2009-488, State of New Hampshire v. Kimberly Thiel

The defendant, Kimberly Thiel, appeals her conviction in

Tony F. Soltani, of Epsom, on the brief and orally, for the defendant.

attorney general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2009-488 editorial errors in order that corrections may be made before the opinion goes Concord District Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 argument. This case is thus distinguishable from the cases the State cites,

p. 2 sufficiently developed to support a decision on the merits.

carrying items for which she had not paid, and she was stopped outside of the

court’s order specifically responds to it. The notice of appeal also presents this

presented on appeal,” as well as to ensure that the record before us is of prior convictions,

those grounds.”

however, the facts as found by the trial court are not in dispute: Thiel was support the result reached by the trial court.” Bean, 151 N.H. at 250. Here, raised those issues before the trial court.” raised her statutory interpretation argument before the trial court, as the trial lack a record to review, “we must assume that the evidence was sufficient to We recognize that, where a case turns upon a factual dispute and we

even the very issues in dispute, Mahmoud, 155 N.H. at 406. underlying its findings, Bean, 151 N.H. at 250; Bergmann, 135 N.H. at 100, or issues for appeal and apprise the respondent and the court of the issues Staples, 120 N.H. at 285, or the trial court’s reasoning trial court’s proceedings left in doubt the trial court’s decision on admissibility State v. Staples, 120 N.H. 278 (1980). In those cases, a lack of record of the considered by the court regardless of whether the opposing party objects on Mahmoud, Bean v. Red Oak Prop. Mgmt., 151 N.H. 248 (2004), Bergmann, and

to decide the issues raised on appeal and to demonstrate that the appellant Here, these requirements have been met. It is clear that the defendant

exists to resolve this issue.” Id.

The purpose of these requirements is to “provide evidence of preservation of the reasonably interpreted the legislature’s use of the word “premises.”

Mahmoud, 155 N.H. at 406 (quotation and brackets omitted).

“Failure of the moving party to comply with these requirements may be N.H. 405, 406 (2007) (quotation omitted); see also Sup. Ct. R. 16 (3)(b). statute. Mahmoud v. Irving Oil Corp., 155

merchant’s premises. the burden of the appealing party to provide this court with a record sufficient

We first “examine the threshold question whether an adequate record

Wal-Mart employees stopped Thiel in the vestibule area. which to consider her claims. The State further asserts that the trial court and citations to the record, and, therefore, there is an insufficient basis upon The State notes first that the defendant has failed to provide a transcript

contends that she did not leave the “premises” within the meaning of the

shoplifting under RSA 644:17, II(a), she must have removed the goods from the On appeal, the defendant argues, inter alia, that in order to be guilty of

“proceeded to pass the automatic doors that led to the vestibule.” One or more bill. She then departed from the sales area with her bags of groceries and under this statute.

p. 3 “premises” for the purpose of the stature [ legislature. For example, could it reasonably be argued that that the court cannot reasonably conclude was intended by the

merchandise from the premises, and the trial court erred in convicting her was stopped in the merchant’s vestibule, she did not remove goods or the premises of a merchant.” RSA 644:17, II(a). Thiel argues that, because she 3

If it did include the parking lot, then someone could not lawfully be

encompass the vestibule area would give rise to a slippery slope

interpreted the statute as follows: goods or merchandise, he knowingly . . . [r]emoves goods or merchandise from

parking lot since it is company owned land? The court thinks not. presume that the legislature did not enact superfluous or redundant words.” sic] also includes the

legislature did not see fit to include.”

meaning. To hold that the premises for the purposes of shoplifting must

The shoplifting statute does not define “premises.” The trial court person is guilty of shoplifting if, with the purpose of depriving a merchant of allegations as charging variant (a) of the statute, which provides that “[a] scheme and not in isolation.” Kousounadis, 159 N.H. at 423. the store without paying for some of the merchandise.” We consider these Id. “Finally, we interpret a statute in the context of the overall statutory

