Police Non-Charging Is Not Dispositive; Pattern Evidence Permissible to Prove a “Credible Present Threat” Under RSA 173-B — Commentary on S.L. v. S.B. (N.H. Sept. 12, 2025)

Introduction

In S.L. v. S.B., No. 2025-0199 (N.H. Sept. 12, 2025), the Supreme Court of New Hampshire affirmed a final domestic violence protective order issued under RSA 173-B:5, I. Deciding the appeal by order pursuant to Supreme Court Rule 20(3), the Court rejected the respondent’s multifaceted attack on the sufficiency of the evidence and the trial court’s application of the statutory definition of “abuse” in RSA 173-B:1, I.

The case arose from an intimate cohabitating relationship of approximately two and a half years involving the parties and their children. A February 9, 2025 incident—during which, after an argument about the plaintiff’s stated intention to leave, the defendant threw her belongings down the stairs and then grabbed her from behind with his arm around her neck and pulled her back multiple times—precipitated the petition. The plaintiff also described earlier incidents: the defendant holding a gun to his chin during an argument, breaking through a deadbolted garage door, punching and fracturing a shower wall, making approximately 38 calls within 40 minutes during a period of separation, and driving past her birthday party. The trial court credited the plaintiff’s testimony, found that the February 9 conduct constituted “assault or reckless conduct” under RSA 173-B:1, I(a) (referencing RSA 631:1 through 631:3), and concluded that the totality of circumstances established a “credible present threat” to the plaintiff’s safety.

On appeal, the defendant argued: (1) phone calls could not constitute “abuse” because they lacked threats and did not meet criminal harassment under RSA 644:4; (2) prior incidents were too remote or not directed at the plaintiff; (3) reconciliation after some incidents and the plaintiff’s initial decision to remain overnight defeated any “present” threat; (4) the plaintiff articulated only generalized fear; (5) the lack of arrest or criminal charges showed no abuse occurred; and (6) the February 9 contact was accidental and intended to keep the plaintiff from falling. The Supreme Court affirmed.

Summary of the Opinion

The Court held that the trial court permissibly found an act of “abuse” based on the February 9, 2025 physical altercation—specifically, “assault or reckless conduct as defined in RSA 631:1 through RSA 631:3”—and properly used other incidents from the relationship to assess whether that conduct posed a “credible present threat” to the plaintiff’s safety. The Court emphasized deference to the trial court’s credibility determinations, viewed the evidence in the light most favorable to the prevailing party (the plaintiff), and found sufficient record support.

Key clarifications:

The protective order was grounded in the February 9 assault/reckless conduct; prior incidents were not separate acts of “abuse” but were properly considered to determine whether the recent conduct created a credible present threat, consistent with RSA 173-B:1, I’s allowance to consider acts regardless of temporal proximity when they reflect an ongoing pattern.
Reconciliation or a victim’s initial decision to remain after an incident does not negate a present credible threat (reaffirming S.C. v. G.C., 175 N.H. 158 (2022)).
A decision by law enforcement not to arrest or charge following a report of domestic abuse is not dispositive of whether “abuse” occurred for purposes of a civil protective order under RSA 173-B:5.
The defendant’s “accident/preventing a fall” narrative could be rejected by the factfinder; the Supreme Court defers to the trial court’s credibility findings and will affirm if supported by the record.

Result: Affirmed. Chief Justice MacDonald and Justices Donovan and Countway concurred.

Analysis

Precedents and Authorities Cited

RSA 173-B:1, I (2022): Defines “abuse” in domestic violence cases. As applied here, it has two components:
- An act or attempted act of specified criminal conduct (here, “assault or reckless conduct as defined in RSA 631:1 through RSA 631:3”).
- A “credible present threat” to the plaintiff’s safety caused by that conduct.
It also allows the court to “consider evidence of such acts, regardless of their proximity in time, which, in combination with recent conduct, reflects an ongoing pattern of behavior” reasonably causing fear for safety or well-being.
RSA 173-B:5, I (2022): Authorizes issuance of a final protective order upon proof of “abuse” by a preponderance of the evidence.
RSA 173-B:3, VI (2022): Appellate framework—trial court findings of fact are final; Supreme Court reviews questions of law de novo.
RSA 631:1 through 631:3: The criminal conduct referenced in RSA 173-B:1, I(a). These provisions include first-degree assault (RSA 631:1), second-degree assault (RSA 631:2), and reckless conduct (RSA 631:3). The fact pattern aligns most directly with “reckless conduct,” i.e., recklessly engaging in conduct that places or may place another in danger of serious bodily injury, particularly given the location near stairs, though the trial court framed its finding as “assault or reckless conduct.”
RSA 644:4 (2016 & Supp. 2024): Criminal harassment. The defendant invoked this statute to argue that repeated phone calls without threats could not constitute “abuse” under RSA 173-B:1, I(g). The Supreme Court found the harassment point immaterial because the protective order was based on the February 9 assault/reckless conduct, with the calls considered only as pattern evidence bearing on credible threat.
S.C. v. G.C., 175 N.H. 158 (2022): Central precedent on the burden of proof (preponderance), the two-part “abuse” construct (enumerated act plus credible present threat), the standard of review (deference to credibility, sufficiency reviewed as matter of law), and the permissibility of considering prior acts and victim behavior (such as reconciliation) when assessing credible present threat. The Court in S.L. v. S.B. invokes S.C. repeatedly for these propositions.
Sup. Ct. R. 20(3): Procedure allowing the Court to resolve a case by order without full opinion; signals that the issues are adequately addressed by existing law and the record.

