State of New Hampshire v. Bruce Moore ( 2020 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2018-0602
THE STATE OF NEW HAMPSHIRE
v.
BRUCE MOORE
Argued: October 23, 2019
Opinion Issued: June 10, 2020
Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the brief, and Sean R. Locke, assistant attorney
general, orally), for the State.
Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.
BASSETT, J. The defendant, Bruce Moore, pled guilty to burglary. See
RSA 635:1, I (2016). Following his plea, the Superior Court (Wageling, J.)
ordered the defendant to pay restitution to the owners of the home that he had
burglarized. A portion of the ordered restitution was for the cost of a home
security system that the homeowners had installed in their home after the
burglary. The specific question that we now decide is whether the cost of the
security system installed by the homeowners is an “economic loss,” as defined
by RSA 651:62, III(a), and is therefore a compensable expense under New
Hampshire’s restitution statute. See RSA 651:61-a, :62, :63 (2016) (amended
2018). Because we conclude that the cost of the system is not an “economic
loss,” we reverse.
The pertinent facts are as follows. In December 2017, the defendant pled
guilty to the February 2016 burglary of a residence owned by a married couple
in Stratham. During his plea and sentencing hearing, the defendant and the
State disputed the amount of restitution that the defendant would be required
to pay to the homeowners. The defendant agreed to pay $1,250, which is the
uninsured loss that the homeowners sustained for the stolen property. The
defendant, however, challenged the trial court’s authority to order him to pay
for the cost of the homeowners’ new security system: $2,123.64. Without
conceding that the cost of the security system was compensable as restitution,
the defendant pled guilty on condition that he would pay a “maximum . . . of
$3,373.64,” which is the total of the uninsured loss and the cost of the system.
RSA 651:63, I, provides, in pertinent part, that “[a]ny offender may be
sentenced to make restitution in an amount determined by the court.” RSA
651:63, I. “Restitution” is defined, in pertinent part, as “money or service
provided by the offender to compensate a victim for economic loss.” RSA
651:62, V. In turn, “economic loss” means
out-of-pocket losses or other expenses incurred as a direct result
of a criminal offense, including:
(a) Reasonable charges incurred for reasonably needed
products, services and accommodations, including but not
limited to charges for medical and dental care, rehabilitation,
and other remedial treatment and care including mental health
services for the victim or, in the case of the death of the victim,
for the victim’s spouse and immediate family;
(b) Loss of income by the victim or the victim’s dependents;
(c) The value of damaged, destroyed, or lost property;
(d) Expenses reasonably incurred in obtaining ordinary and
necessary services in lieu of those the injured or deceased
victim would have performed, if the crime had not occurred, for
the benefit of the victim or the victim’s dependents;
(e) Reasonable expenses related to funeral and burial or
crematory services for the decedent victim.
RSA 651:62, III.
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Following the plea and sentencing hearing, the State filed a
memorandum of law regarding restitution, arguing that the cost of the security
system was compensable as an “economic loss” under RSA 651:62, III. The
trial court ordered an evidentiary hearing to “determine if the installation . . .
was a ‘direct result’ of Defendant’s burglary; and, if so, whether the legislature
intended RSA 651:62, III(a) to include restitution payments for security
systems.” During the hearing, one of the homeowners, the husband, testified
that, following the burglary, he and his wife felt unsafe in their home, and that
the security system helped them to feel safer. The husband testified that the
burglary was the only reason that he and his wife had considered purchasing a
security system. The defendant, however, argued that the cost of the system
was not an “economic loss” as defined by RSA 651:62, III(a).
Following the hearing, the trial court found that the expense was an
“economic loss” under RSA 651:62, III(a), reasoning that the homeowners had
purchased the security system as a direct result of the burglary, and that the
system was “comparable to a victim’s receipt of mental health counseling.” The
court ordered the defendant to pay for the cost of the system. This appeal
followed.
