2006-056, STATE OF NH v. MICHAEL SHANNON

The defendant, Michael Shannon, appeals a restitution

and orally), for the defendant. Nadeau Law Offices, P.L.L.C., of Portsmouth (J.P. Nadeau on the brief

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2006-056 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as proceeding.

p. 2 compensated the victim, it would need the record from the Massachusetts that, to resolve the issue of whether or not the Massachusetts order fully overcompensate her. The trial court stated numerous times during the hearing

to the victim and any restitution ordered in New Hampshire would

and the letter written by the victim, the Massachusetts order covered all losses responded that, based upon his discussion with the Massachusetts prosecutor New Hampshire was $8,445, rather than $11,475.98. The defendant defendant bears the burden of showing that the New Hampshire order is

victim. The representative also clarified that the value of the jewelry lost in the Massachusetts order was intended to cover. The trial court ruled: “The

ordered in Massachusetts did not constitute all of the restitution owed to the Hampshire prosecutors. Thus, the victim’s representative stated, the $39,400 defendant failed to provide a record from Massachusetts demonstrating what estimates of the value of the jewelry lost in New Hampshire for the New that the Massachusetts restitution order fully compensated the victim, the and Massachusetts losses. The trial court stated that, while it might be true

estimates of only the value of jewelry lost in Massachusetts, and leave recovered” showed that the victim distinguished between her New Hampshire

victim assumed that she should submit to the Massachusetts prosecutors Blacken on the amount of jewelry pawned in New Hampshire that was not in the same letter that “[w]e have given receipts to Salem Detective Don to cover all losses. The court also found, however, that the victim’s statement 2

occurred in September 2005.

full amount of the victim’s loss. The victim’s representative stated that the attorney representing the victim disagreed, asserting that $39,400 was not the jewelry taken from the victim that she did not later recover. A Massachusetts suggested, but did not prove, that the Massachusetts court intended its order

to a further hearing regarding the amount of restitution. That hearing Hampshire pawnshop. The sentencing order, however, entitled the defendant defendant to pay $11,475.98 in restitution to the victim and $400 to a New

the $39,400 restitution ordered in Massachusetts covered the entire value of the defendant “to pay back full restitution in the amount of $39,400.00” that the victim’s statement in her letter that the Massachusetts court ordered After the hearing, the trial court issued a written order. The court found

Superior Court. As part of his sentence, the trial court initially ordered the

based upon their discussions with the prosecuting attorney in Massachusetts,

the defendant pled guilty to receiving stolen property in Rockingham County of jewelry pawned in New Hampshire that was not recovered.” In August 2004, wrote: “We have given receipts to Salem Detective Don Blacken on the amount

At the hearing, the State and defense counsel told the trial court that,

to pay back full restitution in the amount of $39,400.00.” The victim also “On March 8th, in Newburyport District Court, Michael [Shannon] was ordered burden of the victim as a result of the criminal act.

p. 3 society and to the victim in a constructive manner, and to ease the provide the offender the opportunity to pay the offender’s debt to reinforce the offender’s sense of responsibility for the offense, to

responsible for the loss. Restitution by the offender can serve to

that the victim will be compensated by the offender who is offender. It is the purpose of this act to establish a presumption in part, by the offender to the victim can operate to rehabilitate the

part: there is no compensation. It also finds that repayment, in whole or

RSA 651:63 (Supp. 2006), which authorizes restitution, states, in pertinent often suffer losses through no fault of their own and for which

weight of the evidence. whole. the trial court’s finding that he should pay restitution was contrary to the I. The legislature finds and declares that the victims of crimes restitution order was precluded by the Massachusetts restitution order; and (2) provisions in the Criminal Code as follows: RSA 651:61-a (Supp. 2006) states the purpose of the restitution

justice). provisions are construed according to fair import of their terms and to promote statutory scheme. Id; see also RSA 625:3 (1996) (providing that Criminal Code in enacting them, and in light of the policy sought to be advanced by the entire words used. Id. Our goal is to apply statutes in light of the legislature’s intent language of the statute and ascribe the plain and ordinary meanings to the State v. Gubitosi, 152 N.H. 673, 682 (2005). We first examine the legislative intent as expressed in the words of the statute considered as a (2006). In matters of statutory interpretation, we are the final arbiter of law by ruling that he bore the burden of proving that the New Hampshire review de novo. Debonis v. Warden, N.H. State Prison, 153 N.H. 603, 605 chapter 651. The interpretation of a statute is a question of law, which we however, is New Hampshire were $8,475 and ordered that amount of restitution paid. de novo. Id. Resolution of this appeal requires us to interpret RSA N.H. 305, 307 (2004). Our review of the trial court’s legal conclusions, they lack support in the record or are clearly erroneous. State v. Wiggin, 151 In reviewing the trial court’s ruling, we accept its factual findings unless

On appeal, the defendant argues: (1) the trial court erred as a matter of

done so.” The trial court found that the State proved that the victim’s losses in subsumed or precluded by the Massachusetts restitution order. He has not loss. p. 4 burden of proving that the defendant is, in fact, responsible for the victim’s a victim’s loss will pay restitution to the victim. The State, of course, bears the

fully compensated her. to prove that he need not pay restitution to the victim because he had already

