2014-0281, State of New Hampshire v. Louise E. Pinault

651:63, I (2007). We affirm in part and reverse in part. the trial court ’s order that she pay restitution for property damage, see RSA misdemeanor count of conduct after an accident, see RSA 264:25, I (2014), and following a bench trial before the Circuit Court (Bamberger, J.), o n one LYNN, J. The defendant, Louise E. Pinault, appeals her conviction,

Al - Marayati on the brief), for the defendant. Bookman & Al - Marayati, of Melrose, Massachusetts (Ghazi D.

general, on the brief), for the State. Joseph A. Foster, attorney general (Stacey R. Kaelin, assistant attorney

No. 2014 - 281 9 Circuit C ourt - Nashua District Division th

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

of statutory interpretation, we are the final arbiters of the legislature’s intent as our review is de novo. State v. Gibson, 160 N.H. 445, 448 ( p. 2 2010). In matters Because resolution of this issue requires the interpretation of a statute,

a, I ( p. 2 2007). compensated by the offender who is responsible for the loss. See RSA 651:61 of the resti tution statute, which carries the presumption that the victim will be The S tate also argues that ordering restitution in this case fulfills the purpose conduct after an accident, the damage logically resulted from her criminal act. accident and property damage are necessary elements of the conviction for the conduct covered by the conviction. The State contends that, becau se the because the property damage resulted from the factual allegations that support direct result of her criminal act. The S tate argues that restitution i s prop er was caused before she left the scene of the accident and therefore cannot be a any economic loss. The defendant contends that the damage to the mailboxes restitution because the only offense for which she was convicted did not cause T he d efendant first argues t hat the trial court improperly ordered

denied the motion and this appeal followed. was insufficient and that the restitution order was improper. The trial court reconsideration, arg uing that the complaint alleging conduct after an accident restitution for the dam age to the mailboxes. T he defendant moved for an accident charge. As part of her sentence, she was ordered to pay $5 p. 2 25 in she was acquitted on the DUI charge, but was convicted on the conduct after Following a bench trial, during which the defendant represented herself,

damaged mailboxes and tire tracks leading off, and then back onto, the road. officer later returned to the scene of the first accident and observed two of the vehicle matched the plate number reported in the first 911 call. The as the driver at the second accident and testified that the license plate number the defendant. A police officer dispatched to both calls identified the defendant pe rson to call 911 while the witness assisted the driver, who m he identified as drive off the road and into a wooded area. This witness instructed another vehicle’s license plate number. A second witness later saw a “silver ish” sedan mailboxes. That witness called 911 to report the first accident and gave the driving. The witness noticed some debris, which he later i dentified as broken road and saw a gold sedan “careen back onto the roadway” and continue witness saw a “big puff of dirt as if an impact had happened” on the side of the after an accident” statute. See RSA p. 2 265 - A:2, I(a)(2014); RSA 264:25, I. One charge d with d riving under the influence (DUI) and with violating the “conduct defendant was involved in two motor vehicle accident s in Hollis. She was The record supports the following facts. On August 27, 2013, the

criminal act and the economic loss or damage. statute clearly and unambiguously requires a causal connection between the Law Dictionary 1509 (10 th ed. 2014). The plain language of the restitution defined, in relevant part, as “[a] consequence, effect, or conclusion.” Black’s offender’s criminal conduct.” RSA 651:62, VI (emphasi s added). “Result” is restitution can be paid only to a victim who suffers loss “as a result of an result of a criminal offense.” RSA 651:62, III (emphasis added). Likewise, such the statute itself limits restitution to losses or expenses “incurred as a direct Although there is a presumption in favor of restitution, the language of

convicted. damage at issue here was not a result of the crime for which the defendant was restitution. Rather, we find it s uffic ient for present purposes to hold that the one hand, and criminal conduct, on the other, to support an order of the outer limits of the connection that must exist between harm or loss, on the O nce a gain we find it unnecessary to attempt to develop a test for determining factual allegations that support the conduct covered by the conviction.” Id. defendant may be held liable for economic losses directly resulting from the crime.” Armstrong, 151 N.H. at 687. Instead, we “simply note[d] . . . that a specific “test to ascertain at what point an event is no longer a dire ct result of a declined to do so. In that case, we decided that we did not need to develop a meaning of “direct result” in State v. Armstrong, 151 N.H. 686 (2005), but we the statute or elsewhere in the Criminal Code. We were asked to clarify the The phrase “direct result,” as used in RSA 651:62, III, is not defined in

68, 71 (2010); see also RSA 651:61 - a, I. responsible for a victim’ s loss will pay restitution.” State v. Schwartz, 160 N.H. conduct.” RSA 651:62, VI (2007). “Courts are to presume that a def endant person... who suffers economic loss as a result of an offender’s criminal destroyed, or lost property.” RSA 651:62, III (2007). And “victim” is “a as a direct result of a criminal offense,” including the “value of damaged, “Economic loss” is defined as “out - of - pocket losses or other expenses incurred offender to compensate a victim for economic loss.” RSA 651:62, V (2007). “Restitution” is defined, in relevant part, as “money or service provided by the convicted of a criminal or delinquent act.” RSA 651:62, IV (2007). determined by the court.” RSA 651:6 p. 3 3, I. An “[o] ffender” is “any person “Any offender may be sentenced to make restitution in an amount

statutory scheme and not in isolation. Id. fit to include. Id. Finally, we interpret a statute in the context of the overall not consider what the legislature might have said or add language it did not see Id. Further, we interpret legislative intent from the statute as written and will possible, construe that language according to its plain and ordinary meaning. to promote justice. Id. We first look to the language of the statute itself, and, if provisions of the Criminal Co de according to the fair import of their terms and expressed in the words of the statute considered as a whole. Id. We construe p. 4 4

