2021-0609, Petition of State of New Hampshire

remand. court erred by de nying the State’s certification petition, and reverse and divisio n of the circuit court for further proceedings. We hold that the superior pursuant to RSA 169 - B:24 (Supp. 2021) and remand ing the case to the family erred by denying the State’s petition to certify the respondent as an adult original jurisdiction to determine whether the Superior Court (Wageling, J.) DONOVAN, J. This court accepted the State’s Rule 11 petition for

and orally), for the respondent. Kirsten Wilson Law, PLLC, of Portsmouth (Kirsten B. Wilson on the brief

and Anthony J. Galdieri on the brief and orally), for the State. general (Elizabeth C. Woodcock, senior assistant attorney general, on the brief, John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 20 21 - 0609 Rockingham

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

factors set forth in RSA 169 - B: p. 2 24, I: forth in RSA 169 - B:24, IV applied. The family division then analyzed the eight probable cause supported that charge, the presumption in favor of transfer set determi ned that, because one of the petitions alleged an AFSA and because respondent as an adult and to transfer the case to the superior court. It In November 2019, the family division granted the petition to certify the

unidentified actions. police investigation — apologizing and expressing remorse for certain respondent — sent to the alleged victim’s parents prior to the initiation of the AFSA petition. The State also introduced a handwritten note by the assaults. These dates formed the basis of the pattern offense alleged in the and on which they believed the respondent had the opportunity to commit the posts — when the alleged victim had recently visited her grandparents’ home Instead, her parents provided police with dates — verified through social media identify any specific dates or general time frame when these a ssaults occurred. genitals on more than one occasion at her grandparents’ house, she did not Although the alleged victim stated that the respondent rubbed her

having p enetrated her during the vaginal - touching assaults. genitals to her. She also provided statements consistent with the respondent respondent open - mouth kissed her, rubbed her genitals, and exposed his grandparents’ home in Atkinson and at her own home in another county, the CAC interviews, the alleged victim stated that, on several occasions at her videos of which were included as part of the family division’s record. In both observed the alleged victim’s two Child Advocacy Center (CAC) interviews, testimony of a police s ergeant who assisted in the investigation and who division held a hearing on the petition to transfer. The State presented the In November p. 2 2019, before the respondent’s eighteenth birthday, the family to certify the respondent as an adult and transfer the case to superior court. After filing the petitions, the State, pursuant to RSA 169 - B:24, petitioned

years old. The respondent turned eighteen in November p. 2 2019 and is presently twenty alleged victim was six years old and the respondent was seventeen years old. September 15, 2018; and May 27, 2019. When the petitions were filed, the Rockingham County on four specific dates: June 22, 2018; August 24, 2018; petition alleged that the acts comprising the pattern offense occurred in felonious sexual assault, and one count of indecent exposure. The AFSA count of pattern aggravated felonious sexual assault (AFSA), one count of petitions against the respondent in the family division charging him with one undisputed. In Augu st 2019, t he State filed three juvenile delinquency The following facts are supported by the record or are otherwise

by a preponderance of the evid ence that transfer was appropriate. even if the presumption did not apply, the State had met its burden of proving the respondent had no prior record. Moreover, the family division found that, transfer because no adult associates were involved in the alleged crimes and May 2019.” The family division found that only factors (e) and (g) did not favor demonstrating “that those assaults occurred over the period from June 2018 to describing the “numerous alleged sexual assaults” and credited the evidence AFSA petition. The family division relied upon the alleged victim’s statements B:24, I(d) — the family division found that credible evidence supported the As to factor (d) — the “prospective merit of the complaint,” RSA 169 -

services.” provided “insufficient time to implement any meaningful rehabilitation the hearing, he was less than three weeks away from turning eighteen, which transfer because the respondent was “mature for his age” and, at the time of committed against a pe rson. It further found that factors (f) and (h) supported supported transfer because the respondent’s actions were serious, violent, and transfer. Specifically, the family division found that factors (a) through (c) The family division concluded that, on balance, the eight criteria favored

juvenile court system. likelihood of reasonable rehabilitation of the minor through the (h) The prospects of adequate protection of the public, and the

enforcement agencies. (g) The minor’ s prior record and prior contacts with law

(f) The sophistication and maturity of the minor.

