2009-327, State of New Hampshire v. Graham Gibson

The defendant, Graham Gibson, appeals an order issued by

orally), for the defendant. Gregory W. Swope, PLLC, of Concord (Gregory W. Swope on the brief and

general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney 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. 2009-327 editorial errors in order that corrections may be made before the opinion goes Belknap 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 for [K.G.]”

p. 2 concluded: “That may change and, moreover, additional funds may be required despite the fact that M.G. had still not sought counseling. The court Finally, the court declined to reduce the remaining funds being held in trust

under either version. Accordingly, we need not decide which applies.

amount she would have been paid had she been paid at her regular rate.

the statute. We agree with the State that the result in this case is the same

difference between what Kutch was actually paid for K.G.’s sessions and the cost when K.G. could not afford it. The latter amount appears to represent the Kutch provided some counseling sessions to K.G. at a reduced rate or at no

either version, but that the trial court properly applied the current version of responds that the issue is irrelevant because the result is the same under in 1986-1987, when the crimes were committed, must apply. The State

that funds remain in escrow for the benefit of M.G. 2 ordered that records supporting the invoice from Kutch be submitted for

The former amount represents what K.G. actually paid Kutch for counseling.

the direct result of the conduct for which the defendant was convicted; and (4) $17,125 for K.G., and $18,750 for M.G., in trust to be held by his attorney, and the uncertainty of payment. The trial court ordered the defendant to place payment from the funds held in trust of $4,425 to K.G. and $11,200 to Kutch. The State represented that M.G. had not yet engaged in counseling because of defendant upon K.G. for which he was not convicted. The court ordered defendant’s conviction and other similar alleged abuse perpetrated by the

As a preliminary matter, we address which version of the restitution

mental health services; (3) payment of restitution for services not proven to be (1) payment of restitution directly to Kutch; (2) payment of restitution for The defendant appealed, arguing that the trial court erred by ordering: K.G., along with her estimate of the cost for future counseling for both victims.

required for K.G. between counseling necessitated by the abuse resulting in the

presented a bill from Sari Kutch, LCSW, for counseling services provided to

ruled in October 2008 that it was not possible to apportion the counseling make restitution in an amount to be determined at a later date. Following the submission of additional records, the Trial Court (, J.)

camera review.

In February 2006, the trial court held a restitution hearing. The State

February 10, 2005, as part of his sentences, the defendant was ordered to contact with M.G. and the other involving sexual contact with K.G. On of felonious sexual assault occurring in 1986-1987, one involving sexual Hungerford, 142 N.H. 110 (1997). The defendant was convicted of two counts unreliable and therefore inadmissible as evidence at trial. See State v. part, as:

p. 3 conduct.” RSA 651:62, VI (2007). And “economic loss” is defined, in relevant

faith effort of any person attempting to prevent or preventing the criminal

to prevent or preventing the criminal conduct.” suffers economic loss as a result of an offender’s criminal conduct or the good RSA 651:62, V (2007). “Victim” is now defined as “a person or claimant who victim, which indemnifies a victim for economic loss under this subdivision.” but not limited to charges for medical and dental care, rehabilitation, reasonably needed products, services and accommodations, including

offender’s criminal conduct or of the good faith effort of any person attempting

loss, or to compensate any collateral source subrogated to the rights of the

criminal offense, including: (a) Reasonable charges incurred for

employment income.”

suffers personal injury, death or economic loss as a direct result of an subdivision.” Laws 1981, 329:2. “‘Victim’ means a person or claimant who the victim who suffers personal injury, death or economic loss under this “money or service provided by the offender to compensate a victim for economic

out-of-pocket losses or other expenses incurred as a direct result of a

damaged, destroyed or lost property, reasonable medical costs and loss of

“moneys, compensation, work or service to be reimbursed by the offender to RSA 651:62 was amended in 1996 to provide that “restitution” means

defined as “pecuniary detriment suffered by the victim, including the value of overall statutory scheme and not in isolation. Id. And “economic loss” is see fit to include. Finally, we interpret a statute in the context of the consider what the legislature might have said or add language it did not