(Quotation omitted.) In both

that the legislature intends courts to presume that a defendant responsible for

conclude that the trial court did not err in placing the burden on the defendant

show that he has not fully compensated the victim for the injury that he further compensate her. The defendant argues that it is the State’s burden to concluded that the defendant bears that burden. whether the defendant was, in fact, responsible for the injuries suffered by the Massachusetts order, then the New Hampshire court erred in ordering him to already been fully compensated for his or her injury, and these courts have Burr and Eno, we considered questions regarding connected to the offense and bears a significant relationship to the offense.” prove by a preponderance of the evidence that the loss or damage is causally (1999), that “[i]f the factual basis for restitution is disputed . . . the State must offender who is responsible for the loss.” In light of this language, we conclude articulated in Burr, 147 N.H. at 105, and State v. Eno, 143 N.H. 465, 470 We further note that our holding today does not contradict the standard

defendant is the party wishing to rebut this presumption. Accordingly, we 1998). presumption would, logically, bear the burden of proof. In this case, the 393 (1st Cir. 1998); United States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir. 201 F.3d 320, 326-27 (4th Cir. 2000); defendant will compensate the victim. A party wishing to rebut this United States v. Parsons, 141 F.3d 386,

compensated the victim for the injury that he caused her by complying with the law the issue of which party bears the burden to prove whether a victim has We note that multiple federal circuit courts have addressed under federal

act to establish a presumption that the victim will be compensated by the injury.

pursuant to the language of RSA 651:61-a, I, the court must presume that the See State v. Burr, 147 N.H. 102, 105 (2001). If the State does so, then,

for the same injury, the defendant argues that if he has already fully

We disagree. RSA 651:61-a, I, provides that “[i]t is the purpose of this intended to compensate the victim more than once for the same availability of other compensation; however, restitution is not regardless of the offender’s ability to pay and regardless of the

Because restitution is not intended to compensate the victim more than once

amount determined by the court. . . . Restitution may be ordered I. Any offender may be sentenced to make restitution in an victim. p. 5 defendant did not prove that the Massachusetts order fully compensated the

court cited this failure in its order as one of its reasons for finding that the

resolve the issue. The defendant failed to provide such a record, and the trial trial court needed to review the record from the Massachusetts proceeding to compensated the victim. The trial court repeatedly told the defendant that the

may have been mistaken in her belief that the Massachusetts order fully

would completely compensate the victim. argues, compelled a finding that the Massachusetts restitution order, if paid, from the defendant’s sale of jewelry in New Hampshire; thus, the prosecutor victim never reported to the Massachusetts authorities her losses resulting restitution hearing. At that hearing, the victim’s representative stated that the

the full amount of restitution was $39,400. This evidence, the defendant

Massachusetts prosecutor believed was not the issue in dispute at the

The defendant bore the burden to rebut that presumption. 5

by the defendant. The defendant also presented the victim’s letter stating that restitution ordered in Massachusetts included all losses to the victim caused told the trial court that the district attorney from Newburyport believed that the compensated the victim for all losses caused by the defendant, what the

RSA 651:61-a, I, that the defendant had to compensate the victim for her loss.

Court, [the defendant] was ordered to pay back full restitution in the amount of As for the victim’s letter, although it states that, “in Newburyport District

weight of the evidence. At the restitution hearing, the State and the defendant the Massachusetts prosecutor believed that the Massachusetts order

responsible for the victim’s loss, the trial court correctly presumed, pursuant to compensated the victim. As there is no dispute that the defendant is the victim’s loss of $8,445. Instead, he disputes whether he has already fully

should pay restitution to the victim because this finding was contrary to the Although the defendant emphasizes that both parties told the trial court that psychological treatment. lack support in the record or are clearly erroneous. Wiggin, 151 N.H. at 307. As stated above, we accept the trial court’s factual findings unless they

The defendant does not dispute the causal connection between his offense and

The defendant next contends that the trial court erred in finding that he defendant had with a minor caused the injury for which the minor later sought

victim’s loss. In contrast, the case before us presents no issue of causation. injuries such that the defendant should be held responsible for restoring the was whether the defendant’s actions were causally connected to the victim’s

should bear the burden to prove that the sexual relationship that the animals in the shelter. Burr, 147 N.H. at 105. In Eno, we ruled that the State expenses incurred by an animal shelter resulted from the defendant’s abuse of victims. In Burr, we ruled that the State should bear the burden to prove that p. 6 6

the order as modified.

unsupported by the record or clearly erroneous.

agree. Accordingly, we modify the trial court's order accordingly, and affirm concedes in its brief that the amount of restitution should be $8,445, and we ordered the defendant to pay restitution in the amount of $8,475. The State

evidence, we cannot conclude that the trial court’s factual findings are either

the value of the jewelry lost in New Hampshire was $8,445, the trial court

BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

and thus supported the victim’s representative’s testimony. Based upon this Modifed in part; affirmed victim distinguished between her Massachusetts and New Hampshire losses recovered.” The trial court found that the latter statement showed that the

Finally, although the victim's representative clarified at the hearing that

Don Blacken on the amount of jewelry pawned in New Hampshire that was not $39,400.00,” it also stated that the victim gave “receipts to Salem Detective