who will be charged with a c rime. one court if the minor’ s associates in the alleged offense were adults (e) The desirability of trial and disposition of the entire of fense in

(d) The prospective merit of the complaint.

property. (c) Whether the alleged offense was committed against persons or

alleged offense. (b) The aggressive, violent, premeditated, or willful nature of the

whether the protection of the community requires transfer. (a) The seriousness of the alleged offense to the community and p. 4 4

Div. of State Police, 17 p. 4 4 N.H. at 180. discretion or acted arbitrarily, unreasonably, or capriciously. Petition of N.H. jurisdiction, authority or observance of the law, or unsustainably exercised its examining whether the superior court acted illegally with respect to 11. Our review of a decision on a petition for writ of certiorari entails Petition of N.H. Div. of State Police, 174 N.H. 176, 180 (2021); see Sup. Ct. R. is not granted as a matter of right, but, rath er, at the court’s discretion. transfer pursuant to RSA 169 - B:24. Certiorari is an extraordinary remedy that by rejecting the family division’s findings and declining the State’s petition to In support of its petition, the State argues that the superior court erred

and accepted the case. that the State’s petition was untimely. We denied the respondent’s objection review the s uperior court’s denial of transfer. The respondent objected, arguing Supreme Court Rule 11, the State petitioned this court for a writ of certiorari to challenging the family division’s jurisdictional order. Thereafter, pursuant to accepted jurisdiction, and the respondent filed an interlocutory appeal division to reconsider the certification issue. Ultimately, the family d ivision On remand, the respondent disputed the jurisdiction of the family

presumption applied — were “erroneous as a matter of law.” some of the eight crite ria set forth in RSA 169 - B:2 p. 4 4, I — with or without the Therefore, the court ruled that the family division’s findings with respect to cause “into consideration when assessing the severity of the crimes.” family division’s order “would have erroneously taken” its finding of probable presumption in favor of transfer. Furthermore, the court opined that the for the AFSA petition, the family division committed plain error in applying the date[s].” Therefore, the court ruled that because there was no probable cause support that the [respondent] committed the acts al leged on or between those were both there on one or more of those dates... the evidence does not on the dates alleged in the petition. The court also found that, “even if they respondent] and [the alleged victim] were together at the grandmother’s house” pattern AFSA petition because “nothing in the evidence suggests [the The court ruled that “there was no probable cause” to support the State’s

rehearing. denied the State’s petition to transfer and remanded to the family division for record established before the family division. Ultimately, the superior court the superior court did not hear further evidence and instead relied upon the court did not hold a hearing on the merits until August 2020. At the hearing, transfer. Due to restrictions caused by the COVID - 19 pandemic, the superior In December 2019, the State petitioned the superior court to accept the p. 5 5

circumstances of the case, there is a reasonable likelihood that such the nature of the order in question or because of the particular (d) Any other order of the court prior to trial if, either because of

or (c) A pretrial dismissal of an indictment, information or complaint;

evidence; (b) An order prior to trial which prevents the state from obtaining

evidence or evidence of a confession or admission; evidence including, but not limited to, physical or identification (a) An order of the court prior to trial which suppresses any

superior court to the supreme court from: questions of law from the district or municipal courts or from the II. An appeal may be taken by the state in criminal cases on

