a petition for writ of certiorari should be determined by the appeal
period set forth in a substantively analogous statute or situation. Wilson v.
Personnel Comm’n, 117 N.H. 783, 784 (1977). Here, the respondent argues
that RSA 606:10, II (2001) provides a substantively analogous statute or
situation. In his view, because appeals under RSA 606:10, II are subject to the
same timeliness requirements that govern appeals under Supreme Court Rules
7 through 9, id., the State’s Rule 11 petition — filed approximately fifteen
months after the superior court’s decision — was untimely. We disagree. RSA
606:10, II provides, in relevant part:
II. An appeal may be taken by the state in criminal cases on
questions of law from the district or municipal courts or from the
superior court to the supreme court from:
(a) An order of the court prior to trial which suppresses any
evidence including, but not limited to, physical or identification
evidence or evidence of a confession or admission;
(b) An order prior to trial which prevents the state from obtaining
evidence;
(c) A pretrial dismissal of an indictment, information or complaint;
or
(d) Any other order of the court prior to trial if, either because of
the nature of the order in question or because of the particular
circumstances of the case, there is a reasonable likelihood that such
5
order will cause either serious impairment to or termination of the
prosecution of any case.
RSA 606:10, II.
We conclude that RSA 606:10, II is not substantively analogous to the
State’s Rule 11 petition in this case. RSA 606:10, II pertains to criminal
proceedings, whereas juvenile proceedings are civil in nature and “separate
from the trial of criminal cases.” RSA 169-B:16, I (2014); see In re Russell C.,
120 N.H. 260, 267 (1980) (noting that “[t]he purposes and procedures
delineated in RSA ch. 169-B” reflect “the desire to divorce juvenile proceedings
from the criminal process whenever possible”). Moreover, the language of RSA
606:10, II demonstrates that the provision applies when the State appeals from
an order that is capable of effectively disposing of a criminal case. See RSA
606:10, II. The superior court’s decision to deny certification in this case did
not dispose of the case. To the contrary, the superior court remanded the case
to the family division for further proceedings on the certification issue.
Therefore, this case is unlike Petition of State of New Hampshire (State v.
Fischer), where the State appealed from the court’s decision suspending the
defendant’s sentence. Cf. Petition of State of N.H. (State v. Fischer), 152 N.H.
at 208.
We further conclude that the State filed its Rule 11 petition within a
reasonable period of time following the superior court’s decision. The record
demonstrates that the State did not immediately appeal the superior court’s
decision because it reasonably expected an opportunity to recertify the
respondent on remand. The family division was prevented from holding any
further substantive proceedings on remand because the respondent objected to
the family division’s jurisdiction and subsequently filed an interlocutory appeal
from the family division’s order concluding it had jurisdiction to rehear the
certification issue. While that appeal was pending, the State filed its petition in
December 2021. We further note that a determination that the superior court
erred by denying certification would moot the issue of whether the family
division had jurisdiction on remand. Accordingly, we conclude that the State’s
Rule 11 petition in this instance was timely.
In the alternative, the respondent argues that the State has not
preserved its challenge to the superior court’s denial of transfer. According to
the respondent, the State challenged the superior court’s decision for the first
time in its Rule 11 petition. The respondent, therefore, appears to take the
position that, because the State did not move for reconsideration, it forfeited its
right to seek review of the court’s ruling in this instance. We disagree.
The rationale behind our preservation requirement “is that trial forums
should have an opportunity to rule on issues and to correct errors before they
are presented to the appellate court.” Mortgage Specialists v. Davey, 153 N.H.