On appeal, the defendant argues that the trial court erred in ruling that
the cost of the system was compensable as restitution because: (1) the cost of
the security system does not qualify as an “economic loss” under RSA 651:62,
III(a) and reimbursement of that cost is a windfall for the homeowners; (2) the
homeowners did not purchase the system as a direct result of his offense; and
(3) the homeowners’ purchase was motivated by a “generalized feeling of
insecurity,” rather than a credible threat of future harm by the defendant. The
State counters that the cost of the system is a compensable “economic loss”
because the burglary was a “but-for” cause of the homeowners’ purchase of the
system, and, given the burglary, the system was, under RSA 651:62, III(a), a
“reasonably needed product[], service[] [or] accommodation[].” RSA 651:62,
III(a). The State also argues that allowing the reimbursement advances the
statute’s purpose of “increas[ing], to the maximum extent feasible, the number
of instances in which victims receive restitution.” RSA 651:61-a, II. We are not
persuaded by the State’s arguments.
Determining the appropriate restitution amount is within the discretion
of the trial court. See State v. Schwartz, 160 N.H. 68, 71 (2010). If the factual
basis for restitution is disputed, however, the State must prove by a
preponderance of the evidence that the victim’s loss or damage is causally
connected to the offense and bears a significant relationship to the offense. Id.
In reviewing the trial court’s ruling, we accept its factual findings unless they
lack support in the record or are clearly erroneous. Id. Our review of the trial
court’s legal conclusions is de novo. Id.
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Resolution of the question of whether the cost of the security system is a
compensable “economic loss” requires that we engage in statutory
interpretation. “We review the trial court’s statutory interpretation de novo.”
Franciosa v. Hidden Pond Farm, 171 N.H. 350, 355 (2018). The restitution
statute is part of the Criminal Code; therefore, we construe it “according to the
fair import of [its] terms and to promote justice.” RSA 625:3 (2016). “In
matters of statutory interpretation, we are the final arbiter of the intent of the
legislature as expressed in the words of the statute considered as a whole.”
Petition of Carrier, 165 N.H. 719, 721 (2013). “We first look to the language of
the statute itself, and, if possible, construe that language according to its plain
and ordinary meaning.” Id. “We interpret legislative intent from the statute as
written and will not consider what the legislature might have said or add
language that the legislature did not see fit to include.” Id. “The legislature is
not presumed to waste words or enact redundant provisions and whenever
possible, every word of a statute should be given effect.” Garand v. Town of
Exeter, 159 N.H. 136, 141 (2009) (quotation omitted). “We construe all parts of
a statute together to effectuate its overall purpose and avoid an absurd or
unjust result.” Carrier, 165 N.H. at 721. “Moreover, we do not consider words
and phrases in isolation, but rather within the context of the statute as a
whole.” Id. “This enables us to better discern the legislature’s intent and to
interpret statutory language in light of the policy or purpose sought to be
advanced by the statutory scheme.” Id.
Restitution is meant to compensate a victim only for “losses” directly
arising from a crime. See RSA 651:61-a, I. The restitution statute’s statement
of purpose includes a legislative finding that “victims of crimes often suffer
losses through no fault of their own and for which there is no compensation,”
and a presumption that victims “will be compensated by the offender who is
responsible for the loss.” Id. (emphases added). For an expense to be
compensable as restitution, the State must prove that the expense represents
“loss or damage” to the victim that was caused by the defendant. Schwartz,
160 N.H. at 71-72 (quotation omitted); see also State v. Gibson, 160 N.H. 445,
450 (2010). When a defendant causes a victim to suffer a loss, the restitution
statute creates an “obligation to make the victim whole.” State v. Burr, 147
N.H. 102, 104 (2001).
Here, the cost of the security system is not a “loss” to the homeowners
because they are not replacing a preexisting system. Although installation of
the system may have lessened the homeowners’ post-burglary anxiety,
reimbursing them for the expenditure would not merely restore them to the
position they were in before the crime; rather, it would leave the homeowners
better off — owning a new asset of considerable value.
The State argues that the cost of the security system is compensable
because it is similar to the types of expenditures that are compensable under
RSA 651:62, III(a): “reasonably needed products, services and accommodations,
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including but not limited to charges for medical and dental care, rehabilitation,
and other remedial treatment and care including mental health services for the
victim.” RSA 651:62, III(a). The trial court ruled that “the phrase ‘including
but not limited to’ as it is used in section III(a) means exactly what it says—
restitution in this matter is not limited to the types of items specifically
enumerated.” The trial court found that “on the unique facts of this case,” the
homeowners’ installation of the security system “is comparable to a victim’s
receipt of mental health counseling.” The defendant counters that the trial
court erred because the security system is “not of the same type as the
examples listed in RSA 651:62, III.” We agree with the defendant.