606:10, II provides, in relevant part: months after the superior court’s decision — was untimely. We disagree. RSA 7 through 9, id., the State’s Rule 11 p etition — filed approximately fifteen same timeliness requirem ents that govern appeals under Supreme Court Rules situation. In his view, because appeals under RSA 606:10, II are subject to the that RSA 606:10, II (2001) provides a substanti ve ly analogous statute or Personnel Comm’n, 117 N.H. 783, 784 (1977). Here, the respondent argues period set forth in a substanti vely analogous statute or situation. Wilso n v. for filing a petition for writ of certiorari should be determined by the appeal (superseded on other grounds by rule). We have held that a reasonable period See Petition of State of N. H. (State v. Fischer), 1 p. 5 52 N.H. 205, 208 (2005) certiorari when such petitions were filed after an unreasonable period of time. we have previously exercised our discretion to bar petitions for writ s of filing deadline. See Sup. Ct. R. 11. Nonetheless, as the respondent points out, State’s Rule 11 petition for original jurisdiction. Rule 11 does not specify a As an initial matter, the respondent challenges the timeliness of the

to that court’s decision. Id. work from the same record as the superior court and, thus, owe n o deference court’s review of the family division ’s order is similarly limited in scope. Id. We as a matter of law. In re Erik M., 14 p. 6 6 N.H. p. 5 508, 510 (2001). The superior B:24 and whether its decision is supported by t he evidence and not erroneous order to determine whether it fairly considered the factors set forth in RSA 169 division ’s sound discretion. Id. Accordingly, we review the family division ’s a juvenile to superior cour t for adult prosecution falls within the family 136 N.H. 678, 683 (1993). Pursuant to RSA 169 - B:24, the decision to transfer our scope of review, are identical and of a limited nature. In re Eduardo L., The standard for acceptance of certification by the superior court, and 6

are presented to the appellate court.” Mortgage Specialists v. Davey, 153 N.H. should have an opportunity to rule on issues and to correct errors before they The rationale behind our preservation requirement “is that trial forums

right to seek review of the court’s ruling in this instance. We disagree. position that, because the State did not move for reconsideration, it forfeited its time in its Rule 11 petition. The respondent, therefore, appears to take the the respondent, the State chal lenged the superior court’s decision for the first preserved its challenge to the superior court’s denial of transfer. According to In the alternative, the respondent argues that the State has not

Rule 11 petition in this instance was timely. division had jurisdiction on remand. Accordingly, we conclude that the State’s erred by denying certification would moot the issue of whether the family December 2021. We further note that a determination that the superior court certification issue. While that appeal was pending, the State filed its petition in from the family division’s order concluding it had jurisdiction to rehear the the family division’s jurisdiction and subsequently filed an interlocutory appeal further substantive proceedings on remand because the respondent objected to respondent on remand. The family division was prevented from holding any decision because it reasonably expected an opportunity to recertify the demonstrates that the State did not immediately appeal the superior court’s reasonable period of time following the superior court’s decision. The record We further conclude that the State filed its Rule 11 petition within a

at 208. defendant’s sentence. Cf. Petition of State of N.H. (State v. Fischer), 152 N.H. Fischer), where the State appealed from the court’s decision suspending the Therefore, this case is unlike Petition of State of N ew H ampshire (State v. to the family division for further proceedings on the certification issue. not dispose of the case. To the contrary, the s uperior court remanded the case p. 6 606:10, II. The superior court’s decision to deny certification in this case did an order that is capable of effectively disposing of a criminal case. See RSA 606:10, II demonstrates that the provision applies when the State appeals from from the criminal process whenever possible”). Moreover, the language of RSA delineated in RSA ch. 169 - B” reflect “the desire to divorce juvenile proceedings 120 N.H. 260, 267 (1980) (noting that “[t]he purposes and procedures from the trial of criminal cases.” RSA 169 - B:16, I (2014); see In re Russell C., proceedings, whereas juvenile proceedings are civil in nature and “separate State’s Rule 11 petition in this case. RSA 606:10, II pertains to criminal We conclude that RSA 606:10, II is not substanti vely analogous to the

prosecution of any case. order will cause either serious impairment to or termination of the p. 7 7

arguments. State v. Blackmer, 149 N.H. 4 p. 7 7, 49 (2003). review to only those issues that the defendant has fully briefed,” we decline to address these presents no factual support or legal authority to support his argument. Because we confine “our independent grounds to affirm the superior court’s denial of transfer. However, the respondent Additionally, the respondent argues that discovery and due process violations present 1

the respondent committed a pattern of AFSA pursuant to RSA 632 - A:2, III. The We conclude that the record supports a finding of probable cause that