159 N.H. 456, 457 (2009). “We must give effect to all words in a statute, and

will not consider what the legislature might have said or add language that the

Id. “We interpret legislative intent from the statute as written and

and, if possible, construe that language according to its plain and ordinary 159 N.H. 413, 423 (2009). We first look to the language of the statute itself, the fair import of their terms and to promote justice.” State v. Kousounadis, (quotation omitted). “We construe provisions of the Criminal Code according to legislature as expressed in the words of a statute considered as a whole.” Id. matters of statutory interpretation, we are the final arbiter of the intent of the thereof, in that the defendant stacked similar items, scanned only one, and left questions of law de novo.” State v. Offen, 156 N.H. 435, 437 (2007). “In “We review questions of statutory interpretation and constitutional

a transcript of the proceedings below. therefore, consider the defendant’s statutory argument, despite the absence of

a total value of $45.86, with a purpose to permanently deprive the owner Thiel did “remove merchandise, the property of Wal-Mart, merchandise having II, without alleging any of the enumerated variants. The complaint alleges that The State’s complaint charged Thiel with shoplifting under RSA 644:17,

not require a record more complete than that which is before us. We, sales area but within the vestibule of the store. Our statutory analysis does area. p. 4 intended the boundary of a merchant’s premises to be delineated by its sales

shoplifting. Given this distinction, we cannot conclude that the legislature

“willful concealment”; outside the boundary, the wrongful conduct constitutes merchant’s “premises”: within the boundary, the wrongful conduct constitutes concealment and shoplifting under RSA 644:17 occurs at the boundary of the

premises of a merchant.” RSA 644:17, II(a). The distinction between willful

merchandise, he knowingly . . . [r]emoves goods or merchandise from the

shoplifting if, with the purpose of depriving a merchant of goods or defines the relevant variant of shoplifting as follows: “A person is guilty of willful concealment.” RSA 644:17, II, under which the defendant was charged,

store, the statutory elements of the charged crime have not been met. While

merchandise found concealed upon the person shall be prima facie evidence of

dispute that the merchandise was not removed from even the outer doors of the

merchandise of any store while still upon the premises of such store. Goods or concealment if, without authority, he willfully conceals the goods or RSA 644:17, II. RSA 644:17, I, provides: “A person is guilty of willful

merchandise from the merchant’s premises. Where, as here, there is no variant of the statute under which Thiel was charged requires removal of the purposes of RSA 644:17 II. for taking merchandise from a store without first paying for it.” However, the vestibule, the court rules that she had left the “premises” for the We agree with the State that “[t]he statute is intended to punish people then proceeded to pass the automatic doors that led to the

consistent with the plain and ordinary meaning of the word. defendant left the merchant’s premises when she left its sales area is not

644:17 defines two crimes: willful concealment, RSA 644:17, I, and shoplifting,

place of business.

from the cash register area with her groceries all bagged up and

used in the statute, we conclude that the trial court’s determination that the

Neither does the statutory scheme support the State’s position. RSA

(unabridged ed. 2002), and is not delimited by particular activities within the enterprise or institution,” Webster’s Third New International Dictionary 1789 159 N.H. at 423. “Premises” is generally defined as “the place of business of an Since the Defendant had exited the sales area when she departed See Kousounadis, area is the “premises” for the purposes of a shoplifting complaint. likely that the statutory intent of the legislature was that the sales While we need not here define the precise parameters of “premises” as

We disagree with the trial court’s interpretation of the statute.

and leaves the parking lot and enters the public way. It is more prosecuted for shoplifting until he or she gets in [his or her] car p. 5 5

proof.

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

these circumstances, we cannot conclude that the State met its burden of shoplifting by wrongfully removing goods from the merchant’s premises. Under N.H. 333, 33 p. 5 5 (1995), or attempted shoplifting, she was in fact charged with see State v. Harper, 126 N.H. 815, 818 (1985), or theft, see State v. Peck, 140 the State may have been able to prove the defendant guilty of attempted theft,