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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 20 21

- 0609

PETITI ON OF THE STATE OF NEW HAMPSHI RE

Argued: June 23, 2022

Opinio n 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 remand ing the case to the family

division of the circuit court for further proceedings. We hold that the superior

court erred by de nying the State’s certification petition

, and reverse and

remand.2 I. Facts

The following facts are supported by the record or are otherwise

undisputed. In August 2019, t he 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 i ndecent 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

allege d 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 s ergeant 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 p enetrated 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 a ssaults 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

determi ned 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:3

(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 of fense in

one court if the minor’ s associates in the alleged offense were adults

who will be charged with a c rime.

(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 pe rson. 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 evid ence that transfer was appropriate.4

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 al leged 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 crite ria 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 d ivision

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 s uperior 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, rath er, 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 180.5

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 cour t 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 t he 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 n o 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 writ s of

certiorari when such petitions were filed after an unreasonable period of time.

See Petition of State of N

. H

. (State v. Fischer)

, 1 52 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 substanti vely analogous statute or situation. Wilso n v.

Personnel Comm’n

, 117 N.H. 783, 784 (1977). Here, the respondent argues

that RSA 606:10, II (2001) provides a substanti ve ly analogous statute or

situation. In his view, because appeals under RSA 606:10, II are subject to the

same timeliness requirem ents that govern appeals under Supreme Court Rules

7 through 9, id

., the State’s Rule 11 p etition

— 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 such6

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 substanti vely 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 th at 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 N ew H ampshire (State v. Fischer)

, where the State appealed from the court’s decision suspe nding 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 chal lenged 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.7

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 A dvanced 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 consider ed 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 th e

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 c harged 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 : “Wh en 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 co urt.” 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).8

State’s petition alleged that the respondent engaged in a pattern of aggravated

felonious sexual assault of the alleged victim “over a p eriod 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 assaul t

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 ov er 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 assau lting 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 alleg ed 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 adj udicatory 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 order9

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 t herefore 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 argum ent 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.” In re Eduardo L.

, 136 N.H. at 6 84.

“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 suppor ts, 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 ha s 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 matur ity 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 me aningful

rehabilitation services for the respondent through the juvenile system. See

RSA 169

- B:24, I(h).

W ith 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 esse ntially 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 crim e.”).

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.10

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 de nied 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 cour t 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

.