(2019). juvenile has committed a felony offense. State v. Castine, 1 p. 7 72 N.H. 562, 568 trustworthy information to warrant a reasonable person to believe that the cause is more than speculation or innuendo; it means that there is sufficient, applies only when probable cause supports the charged offense. Probable correctly determined that the presumption set forth in RSA 169 - B:24, IV purposes of this case, we assume, without deciding, that the superior court listed in RSA 169 - B:24, I support transfer to the superior co urt.” For the the minor’s fifteenth birthday, there shall be a presumption that the factors aggravated felonious sexual assault... and the minor commits the act after RSA 169 - B:24, IV states: “Wh en the felony offense charged is...

apply. erred by concluding that the presumption set forth in RSA 169 - B:24, IV did not petition was supported by probable cause and, therefore, the superior court AFSA petition c harged a pattern of AFSA in violation of RSA 632 - A:2, III, the a pattern of AFSA in violation of RSA 632 - A:2, III. We conclude that, even if the allegations set forth in the AFSA petition demonstrate that the petition charged as the charged offense. The respondent argues, on the other hand, that the RSA 632 - A:2, III (2016), when, in fact, the AFSA listed RSA 632 - A:2, I(l) (2016) superior court improperly analyzed the AFSA petition as charging a violation of IV did not apply. To support that argument, the State contends that the consequently, by concluding that the presumption set forth in RSA 169 - B:24, by finding that the AFSA petition was unsupported by probable cause and, Turning to the merits, the State first argues that the superior court erred

State preserved its arguments for our review. 1 reconsideration was unnecessary in this instance, and we conclude that th e and not erroneous as a matter of law. Accordingly, a motion for B:24 and whether the family division’s order was supported by the evidence the family division properly consider ed all of the factors set forth in RSA 169 substantive arguments that the State now makes here — specifically, whether order denying certification and transfer, the superior court addressed the Medical A dvanced Components, Inc. v. Pappas, 1 p. 7 71 N.H. 13, 27 (201 p. 8 8). In its decision must be presented to it in a motion for reconsideration.” Vention any issues which could not have been presented to the trial court prior to its 764, 786 (2006) (quotation omitted). “To satisfy this preservation requirement, 8

division’s finding with respect to probable ca use, the superior court’s order State v. Smagula, 117 N.H. 663, 669 (1977). Here, in rejecting the family than one limited to the question of transfer... amounts to double jeopardy.” (19 p. 8 81). Indeed, “[t]o subj ect the juvenile to an adjudicatory proceeding, other court and may not be adjudicatory.” In re Vernon E., 121 N.H. 836, 844 to [RSA 169 - B:24] must be limited to the question of transfer to the superior dates alleged in the AFSA petition, we note that “a hearing conducted pursuant certainty at the grandparents’ house with the alleged victim on the specific record established in the family division, the respondent cannot be placed with Although we share the superior court’s reservations that, based upon the

petition. cause that the alleged assaults occurred during the time frame alleged in the the respondent would have had an opportunity to do so, constitute probable her grandparents’ house, when coupled with the parents’ recollections of when the alleged victim’s allegations that the respondent s exually assaulted her at provided to the police. Even if those posts did not reference the respondent, verified their recollections of the dates through social media posts, which they AFSA pattern petition. The police ser geant further testified that the parents with the respondent in the past two years. Those dates formed the basis of the statements about when the alleged victim had been at the grandparents’ house identified the specific dates of the alleged assaults through the parents’ At the family division hearing, the police sergeant testified that he

during the sexual assaults by touching. provided statements consistent with the respondent having penetrated her one occasion while they were both at her grandparents’ home. She also the alleged victim stated that the respondent rubbed her genitals on more than — by penetration between June 201 p. 8 8 and May 2019. In her CAC interviews, sexually assaulting the alleged victim — who was approximately six years old reasonable person to believe that the respondent engaged in a pattern of Here, the record contains sufficient, trustworthy information to warrant a