Although we agree with the trial court that the term “including” indicates
that items listed are not exhaustive, we conclude that the trial court’s
interpretation of the statute is too broad. As we have often observed, “[w]hen
the legislature uses the phrase ‘including, but not limited to’ in a statute, the
application of that statute is limited to the types of items therein
particularized.” In the Matter of Clark & Clark, 154 N.H. 420, 423 (2006).
Under the principle of ejusdem generis, “when specific words in a statute follow
general ones, the general words are construed to embrace only objects similar
in nature to those enumerated by the specific words.” State v. Proctor, 171
N.H. 800, 806 (2019) (quotation omitted). Accordingly, we construe the words
“reasonably needed products, services and accommodations” listed in RSA
651:62, III(a) to embrace only items similar in nature to those enumerated by
the specific words that follow: “medical and dental care, rehabilitation, and
other remedial treatment and care including mental health services.” RSA
651:62, III(a). We conclude that the purchase and installation of the new
security system is not sufficiently similar in nature to the types of “remedial
treatment and care” listed in RSA 651:62, III(a). Unlike medical, dental, and
mental health care, a security system is not an individualized treatment
provided by a healthcare professional intended to restore the health of the
victim. While the types of treatment and care enumerated in the statute are
remedial healthcare services, a security system is an object not at all
associated with the healthcare profession.
In addition, in this case, no mental health counselor or other medical
provider recommended that the homeowners purchase and install the security
system. Accordingly, we need not decide whether the cost of a security system
might be compensable if the system is recommended as treatment by a medical
provider. Cf. State v. Pumphrey, 338 P.3d 819, 824 (Or. Ct. App. 2014) (finding
that cost of obtaining police reports about defendant from a different incident
in a different city was compensable as restitution because victim’s counselor
recommended that victim review those reports as part of treatment for panic
attacks arising from the defendant’s crime); State v. Higley, 253 P.3d 750, 754
(Idaho Ct. App. 2010) (ordering defendant to pay lost wages to victim who quit
his job because victim’s counselor recommended victim do so to relieve
symptoms consistent with post-traumatic stress caused by the defendant’s
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crime). That is an issue for another day. Under these circumstances, and
absent a recommendation from a medical professional, we conclude that the
security system installed by the homeowners is not sufficiently similar in
nature to the “products, services and accommodations” enumerated in RSA
651:62, III(a) to be compensable as restitution. See Clark, 154 N.H. at 423;
Proctor, 171 N.H. at 806.
The dissent states that “ejusdem generis should not be employed to
further limit the types of charges for which a defendant may be required to
reimburse a victim.” Although the legislature could have defined “economic
loss” simply as “[r]easonable charges incurred for reasonably needed products,
services and accommodations,” it used the phrase “including but not limited
to,” and listed specific examples of “products, services and accommodations.”
RSA 651:62, III(a). Accordingly, based on the language chosen by the
legislature, we find that the application of the statute is limited to the types of
items particularized. See Clark, 154 N.H. at 423.
Nor do we agree with the dissent’s contention that our construction
renders the phrase “other expenses incurred as a direct result of a criminal
offense” superfluous. RSA 651:62, III. That phrase itself is limited by the word
“including,” and by the specific examples of “economic loss” set forth in
paragraphs III(a), (b), (c), (d), and (e). If we were to adopt the dissent’s broad
construction of “other expenses incurred as a direct result of a criminal
offense,” paragraphs III(a) through (e) would be rendered mere surplusage. See
Garand, 159 N.H. at 141 (providing that “whenever possible, every word of a
statute should be given effect” (quotation omitted)).
