2012-0758, State of New Hampshire v. Lisa Collyns

theft by unauthorized taking conviction and remand. to obtain the “property of another,” RSA 637:3, I, w e reverse the attempted Because there was insufficient evidence to prove that the defendant attempted argument she withdrew her a ppeal of the theft by deception conviction. motion to dismiss or to set aside the verdicts as to both convictions, at oral 637: 3 (2007). Although the defendant appeal ed the trial court’s denial of her (2007), and attempted theft by unauthorized taking, see RSA 629:1 (2007); RSA defendant, Lisa Collyns, was convicted of theft by deception, see RSA 637:4 CONBOY, J. Following a jury trial in Superior Court (Houran, J.), the

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant

No. 2 012 - 758 Carroll

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

without taking the equipment. the restaurant. The landlord called the police, and the buyer left the property While the buyer was preparing to remove the equipment, the landlord came to returned, the defendant unlocked the restaurant and left shortly thereafter. collect the equipment from the restaurant later that day. When the buyer with a receipt signed by the defendant. The buyer was told that he could buyer paid for the equipment, and the defendant’s friend provided the buyer friend informed the buyer that some of the equipment was stored offsite. The the restaurant. They discussed which items were for sale, and the defendant’s buyer responded to the advertisement and met the defendant and her friend at posted an advertisement listing restaurant equipment for sale. A potential demand for rent and an eviction notice. A t the defendant’s request, a friend building in which the restaurant was located served the defendant with a agreement through January p. 2 2011. In December 2010, the landlord of the The defendant made the monthly payments required under the second

ownership will revert back to [the victim]. agree that if I default at any time on my monthly payments the business [the victim] until the balance of the $19500.00 is paid in full. I also I [the defendant] agree that ownership of the equipment will belong to

owner of the building. being [l] ights, phone, food, heat, (propane) taxes, along with rent to the I [the defendant] also agree to pay all bills pertaining to the business

good running condition at my own expense. I [the defendant] agree to maintain the equipment located there in

$500.00 until the balance of the $19500.00 is satisfied. I [the defendant] agree to pay each and every month the sum of

stated, in relevant part: a second purchase and sale agreement (second agreement). Th is agreement due for the restaurant, the parties renegotiated their contract and entered into On September 11, p. 2 2010, after the defendant failed to pay th e balance

victim. September 1, p. 2 2010, ownership of the restaurant would “remain with” the agreement, if the defendant failed to pay the f ull purchase price by party, the transaction did not i nclude the sale of real property. Under this defendant. Because the restaurant was located in a building owned by a third victim entered into a purchase and sale agreement to sell her restaurant to the T he jury could have found the following fa cts. On July p. 3 30, 2010, the 3

attempted to obtain or exercise unauthorized control over (2) the property of him thereof.” Thus, the State wa s required to prove that the defendant (1) unauthorized control over the prope rty of another with a purpose to deprive theft by unauthorized taking “if [s he attempts to] obtain [] or exercise[] Pursuant to RSA 6 p. 3 37:3, I, a person is guilty of the crime of attempted

N.H. 77 p. 3 3, 782 (2010) (quotation omitted). could have found guilt beyond a reasonable d oubt.” State v. Fandozzi, 159 and all reasonable inferences from it in the light most favorable to the State, defendant must prove that no rational trier of fact, viewing all of the evidence (2011). “To prevail upon [her] challenge to the sufficiency of the evidence, the therefore, our standard of review is de novo. State v. Kay, 162 N.H. 237, 2 43 A challenge to the sufficiency of the evidence raises a claim of legal error;

another’ under RSA 6 p. 3 37:2, IV.” See RSA 637:2, IV (2007). We agree. “because the restaurant equipment was not, as a matter of law, the ‘property of her motion to dismiss the charge of atte mpted theft by unauthorized taking On appeal, the defendant argues that the trial court erred when it denied

require the verdicts to be set aside as against the weight of the evidence. the evidence did not “preponderate[] heavily against the verdicts” so as to exercise control over the property of another. The trial court also found that which a reasonable juror could find that the defendant attempted to obtain or the parties [’] contracts” and concluding that there was sufficient evidence upon evidence. The trial court denied the motion, focusing on “the express terms o f evidence was insufficient and that the verdicts were against the weight of the submitted a motion to dismiss o r set aside the verdicts asserting that the T he jury returned guilty verdict s on both counts. The defendant

defendant’s motion. victim had only a security interest in the equipment. The tr ial court denied the because the second agreement constituted a conditional sales contract and the charge, that she could not have attempted to ste al the property of another charges, arguing, with respect to the attempted theft by unauthorized taking At the close of the State’s case, the defendant moved to dismiss the

property belonging to the landlord. See RSA 6 p. 3 37: p. 4 4. equipment from the... Restaurant,” which the trial court ruled could include was also charged with one count of theft by deception relating to “restaurant restaurant equipment for sale.” See RSA 629:1; RSA 637: 3. The defendant was the property of [the victim], in that, s he purposely advertised the attempted to exercise “unauthorized control over restaurant equipment which unauthorized taking, which alleged, in relevant part, that the defendant The defendant was charged with one count of attempted theft by 4

agreement” is defined as “[a]n agreement that creates or provides for an of a debt).” Black ’ s Law Dictionary 1 p. 4 478 (9th ed. 2009). A “security operation of law to secure per formance of an obligation (esp[ecially] repayment interest” is defined as “[a] property interest created by agreement or by sales contract or other security agreement.” (E mphase s added.) A “security interest therein, even if legal title is in the creditor pursuant to a conditional “[p] roperty in possession of the actor” when the other “has only a security RSA 637:2, IV exempts from the definition of “[p] roperty of another”