285 P.3d 523, 529 (Mont. 2012); In re C.T., p. 4 43 S.W.3d 600, 603 (Tex. App. 2001). Ct. 1983). Contra People v. Carbajal, 899 P.2d 67, 73 - 74 (Cal. 1995); City of Billings v. Edward, 893 N.E.2d 526, 528 - 29 (Ohio Ct. App. 2008); Com. v. Cooper, 466 A.2d 195, 196 - 97 (Pa. Super. 1290 (Me. 1986); State v. Steinolfson, 483 N.W.2d 182, 184 (N.D. 1992); Columbus v. Cardwell, 1988); State v. Starkey, 437 N.W.2d 573, 575 (Iowa 1989); State v. Beaudoin, 503 A.2d 1289, jurisdictions that have considered this issue. See State v. Williams, 520 So. 2d 276, 277 - 78 (Fla. We note that our holding is in accord with what appears to be the majority view of other 

the trial court’s restitution order.  result of the defendant ’s leaving the scene of the accident. We therefore reverse economic loss resulting from the damaged mailboxes simply cannot be the conduct did not cause the economic loss suffered. In other words, t he occurred afterward. As the damage was already done, the defendan t’s criminal which the defendant was convicted — conduct after an accident — necessarily Here, the damage to the mailboxes occurred during the accident. The crime for occurred earlier in time cannot be the result of something that occurred later. the accident, and not a result of the actual accident. Logically, something that the econom ic loss must be a result of the criminal act of leaving the scene of to support an order of restitution based on a conviction under RSA 26 p. 4 4:25, I, after an accident has occurred; the crime is not the accident itself. Therefore, The criminal conduct proscribed under RSA 264:25, I, takes place only

causal connection between the defendant’s conduct a nd the damage. the defendant and the damage. In contrast, the restitution statute requires a a n accident causing damage; it does not require a causal connection between the statute. RSA 26 p. 4 4:25, I, merely require s that a defendant be “involved in” leaves the scene of the accident without providing the information required by damage to property, may be found guilty of violating RSA 264:25, I, if he or she in an acc ident caused by the fault of another driver, and which results in accident or the damage. Thus, for example, a driver who is innocently involved for conviction that the driver have been at fault in any way in causing the damage are prerequisites to a conviction under this statute, it is not necessary RSA 264:25, I (2014). Although it is tr ue that an accident and property

[and] the registration number of the vehicle.... damaged, the driver’s name and address, driver’s license number, the scene of the accident and give... to the owner of any property in... damages to property, shall immediately stop such vehicle at he or she has just been involved in any accident which resulted The driver of a vehicle who knows or should have known that

relevant part: conduct after an accident. The conduct after an accident statute states, in without the accident and the property damage, there would be no crime of The State argues that such a causal connection exists here because, p. 5 5

trial.” State v. Cheney, 16 p. 5 5 N.H. 677, 679 (2013). The defendant h ere has which [s he] is charged with suff icient specificity to enable [her] to prepare for A valid charging document “must inform a defendant of the offense with

proceedings.” (q uotation and citations omitted)). demonstrate that the error affected the outcome of t he district court simply by showing that an [error occurred] . . . . [T]he defendants must 307 (1st Cir. 2000) (stating that the third plain error prong “is not satisfied outcome of the proceeding. See United States v. Mojica - Baez, 229 F.3d 292, abstract violated a substantial right, but whether the error actually affected the the issue. Under the third prong, the questio n is not whether the error in the her right to be free from double jeopardy. This argument, however, confuses Id. The defendant argues that the error affected her right to due process and [fact - finder] would have ret urned the same verdict in the absence of the error.” prejudice under the third prong when we cannot confidently state that the proceeding.” Mueller, 166 N.H. at 70 (quotation omitted). “We will find that the error was prejudicial, i.e., that it affected the outcome of the a defendant to prevail under the third prong, “the defendant must demons trate was plain, we examine whether the error satisfies the third prong. In order for Assuming without deciding that (1) an error occurred and (2) the error

11 (2014) (quotation omitted). error analysis in applying our plain error rule.” State v. Rawnsley, 167 N.H. 8, otherwise result.” Id. (quotation omitted). “We have looked to the federal plain limited to those circumstances in which a miscarriage of justice would (quotation omitted). The plain error rule “is used sparingl y, however, and is the fairness, integrity or public reputation of judicial proceedings.” Id. error only if the error meets a fourth criterion: the error must seriously affect conditions are met, we may then exercise our discretion to correct a forfeited v. Mueller, 166 N.H. 6 p. 5 5, 68 (2014) (quotation omitted). “If all three of these the error must be plain; and (3) the error must affect substantial rights.” State Ortiz, 162 N.H. at 590. For us to find plain error: “(1) there must be error; (2) pre clude all appellate review; it instead confines our review to plain error. See . . . .”). Failure to raise this claim in a timely fashion, however, does not determination without the trial of the general issue shall be raised before trial 585, 590 (2011); see also Dist. Div. R. 1.8 (E) (“Any motion which is capable of sufficiency of the charging document before trial. See State v. Ortiz, 162 N.H. was involved in the accident. A defendant must bring challenges to the to include an element of the offense because it did not allege that the defendant leave the scene of the accident.” The defendant argues that the complaint fails where property of another was d amaged and failed to stop.. . but did in fact and did know or should have known an accident occurred at 81 Broad St stated, in relevant part, that the defendant “did operate a 1995 Honda Accord T he defendant also challenges the sufficiency of the complaint, which

DALIANIS, C.J.