State v. Moore

• Decision Date: 10 June 2020
• Docket Number: No. 2018-0602,2018-0602
• Parties: The STATE of New Hampshire v. Bruce MOORE
• Court: New Hampshire Supreme Court

173 N.H. 386

239 A.3d 897

The STATE of New Hampshire

v.Bruce MOORE

No. 2018-0602

Supreme Court of New Hampshire.

Argued: October 23, 2019

Opinion Issued: June 10, 2020

Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief, and Sean R. Locke, assistant attorney general, orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

BASSETT, J.

The defendant, Bruce Moore, pled guilty to burglary. See RSA 635:1, I (2016). Following his plea, the Superior Court (Wageling, J.) ordered the defendant to pay restitution to the owners of the home that he had burglarized. A portion of the ordered restitution was for the cost of a home security system that the homeowners had installed in their home after the burglary. The specific question that we now decide is whether the cost of the security system installed by the homeowners is an "economic loss," as defined by RSA 651:62, III(a), and is therefore a compensable expense under New Hampshire's restitution statute. See RSA 651:61-a, :62, :63 (2016) (amended 2018). Because we conclude that the cost of the system is not an "economic loss," we reverse.

The pertinent facts are as follows. In December 2017, the defendant pled guilty to the February 2016 burglary of a residence owned by a married couple in Stratham. During his plea and sentencing hearing, the defendant and the State disputed the amount of restitution that the defendant would be required to pay to the homeowners. The defendant agreed to pay $1,250, which is the uninsured loss that the homeowners sustained for the stolen property. The defendant, however, challenged the trial court's authority to order him to pay for the cost of the homeowners' new security system: $2,123.64. Without conceding that the cost of the security system was compensable as restitution, the defendant pled guilty on condition that he would pay a "maximum ... of $3,373.64," which is the total of the uninsured loss and the cost of the system.

RSA 651:63, I, provides, in pertinent part, that "[a]ny offender may be sentenced to make restitution in an amount determined by the court." RSA 651:63, I. "Restitution" is defined, in pertinent part, as "money or service provided by the offender to compensate a victim for economic loss." RSA 651:62, V. In turn, "economic loss" means

out-of-pocket losses or other expenses incurred as a direct result of a criminal offense, including:

(a) Reasonable charges incurred for reasonably needed products, services and accommodations, including but not limited to charges for medical and dental care, rehabilitation, and other remedial treatment and care including mental health services for the victim or, in the case of the death of the victim, for the victim's spouse and immediate family;

(b) Loss of income by the victim or the victim's dependents;

(c) The value of damaged, destroyed, or lost property;

(d) Expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the injured or deceased victim would have performed, if the crime had not occurred, for the benefit of the victim or the victim's dependents;

(e) Reasonable expenses related to funeral and burial or crematory services for the decedent victim.

RSA 651:62, III.

Following the plea and sentencing hearing, the State filed a memorandum of law regarding restitution, arguing that the cost of the security system was compensable as an "economic loss" under RSA 651:62, III. The trial court ordered an evidentiary hearing to "determine if the installation ... was a ‘direct result’ of Defendant's burglary; and, if so, whether the legislature intended RSA 651:62, III(a) to include restitution payments for security systems." During the hearing, one of the homeowners, the husband, testified that, following the burglary, he and his wife felt unsafe in their home, and that the security system helped them to feel safer. The husband testified that the burglary was the only reason that he and his wife had considered purchasing a security system. The defendant, however, argued that the cost of the system was not an "economic loss" as defined by RSA 651:62, III(a).

Following the hearing, the trial court found that the expense was an "economic loss" under RSA 651:62, III(a), reasoning that the homeowners had purchased the security system as a direct result of the burglary, and that the system was "comparable to a victim's receipt of mental health counseling." The court ordered the defendant to pay for the cost of the system. This appeal followed.