The State also argues that “economic loss” under RSA 651:62, III(a)
should be construed to allow reimbursement for the cost of the security
system, because doing so would be consistent with the statutory purpose of
“increas[ing], to the maximum extent feasible, the number of instances in
which victims receive restitution.” RSA 651:61-a, II. Although we agree that
ordering reimbursement would be consistent with the statutory purpose, a
broad statutory purpose does not “override the specific language chosen by the
legislature.” Appeal of Town of Lincoln, 172 N.H. 244, 251 (2019). As
discussed above, RSA 651:62 and :63 provide that victims may receive
restitution only for expenses that meet the definition of “economic loss.” RSA
651:62, III, V. In addition, RSA 651:61-a, I, provides that restitution is
intended only to compensate a victim for “losses.” RSA 651:61-a, I; Schwartz,
160 N.H. at 71-72. Under the State’s construction, there would be virtually no
limit to the expenses that could be compensable as restitution, as any payment
from a defendant to a victim, no matter how tenuous the connection with the
crime, would “increase, to the maximum extent feasible, the number of
instances in which victims receive restitution.” RSA 651:61-a, II.
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Likewise, although restitution is intended, in part, as the dissent
stresses, to “rehabilitate the offender” and “reinforce the offender’s sense of
responsibility,” these goals “must be read in the context of other language set
forth in the statement of [purpose] and in the statute itself.” Franciosa, 171
N.H. at 356. Here, the legislature restricted restitution to compensating
victims only for “losses,” RSA 651:61-a, I, and included specific examples of
“products, services and accommodations.” RSA 651:62, III(a). Any payment to
a victim could arguably serve to rehabilitate an offender, but the statute
requires more than the mere advancement of this goal in order for an expense
to be compensable.
The State next urges us to adopt the reasoning employed by the
Wisconsin Court of Appeals in State v. Queever, 887 N.W.2d 912 (Wis. Ct. App.
2016), and the Oregon Court of Appeals in State v. Christy, 383 P.3d 406 (Or.
Ct. App. 2016), when those courts affirmed the payment of restitution to the
victims as reimbursement for the cost of security systems. We decline to do so,
however, as those cases are distinguishable on their facts. In Queever, the
defendant burglarized the victim’s home several times over a period of months,
and was ordered to pay restitution for the cost of the victim’s security system
because the victim purchased the system during the series of burglaries, and
used the system to catch the burglar. See Queever, 887 N.W.2d at 914-18.
The court reasoned that the cost of the security system was compensable in
part because the system was a necessary expense to prevent additional
burglaries by the same defendant. Similarly, in Christy, the defendant was
ordered to pay the cost of a security system that the victim installed after a
burglary in part because of “the likelihood that [the defendant] would repeat”
his act of burglarizing the victim’s home. Christy, 383 P.3d at 408. As in
Queever, the security system was deemed necessary to protect the victim from
the same defendant. See id.
In contrast, there is no evidence in this case that the homeowners
believed that the defendant was likely to commit another burglary, nor does the
record suggest that the defendant is likely to again burglarize their residence.
Unlike in Queever and Christy, the security system in this case merely helps
protect the homeowners against the same general risk of crime faced by other
members of the public.
Finally, we observe that our analysis and conclusion that the cost of the
security system is not compensable as restitution are in accord with the
reasoning employed by a majority of courts in states that have addressed the
same issue. Although the language of our restitution statute differs to some
degree from the statutory language employed in other states, the rationale
underlying the decisions is sound. See, e.g., State v. Forant, 719 A.2d 399,
403 (Vt. 1998) (finding that, although victim was afraid of future harassment
by husband after domestic assault, victim’s expenses for changing locks and
obtaining new phone number were not compensable as restitution); Howell v.
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Com., 652 S.E.2d 107, 108-09 (Va. 2007) (finding that victims’ purchase of
security system following burglary was not compensable, where restitution
statute covered “damages or losses caused by the offense” (quotation omitted));
TPJ v. State, 66 P.3d 710, 711-12 (Wyo. 2003) (finding that victim’s purchase
of new car alarm after car break-in was not compensable, where restitution
statute covered “damage or loss”); People v. Fitzgerald, 728 N.E.2d 1271, 1272,
1275 (Ill. App. Ct. 2000) (finding that cost of security system installed in
woman’s home was not compensable, even though she installed the system
because her ex-boyfriend had broken into her home and attacked her); People
v. Reyes, 166 P.3d 301, 302-03 (Colo. App. 2007) (finding that victim’s
purchase of new interior locks following burglary was not compensable, where
restitution statute covered “losses or injuries proximately caused by an
offender’s conduct” (quotation omitted)); Rich v. State, 890 N.E.2d 44, 51-52
(Ind. Ct. App. 2008) (finding that “[t]he fact that the victims expended money
on a security system in response to [a burglary] does not make such an
expenditure compensable through restitution” because “another burglary
victim could purchase dogs; another, firearms; and another home-owner could
be unnerved to the point that he or she moves to a different neighborhood”);
State v. Chambers, 138 P.3d 405, 414-15 (Kan. Ct. App. 2006) (finding that
victim’s purchase of security system following burglary was not compensable,
where restitution statute covered “damage or loss caused by the defendant’s
crime” (quotation omitted)).