6
764, 786 (2006) (quotation omitted). “To satisfy this preservation requirement,
any issues which could not have been presented to the trial court prior to its
decision must be presented to it in a motion for reconsideration.” Vention
Medical Advanced Components, Inc. v. Pappas, 171 N.H. 13, 27 (2018). In its
order denying certification and transfer, the superior court addressed the
substantive arguments that the State now makes here — specifically, whether
the family division properly considered all of the factors set forth in RSA 169-
B:24 and whether the family division’s order was supported by the evidence
and not erroneous as a matter of law. Accordingly, a motion for
reconsideration was unnecessary in this instance, and we conclude that the
State preserved its arguments for our review.1
Turning to the merits, the State first argues that the superior court erred
by finding that the AFSA petition was unsupported by probable cause and,
consequently, by concluding that the presumption set forth in RSA 169-B:24,
IV did not apply. To support that argument, the State contends that the
superior court improperly analyzed the AFSA petition as charging a violation of
RSA 632-A:2, III (2016), when, in fact, the AFSA listed RSA 632-A:2, I(l) (2016)
as the charged offense. The respondent argues, on the other hand, that the
allegations set forth in the AFSA petition demonstrate that the petition charged
a pattern of AFSA in violation of RSA 632-A:2, III. We conclude that, even if the
AFSA petition charged a pattern of AFSA in violation of RSA 632-A:2, III, the
petition was supported by probable cause and, therefore, the superior court
erred by concluding that the presumption set forth in RSA 169-B:24, IV did not
apply.
RSA 169-B:24, IV states: “When the felony offense charged is . . .
aggravated felonious sexual assault . . . and the minor commits the act after
the minor’s fifteenth birthday, there shall be a presumption that the factors
listed in RSA 169-B:24, I support transfer to the superior court.” For the
purposes of this case, we assume, without deciding, that the superior court
correctly determined that the presumption set forth in RSA 169-B:24, IV
applies only when probable cause supports the charged offense. Probable
cause is more than speculation or innuendo; it means that there is sufficient,
trustworthy information to warrant a reasonable person to believe that the
juvenile has committed a felony offense. State v. Castine, 172 N.H. 562, 568
(2019).
We conclude that the record supports a finding of probable cause that
the respondent committed a pattern of AFSA pursuant to RSA 632-A:2, III. The
1 Additionally, the respondent argues that discovery and due process violations present
independent grounds to affirm the superior court’s denial of transfer. However, the respondent
presents no factual support or legal authority to support his argument. Because we confine “our
review to only those issues that the defendant has fully briefed,” we decline to address these
arguments. State v. Blackmer, 149 N.H. 47, 49 (2003).
7
State’s petition alleged that the respondent engaged in a pattern of aggravated
felonious sexual assault of the alleged victim “over a period of two months or
more and within a period of five years, by knowingly engaging in sexual
penetration.” Relevant to the facts alleged in the petition, RSA 632-A:2, I(l)
provides: “A person is guilty of the felony of aggravated felonious sexual assault
if such person engages in sexual penetration with another person . . . [w]hen
the victim is less than 13 years of age.” In turn, RSA 632-A:2, III provides, in
part: “A person is guilty of aggravated felonious sexual assault when such
person engages in a pattern of sexual assault against another person, not the
actor’s legal spouse, who is less than 16 years of age.” The term “pattern of
sexual assault” means “committing more than one act under RSA 632-A:2 or
RSA 632-A:3, or both, upon the same victim over a period of 2 months or more
and within a period of 5 years.” RSA 632-A:1, I-c (2016).
Here, the record contains sufficient, trustworthy information to warrant a
reasonable person to believe that the respondent engaged in a pattern of
sexually assaulting the alleged victim — who was approximately six years old
— by penetration between June 2018 and May 2019. In her CAC interviews,
the alleged victim stated that the respondent rubbed her genitals on more than
one occasion while they were both at her grandparents’ home. She also
provided statements consistent with the respondent having penetrated her
during the sexual assaults by touching.
At the family division hearing, the police sergeant testified that he
identified the specific dates of the alleged assaults through the parents’
statements about when the alleged victim had been at the grandparents’ house
with the respondent in the past two years. Those dates formed the basis of the
AFSA pattern petition. The police sergeant further testified that the parents
verified their recollections of the dates through social media posts, which they
provided to the police. Even if those posts did not reference the respondent,
the alleged victim’s allegations that the respondent sexually assaulted her at
her grandparents’ house, when coupled with the parents’ recollections of when
the respondent would have had an opportunity to do so, constitute probable
cause that the alleged assaults occurred during the time frame alleged in the
petition.