On appeal, the defendant argues that the trial court erred in ruling that the cost of the system was compensable as restitution because: (1) the cost of the security system does not qualify as an "economic loss" under RSA 651:62, III(a) and reimbursement of that cost is a windfall for the homeowners; (2) the homeowners did not purchase the system as a direct result of his offense; and (3) the homeowners' 'purchase was motivated by a "generalized feeling of insecurity," rather than a credible threat of future harm by the defendant. The State counters that the cost of the system is a compensable "economic loss" because the burglary was a "but-for" cause of the homeowners' purchase of the system, and, given the burglary, the system was, under RSA 651:62, III(a), a "reasonably needed product[ ], service[ ] [or] accommodation[ ]." RSA 651:62, III(a). The State also argues that allowing the reimbursement advances the statute's purpose of "increas[ing], to the maximum extent feasible, the number of instances in which victims receive restitution." RSA 651:61-a, II. We are not persuaded by the State's arguments.

Determining the appropriate restitution amount is within the discretion of the trial court. See State v. Schwartz, 160 N.H. 68, 71, 993 A.2d 220 (2010). If the factual basis for restitution is disputed, however, the State must prove by a preponderance of the evidence that the victim's loss or damage is causally connected to the offense and bears a significant relationship to the offense. Id. In reviewing the trial court's ruling, we accept its factual findings unless they lack support in the record or are clearly erroneous. Id. Our review of the trial court's legal conclusions is de novo. Id.

Resolution of the question of whether the cost of the security system is a compensable "economic loss" requires that we engage in statutory interpretation. "We review the trial court's statutory interpretation de novo." Franciosa v. Hidden Pond Farm, 171 N.H. 350, 355, 195 A.3d 816 (2018). The restitution statute is part of the Criminal Code; therefore, we construe it "according to the fair import of [its] terms and to promote justice." RSA 625:3 (2016). "In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole." Petition of Carrier, 165 N.H. 719, 721, 82 A.3d 917 (2013). "We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning." Id. "We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Id. "The legislature is not presumed to waste words or enact redundant provisions and whenever possible, every word of a statute should be given effect." Garand v. Town of Exeter, 159 N.H. 136, 141, 977 A.2d 540 (2009) (quotation omitted). "We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result." Carrier, 165 N.H. at 721, 82 A.3d 917. "Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole." Id. "This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme." Id.

Restitution is meant to compensate a victim only for "losses" directly arising from a crime. See RSA 651:61-a, I. The restitution statute's statement of purpose includes a legislative finding that "victims of crimes often suffer losses through no fault of their own and for which there is no compensation," and a presumption that victims "will be compensated by the offender who is responsible for the loss." Id. (emphases added). For an expense to be compensable as restitution, the State must prove that the expense represents "loss or damage" to the victim that was caused by the defendant. Schwartz, 160 N.H. at 71-72, 993 A.2d 220 (quotation omitted); see also State v. Gibson, 160 N.H. 445, 450, 999 A.2d 240 (2010). When a defendant causes a victim to suffer a loss, the restitution statute creates an "obligation to make the victim whole." State v. Burr, 147 N.H. 102, 104, 782 A.2d 914 (2001).

Here, the cost of the security system is not a "loss" to the homeowners because they are not replacing a preexisting system. Although installation of the system may have lessened the homeowners' post-burglary anxiety, reimbursing them for the expenditure would not merely restore them to the position they were in before the crime; rather, it would leave the homeowners better off — owning a new asset of considerable value.

The State argues that the cost of the security system is compensable because it is similar to the types of expenditures that are compensable under RSA 651:62, III(a): "reasonably needed products, services and accommodations, including but not limited to charges for medical and dental care, rehabilitation, and other remedial treatment and care including mental health services for the victim." RSA 651:62, III(a). The trial court ruled that "the phrase ‘including but not limited to’ as it is used in section III(a) means exactly what it says—restitution in this matter is not limited to the types of items specifically...