Legal Reasoning

1) What counted as “abuse” in this case

The trial court expressly found that the February 9 incident constituted “assault or reckless conduct” under RSA 173-B:1, I(a), which cross-references RSA 631:1–:3. The plaintiff testified that, after the defendant threw her belongings down the stairs, he grabbed her from behind with his arm around her neck and pulled her back multiple times during a struggle at the top of the basement stairs. That conduct reasonably fits reckless conduct (creating a risk of serious harm near stairs) and could also satisfy assault depending on the severity and intent found by the factfinder.

The Supreme Court observed that this assaultive conduct—not the earlier episodes—was the predicate act of abuse. This is important because the statute requires at least one enumerated criminal act as the foundation for a protective order; other incidents can contextualize the “credible present threat” inquiry but need not themselves be independently adjudicated as criminal or as abuse.

2) How the Court evaluated the “credible present threat” requirement

The second component—whether the February 9 assault posed a “credible present threat” to the plaintiff’s safety—was informed by a broader pattern of volatility:

Breaking through a deadbolted door and punching a shower wall to the point of fracture during past anger.
Displaying a firearm by holding it to his own chin during an argument (not a threat directed at the plaintiff but evidence of escalating volatility and disregard for safety boundaries).
Persistent, intrusive conduct during a period of separation (38 calls in 40 minutes) and driving by the plaintiff’s social event.

RSA 173-B:1, I authorizes exactly this mode of reasoning: courts may consider prior acts “regardless of their proximity in time” when “in combination with recent conduct” they reflect an “ongoing pattern of behavior” that reasonably causes fear. The Court affirmed that the trial court properly treated the prior incidents as pattern evidence amplifying the dangerousness of the recent assault, thereby supporting the “present” and “credible” character of the threat.

3) Remoteness, reconciliation, and victim behavior do not defeat credibility of threat

The defendant argued that the plaintiff’s reconciliation after some incidents (and her initial intent to remain overnight after February 9) undermined any “present” threat. The Court, in line with S.C. v. G.C., rejected this contention. A victim’s choices during a volatile relationship—including staying, leaving and returning, or delayed reporting—do not negate the existence of a credible present threat established by the facts. Domestic violence jurisprudence recognizes that victims’ survival strategies and economic or familial constraints often complicate immediate exit or reporting behavior.

4) Police non-charging is not dispositive in civil protective order proceedings

The Court expressly rejected the argument that the absence of arrest or criminal charges after the February 9 report determines whether “abuse” occurred for RSA 173-B purposes. This is a significant clarification. Civil protective orders apply a different burden of proof (preponderance of evidence), serve a preventive, remedial function, and are adjudicated on the evidentiary record before the court. Prosecutorial or police charging decisions—driven by different standards, resource constraints, and priorities—do not bind the civil court’s abuse determination.

5) The “accident” narrative and deference to credibility findings

The defendant’s explanation that he was trying to keep the plaintiff from falling was rejected. On appeal, the Supreme Court views the record in the light most favorable to the prevailing party and defers to the trial court’s credibility findings. Here, the plaintiff’s testimony that the defendant grabbed her from behind with his arm around her neck and pulled her back several times in a struggle was credited; the Court found no legal error or evidentiary deficiency in that determination.

6) The “harassment” issue was beside the point

The defendant argued that repeated phone calls were not “harassment” under RSA 644:4 and thus could not be abuse under RSA 173-B:1, I(g). The Supreme Court effectively answered: it does not matter, because the protective order rested on the February 9 assault/reckless conduct under RSA 173-B:1, I(a). Even if the calls did not meet harassment’s criminal elements, they still legitimately informed the “credible present threat” analysis as part of the pattern of conduct.