and within a period of 5 years.” RSA 632 - A:1, I - c (2016). RSA 632 - A:3, or b oth, upon the same victim over a period of 2 months or more sexual assault” means “committing more than one act under RSA 632 - A:2 or actor’s legal spouse, who is less than 16 years of age.” The term “pattern of person engages in a pattern of sexual assault against another person, not the part: “A person is guilty of aggravated felonious sexual assault w hen such the victim is less than 13 years of age.” In turn, RSA 632 - A:2, III provides, in if such person engages in sexual penetration with another person... [w]hen provides: “A person is guilty of the felony of aggrav ated felonious sexual assault penetration.” Relevant to the facts alleged in the petition, RSA 632 - A:2, I(l) more and within a period of five years, by knowingly engaging in sexual felonious sexual assault of the alleged victim “over a period of two months or State’s petition alleged that the respondent engaged in a pattern of aggravated p. 9 9

transfer as well. cause finding, we likewise conclude that the prospective merit criterion favored Because we conclude that the record supports the family division’s probable cause exists to believe that a defendant has committed a particular crime.”). (1 p. 9 986) (“An indictment represents the conclusion of a grand jury that probable whether probable cause exists. See Moody v. Cunningham, 127 N.H. 550, 554 review of the “prospective merit” criterion is essentially a determination as to return an indictment.” In re Farrell, 142 N.H. 424, 428 (1997). Therefore, exists when there is evidence upon which a grand jury may be expected to I(d), we have held that, “[i]n a juvenile certification hearing, prospective merit W ith respect to the “prospective merit” of the petition, RSA 169 - B:24,

RSA 16 p. 9 9 - B:24, I(h). rehabilitation services for the respondent through the juvenile system. See finding that there was “insufficient time” to implement meaningful turning eighteen at the time of the hearing also supports the family division’s I(f). Moreover, the fact that the respondent was less than three weeks from findings that the respo ndent’s maturity favored transfer. See RSA 169 - B:24, of sixteen until past his seventeenth birthday, supports the family division’s history, which includes allegations that he committed these acts from the age RSA 169 - B:24, I(a) - (c). Further, the respondent’s academic and behavioral serious and violent, and was allegedly committed against a minor person. See the first three factors, it is axiomatic that the charged AFSA pattern offense is respondent ha s no prior record. See RSA 169 - B:24, I(e) - (g). With respect to because no adult associates were involved in the alleged crimes and the family division’s findings that only factors (e) and (g) did not favor transfer 169 - B:24, I, favored transfer. We begin by noting that the record supports the evidence, the family division’s finding that, on balance, the factors listed in RSA We conclude that the record suppor ts, by a preponderance of the

forth in the statute.” Id. preponderance of the evidence, with due consideration given to each factor set within the reasonable discretion of the [circuit] court, based upon a criteria set forth in RSA 16 p. 9 9 - B:24.” Id. “Rather, the decision to transfer is State is not required to prove beyond a reasonable doubt each of the eight factors set forth in RSA 169 - B:24, I, did not weigh in favor of transfer. “The We now turn to the respondent’s argum ent that, on balance, the eight

Eduardo L., 136 N.H. at 684. IV “is supported by the evidence and is not erroneous as a matter of law.” In re family division’s decision to apply the presumption set forth in RSA 16 p. 9 9 - B:24, the respondent committed a pattern of AFSA. We t herefore conclude that the record lacked sufficient evidence supporting a finding of probable cause that conclude that the superior court erred as a matter of law by finding that the not required, nor permitted, at this stage in the proceeding. Accordingly, we imposed a level of scrutiny to the allegations — akin to a trial on the merits — p. 10 10

concurred. J., retired superior court justice, specially assigned under RSA 490:3, HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred; ABRAMSON,

that the superior court grant certification of the respondent. We, therefore, reverse and remand this case to the superior court and direct erred when it de nied the State’s petition to certify the respondent as an adult. presumption pursuant to RSA 169 - B:24, IV, we hold that the superior court Considering these findings favoring transfer, and the application of the