The version of RSA 651:62 in effect in 1986-1987 defines “restitution” as: considered as a whole. We omitted). State v. Kousounadis, 159 N.H. 413, 423 (2009) (quotations and citations

interpret legislative intent from the statute as written and will not that language according to its plain and ordinary meaning. Further, we first look to the language of the statute itself, and, if possible, construe according to the fair import of their terms and to promote justice. We

the legislature’s intent as expressed in the words of the statute novo. In matters of statutory interpretation, we are the final arbiters of The interpretation of a statute is a question of law, which we review de

statute. The first three issues on appeal require us to construe the restitution destroyed or lost property, reasonable medical costs and loss of employment

p. 4 time. We disagree.

“pecuniary detriment suffered by the victim, including the value of damaged,

legislature expanded the definition to provide for such restitution for the first “economic loss” in 1996 to specifically include “mental health services,” the health services. The defendant contends that by amending the definition of 4

pay such expenses. review. The prior version of the restitution statute defined “economic loss” as

statute does not render Kutch a “victim.” whether a trial court could award restitution was ordered to pay as restitution to K.G.). Therefore, we need not address $4,425 that K.G. had already paid to Kutch (and which amount the defendant

1987 did not authorize the court to order payment of restitution for mental order.

either with or without a condition requiring the victim to use the restitution to We will assume, without deciding, that this issue was preserved for our

victim for economic loss.” RSA 651:62, V (2007). Thus, the amendment to the

that K.G. was obligated to pay Kutch for the services she provided beyond the

Next, the defendant argues that the restitution statute in effect in 1986payment of restitution directly to Kutch, and we reverse that portion of its

incurred by the victim, but not yet paid, as a direct result of a criminal offense,

a “collateral source subrogated to the rights of the victim, which indemnifies a conduct and is not a “victim”). The State concedes in its brief that Kutch is not consequences of a crime did not suffer loss as a “direct result” of criminal We note that on the record before us there is no finding by the trial court

restitution for lost wages). Therefore, the trial court erred by ordering the time she cared for her injured son, mother was not “victim” entitled to (2003) (where defendant stabbed minor whose mother then lost wages during collateral source subrogated to the rights of a victim. We agree. Cf. State v. McCarthy, 150 N.H. 389 payment of restitution directly to Kutch, as she is neither a victim nor a

N.H. 223 (1990) (holding that insurer that compensated its insured for “direct result” of the defendant’s criminal conduct. Cf. State v. Springer, 133 We agree with the defendant that Kutch did not suffer any economic loss as a who suffers economic loss as a direct result of the offender’s criminal conduct. The prior version of the restitution statute defined “victim” as a person

The defendant first argues that the trial court erred in ordering the

RSA 651:62, III (2007).

for the victim . . . . and other remedial treatment and care including mental health services connected to the offense and bears a significant relationship to the offense.

p. 5 burden of proof, which requires the State to prove that the loss is causally the benefit of expert testimony.

restitution covering all counseling costs. This ruling fails to account for the alleged abuse perpetrated by the defendant upon K.G. The court then ordered order to determine the appropriate apportionment, the court may require for which the defendant was convicted and what was necessitated by the other

conduct; that is, the conduct for which he was convicted. amount of the loss the victim sustained as a result of the offense. In the counseling required for K.G. between what was necessitated by the abuse the costs so that the ordered restitution reasonably represents the contribute to the loss suffered by the victim, the court should apportion

restitution to losses incurred “as a direct result” of the offender’s criminal In this case, the trial court indicated that it was not possible to apportion bears a significant relationship to the offense. Where several factors State v. Eno, 143 N.H. 465, 470-71 (1999) (quotations and citations omitted).

apportioning restitution without benefit of expert testimony). as an attempt to resolve any ambiguity rather than as a change in legal rights. for psychiatric care, appellate court unable to review propriety of amendment that first specified “mental health services” is more properly viewed (Pa. Super. Ct. 1984) (where other factors may have contributed to need

the prior version and the current version of the restitution statute tie losses that were not incurred as a direct result of his criminal conduct. Both evidence that the loss or damage is causally connected to the offense and disputed, however, the State must prove by a preponderance of the discretion of the trial court. If the factual basis for restitution is Determining the appropriate restitution amount is within the

to whether mental health services were included, we believe that the 1996 ordinary meaning). 159 N.H. at 423 (statutory language is construed according to its plain and