Although we share the superior court’s reservations that, based upon the
record established in the family division, the respondent cannot be placed with
certainty at the grandparents’ house with the alleged victim on the specific
dates alleged in the AFSA petition, we note that “a hearing conducted pursuant
to [RSA 169-B:24] must be limited to the question of transfer to the superior
court and may not be adjudicatory.” In re Vernon E., 121 N.H. 836, 844
(1981). Indeed, “[t]o subject the juvenile to an adjudicatory proceeding, other
than one limited to the question of transfer . . . amounts to double jeopardy.”
State v. Smagula, 117 N.H. 663, 669 (1977). Here, in rejecting the family
division’s finding with respect to probable cause, the superior court’s order
8
imposed a level of scrutiny to the allegations — akin to a trial on the merits —
not required, nor permitted, at this stage in the proceeding. Accordingly, we
conclude that the superior court erred as a matter of law by finding that the
record lacked sufficient evidence supporting a finding of probable cause that
the respondent committed a pattern of AFSA. We therefore conclude that the
family division’s decision to apply the presumption set forth in RSA 169-B:24,
IV “is supported by the evidence and is not erroneous as a matter of law.” In re
Eduardo L., 136 N.H. at 684.
We now turn to the respondent’s argument that, on balance, the eight
factors set forth in RSA 169-B:24, I, did not weigh in favor of transfer. “The
State is not required to prove beyond a reasonable doubt each of the eight
criteria set forth in RSA 169-B:24.” Id. “Rather, the decision to transfer is
within the reasonable discretion of the [circuit] court, based upon a
preponderance of the evidence, with due consideration given to each factor set
forth in the statute.” Id.We conclude that the record supports, by a preponderance of the
evidence, the family division’s finding that, on balance, the factors listed in RSA
169-B:24, I, favored transfer. We begin by noting that the record supports the
family division’s findings that only factors (e) and (g) did not favor transfer
because no adult associates were involved in the alleged crimes and the
respondent has no prior record. See RSA 169-B:24, I(e)-(g). With respect to
the first three factors, it is axiomatic that the charged AFSA pattern offense is
serious and violent, and was allegedly committed against a minor person. See
RSA 169-B:24, I(a)-(c). Further, the respondent’s academic and behavioral
history, which includes allegations that he committed these acts from the age
of sixteen until past his seventeenth birthday, supports the family division’s
findings that the respondent’s maturity favored transfer. See RSA 169-B:24,
I(f). Moreover, the fact that the respondent was less than three weeks from
turning eighteen at the time of the hearing also supports the family division’s
finding that there was “insufficient time” to implement meaningful
rehabilitation services for the respondent through the juvenile system. See
RSA 169-B:24, I(h).
With respect to the “prospective merit” of the petition, RSA 169-B:24,
I(d), we have held that, “[i]n a juvenile certification hearing, prospective merit
exists when there is evidence upon which a grand jury may be expected to
return an indictment.” In re Farrell, 142 N.H. 424, 428 (1997). Therefore,
review of the “prospective merit” criterion is essentially a determination as to
whether probable cause exists. See Moody v. Cunningham, 127 N.H. 550, 554
(1986) (“An indictment represents the conclusion of a grand jury that probable
cause exists to believe that a defendant has committed a particular crime.”).
Because we conclude that the record supports the family division’s probable
cause finding, we likewise conclude that the prospective merit criterion favored
transfer as well.
9
Considering these findings favoring transfer, and the application of the
presumption pursuant to RSA 169-B:24, IV, we hold that the superior court
erred when it denied the State’s petition to certify the respondent as an adult.
We, therefore, reverse and remand this case to the superior court and direct
that the superior court grant certification of the respondent.
Reversed and remanded.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred; ABRAMSON,
J., retired superior court justice, specially assigned under RSA 490:3,
concurred.
10