(quotation omitted). in the conte xt of the overall statutory scheme and not in isolation.” Id. or redundant words.” Id. (quotation omitted). “Finally, we interpret a statute words in a statute, and presume that the legislature did not enact superfluous not see fit to include.” Id. (quotation omitted). “We must give effect to all what the legislature might have said or add language that the legislature did interpret legislative intent from the statute as written and will not consider meaning.” Zubhuza, 166 N.H. at ___, 90 A.3d at 618 (quotation omitted). “We if possible, construe that language according t o its plain and ordinary see RSA 625:3 (2007). “We first look to the language of the statute itself, and, the fair import of their terms and to promote justice.” Id. (quotation omitted); (quotation omitted). “We construe provisions of the Criminal Code according to as a whole.” State v. Zubhuza, 166 N.H. ___, ___, 90 A.3d 61 p. 4 4, 618 (2014) of the intent of the legislature as expressed in the words of a statute considered RSA 637:2, IV. “In matters of statutory interpretation, we are the final arbiter R esolution of this issue requires us to construe the relevant language of

owner.” more than a security interest in the equipment” in that “she was its rightful another” wit hin the meanin g of the theft statute because the victim “retained State disagrees, asserting that the equipment at issue constitute s “property of equipment was not the “property of another” as defined by the statute. The the victim had only a security interest in the equipment and, therefore, the attempted theft by unauthorized taking because, under the second agreement, T he defendant argues that the State failed to prove the requirements of

contract or other security agreement.” RSA 637:2, IV. therein, even if legal title is in the creditor pursuant to a conditional sales actor shall not be deemed property of another who has only a security interest has an interest in the property.” Nonetheless, “[p] roperty in possession of the the actor is not privileged to infringe, regardl ess of the fact that the actor also as “property in which any person other than the actor has an interest which RSA 637:2, IV defines t he term “[p] roperty of another,” in relevant part,

629:1; RSA 637:3; see also State v. Gagne, 16 p. 5 5 N.H. 363, 368 (201 3). another (3) with the purpose to deprive the other of the p roperty. See RSA 5

transfer convictions b ecause victims — unpaid subcontractors and suppliers — Schmidt, 9 p. 5 57 A.2d 80, 87 (Me. 2008) (vacating theft by unauthorized taking or remaining balance due for the restaurant — a security interest. See State v. t he victim with an interest in the equipment only until the defendant paid the “ownership” language, however, the import of the entire agreement was to vest to [the victim] until the balance... is paid in full.” Notwithstanding the agreement, the defendant agreed that “ownership of the equipment will belong properly decided by the jury.” We disagree. U nder the terms of the second the terms of the contract, were in dispute,” and, therefore, “the matter was The State argues that “the issue of the ownership of the property, and

713, 71 p. 5 5 (2001) (quotati on omitted). the unmanifested states of mind of the parties.” Lake v. Sullivan, 145 N.H. omitted). We “judge the intent of the parties by objective criteria rather than from the plain meaning of the language used in the contract.” Id. (quotation (quotation omitted). “Absent ambiguity, the parties ’ intent will be determined the agreement was negotiated, and reading the document as a whole.” Id. reasonable meaning, considering the circumstances and the context in which interpreting a written agreement, we give the language used by the parties its 166 N.H. ___, ___, 89 A.3d 165, 170 (2014) (quotation omitted). “When law, which we review de novo.” In the Matter of Liquidation of Home Ins. Co., language of the agreement. “The interpretation of a contract is a question of a security agreement giving t he victim a security interest, w e look to the In order to determine whether the defendant and the victim entered into

§ 224.10 cmt. 1, at 343. for the fraudulent disposition of security interests. See Model Penal Code punishable under RSA 638:9 (2007), which establishes misdemeanor sanctions N.H. 20, 23 (1982). Rather, such efforts by debtors or conditional vendees are misdemeanor crime of defrauding secured creditors); see State v. Marion, 122 (Official Draft and Revised Comments 1980) (explaining background for that prejudice the secured creditor.” Model Penal Code § 224.10 cmt. 1, at 343 dispose of pe rsonal or movable property subject to a security interest in ways from the theft provisions ... efforts by debtors or conditional vendees to explain s that the effect of the language used in RSA 637:2, IV “is to exclude Code. See State v. Donohue, 1 p. 5 50 N.H. 180, 183 (2003). T he commentary statutes b ecause our Criminal Code is largely derived from the Model Penal Code, which we may look to when interpreting analogous New Hampshire This interpretation is supported by the commentary to the Model Penal

o ther person to secure the performance of an obligation. individual pursuant to a n agreement that creates a property interest in the the definition of “property of another” property that is in the possession of a n an obligation.” Id. Therefore, by its plain meaning, the statute exempts from interest in specified real or personal property to guarantee t he performance of p. 6 6

DALIANIS, C.J.