Impact and Implications

Doctrinal impact

Pattern evidence reaffirmed: Trial courts may consider prior incidents—regardless of remoteness and even if not directed at the plaintiff—to evaluate whether a recent enumerated act constitutes a credible present threat. This encompasses property destruction, self-directed dangerous displays (e.g., holding a gun to one’s own chin), intensive calling, and drive-bys, among others.
Non-charging clarified: A police decision not to arrest or prosecute has no dispositive effect on a civil “abuse” finding under RSA 173-B. This solidifies the independence of civil protective order adjudications from criminal charging outcomes.
Victim behavior contextualized: Reconciliation, delayed departure, or delayed reporting do not negate a current credible threat. Courts will continue to view such behavior through a realistic lens of domestic dynamics.
Single recent episode can suffice: A single recent assaultive or reckless episode, if sufficiently dangerous and contextually supported by pattern evidence, may satisfy RSA 173-B’s definition of abuse and warrant a final order.

Practical takeaways for litigants and courts

Petitioners: Document both the precipitating incident and prior episodes that show escalation or volatility. Even if earlier conduct was not reported, charged, or overtly threatening, it can be probative of a present credible threat when combined with a recent assault.
Respondents: Expect that courts will look beyond the immediate incident and that explaining away police non-action will not carry the day. Address the pattern evidence with credible, consistent, and corroborated rebuttal where possible.
Trial courts: This decision validates an evidence-synthesis approach: anchor the “abuse” finding in a statutory act, then assess “credible present threat” with a holistic view of relationship history, regardless of temporal proximity, so long as it reflects an ongoing pattern.
Appellate posture: Sufficiency challenges face steep odds because of deference to factfinding and credibility determinations; appellants should focus on clear legal errors, not reweighing testimony.

Complex Concepts Simplified

“Preponderance of the evidence”: The plaintiff must show it is more likely than not that the defendant committed an enumerated act and that this conduct presents a credible present threat. This is a lower burden than “beyond a reasonable doubt” used in criminal prosecutions.
“Abuse” under RSA 173-B:1, I: Requires (a) commission or attempted commission of one of several listed crimes (here, “assault or reckless conduct” cross-referencing RSA 631:1–:3), and (b) that this conduct constitutes a “credible present threat” to the plaintiff’s safety.
“Credible present threat”: An objective, forward-looking assessment of risk to the plaintiff’s safety at the time of the hearing. It can be supported by earlier acts (even if remote or not charged) when combined with recent conduct showing a pattern.
“Reckless conduct” (RSA 631:3): Engaging in conduct that places or may place another in danger of serious bodily injury while being aware of and consciously disregarding a substantial and unjustifiable risk. Grabbing someone at the top of stairs and pulling them backward can qualify.
“De novo review” vs. “findings of fact are final”: On appeal, legal questions are reviewed afresh (de novo), but factual determinations—who to believe, what happened—are binding unless legally unsupported. The Supreme Court does not re-try credibility.
Sup. Ct. R. 20(3) “order”: The Court may decide a case by a shorter order instead of a full, published opinion when existing law clearly governs. Such orders still articulate governing principles and are citable unless otherwise indicated.
Civil protective order vs. criminal case: Protective orders aim to prevent harm and protect safety; they can be issued without criminal charges and under a lower burden of proof. Police or prosecutorial decisions are independent of the court’s civil determination.

Conclusion

S.L. v. S.B. reinforces and refines key aspects of New Hampshire’s domestic violence protective order jurisprudence under RSA 173-B. First, it confirms that a trial court may base the “abuse” finding on a single recent assaultive or reckless episode, and then properly consider earlier incidents—regardless of their timing or whether they resulted in charges—to determine whether that episode poses a credible present threat. Second, it explicitly clarifies that the absence of arrest or criminal charging does not preclude a civil abuse finding. Third, it reiterates the limited role of appellate courts in reweighing credibility and the irrelevance of reconciliation or delayed departure to the “present threat” analysis.

The decision thus offers a clear roadmap: anchor the protective order in a qualifying act, evaluate present risk through the lens of the relationship’s documented pattern, and separate civil protective determinations from criminal enforcement choices. For courts and practitioners, the case underscores that the statutory framework is both flexible enough to capture real-world dynamics of domestic violence and disciplined in its two-part structure requiring an enumerated act and a credible present threat.