Next, the defendant argues that the trial court awarded restitution for

See Snyder v. N.H. Savings Bank, 134 N.H. 32, 36 (1991).

the definition. To the extent that the prior statute was ambiguous with respect in this case, are sufficiently similar to “medical costs” to fall within the scope of conclude that mental health services, such as the counseling services at issue losses particularized therein, see Conservation Law Found., 150 N.H. at 6, we applicability of the general term “pecuniary detriment” to the types of economic Dictionary 831 (9th ed. 2009). While use of the term “including” may limit the Found. v. N.H. Wetlands Council, 150 N.H. 1, 5-6 (2003); Black’s Law examples that follow it are intended to be non-exclusive. See Conservation Law income.” Laws 1981, 329:2. The use of the term “including” indicates that the needs, had changed, and that the court, therefore, erred by not releasing those

p. 6 that evidence in ordering restitution.

2006 to order the placement of $18,750 in trust for her future counseling

was unreliable, the defendant cannot complain when the trial court ignored

imposition of restitution as to M.G., which prompted the trial court in March Instead, the defendant argues that the circumstances that warranted the issues, therefore, are not before us, and we express no opinion thereon. persuading the trial court that the evidence supporting the dismissed assaults causally connected to the offense for which the defendant was convicted.

defendant somehow led the trial court into error.

or that the funds held in trust for M.G. be used for restitution to K.G. Those Alternatively, the State relies upon the invited error doctrine, arguing that by dismissed counts played any role in the victims’ need for counseling. proving by a preponderance of the evidence that the victim’s loss or damage is unreliable, he is judicially estopped from arguing that the effects of the

position that the underlying alleged events

contradictory argument to prevail in another phase). Nor do we see how the

not order that restitution funds be held in trust for an indefinite period of time, argue to the trial court, and does not argue on appeal, that the trial court could motion to dismiss and his later position that the State bears the burden of him the funds being held in trust for M.G. We note that the defendant did not sexual assault on the ground that the victims’ recovered memories were Finally, the defendant argues that the trial court erred by not releasing to

the victims’ recovered memories were inadmissible as evidence with the himself of error into which he has led the trial court). N.H. 224, 227 (1999) (under “invited error” doctrine, party may not avail opinion. See State v. Goodale, 144

from prevailing in one phase of a case on an argument and then relying on Cohoon v. IDM Software, 153 N.H. 1, 4 (2005) (judicial estoppel prevents party

contradiction between the defendant’s evidentiary arguments underlying his dismiss eighty-nine counts of felonious sexual assault and aggravated felonious in fact did not occur. We see no

We are not persuaded. The State conflates the defendant’s position that

directly to K.G. and remand for further proceedings consistent with this the trial court in this case. Therefore, we vacate the order awarding funds was a substantial factor in causing the injury). No such finding was made by

The State contends that because the defendant successfully moved to

result; in order to establish liability, one must prove that defendant’s breach N.H. 110, 115 (1993) (noting that many factors may unite to produce the treatment. Cf. Indep. Mechanical Contractors v. Gordon T. Burke & Sons, 138 convicted was a substantial factor in producing the injury that required the least, the State must prove that the conduct for which the defendant was see State v. Schwartz, 160 N.H. ___, ___ (decided April 8, 2010). At the very p. 7 7

opinion.

vacate this ruling and remand for further proceedings consistent with this

might be required for future counseling costs incurred by K.G. Accordingly, we particularly likely given the trial court’s reasoning that the funds held in trust ruling regarding the apportionment of counseling costs. This seems

for future counseling for M.G. may have been influenced by its erroneous DALIANIS, DUGGAN and HICKS, JJ., concurred.

It appears that the amount that the trial court ordered to remain in trust

order. assessment of M.G.’s future treatment needs to the trial court that supports its funds. See RSA 651:66 (200 p. 7 7). The State contends that Kutch provided an