For the foregoing reasons, we hold that the cost of the homeowners’
security system is not an “economic loss” within the meaning of RSA 651:62,
III(a), and therefore is not compensable as restitution.
Reversed.
DONOVAN, J., concurred; ABRAMSON, J., retired superior court justice,
specially assigned under RSA 490:3, concurred; HICKS, J., with whom HANTZ
MARCONI, J., joined, dissented.
HICKS, J., dissenting. Respectfully, I dissent from the court’s holding
that the Superior Court (Wageling, J.) erred by ordering the defendant, Bruce
Moore, to reimburse the victims, a married couple, for a home security system
installed after he burglarized their residence.
The trial court found, or the record supports, the following facts. The
victims have lived in the same Stratham residence for the past decade. On
February 17, 2016, the defendant burglarized their residence and stole items of
both monetary and sentimental value. The burglary traumatized the victims.
As a result of the burglary, the husband no longer felt safe in his home and
was unable to fall asleep at night. Although he replaced the locks on his home,
doing so did not quell his anxiety. As a result, he signed a contract with
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American District Telegraph (ADT) to install a security system in the home.
Installing the system made the husband feel more secure. According to the
husband, he signed the contract with ADT approximately three weeks after the
burglary, after having requested quotes from multiple companies.
In December 2017, the defendant pled guilty to the burglary charge. The
State requested that, as part of the defendant’s sentence, he be ordered to pay
restitution to the victims in the amount of $3,373.64. $2,123.64 of this
amount represented the cost of the home security system. The defendant
objected to the request pertaining to the security system, arguing that
installing a security system “to prevent future crime is not an economic loss
suffered due to damage [he] inflicted,” and, therefore, is not a reimbursable
expense under the restitution statute.
After reviewing the parties’ memoranda of law on the issue, the trial
court found “the record insufficient to decide whether the . . . installation of a
security system, in this particular case, occurred as a ‘direct result’ of [the]
Defendant’s criminal conduct,” as is required by the restitution statute. See
RSA 651:62, III, V, VI (2016). The court, therefore, held an evidentiary hearing
on that issue. Thereafter, the trial court ruled that the cost of the security
system was a reimbursable expense under the restitution statute, and found
that the State had met its burden of proving, by a preponderance of the
evidence, that the security system was a reasonable charge, incurred for a
reasonably needed product, as a direct result of the defendant’s criminal
offense. This appeal followed.
In reviewing a trial court’s restitution order, we accept its factual findings
unless the record does not support them or they are clearly erroneous. See
State v. Schwartz, 160 N.H. 68, 71 (2010). We review the trial court’s legal
conclusions de novo. Id.
We also review its statutory interpretation de novo. State v. Proctor, 171
N.H. 800, 805 (2019). In matters of statutory interpretation, we are the final
arbiter of the intent of the legislature as expressed in the words of a statute
considered as a whole. Id. We first look to the language of the statute itself,
and, if possible, construe that language according to its plain and ordinary
meaning. Id. We interpret legislative intent from the statute as written and
will not consider what the legislature might have said or add language that the
legislature did not see fit to include. Id. We must give effect to all words in a
statute, and presume that the legislature did not enact superfluous or
redundant words. Id. Moreover, we do not consider words and phrases in
isolation, but rather within the context of the statute as a whole. Petition of
Second Chance Bail Bonds, 171 N.H. 807, 811 (2019). This enables us to
better discern the legislature’s intent and to interpret statutory language in
light of the policy or purpose sought to be advanced by the statutory scheme.
Id. “[W]e do not consider legislative history to construe a statute that is clear
9
on its face.” State v. Surrell, 171 N.H. 82, 85 (2018). “We do not strictly
construe criminal statutes, but rather construe them according to the fair
import of their terms and to promote justice.” State v. Paige, 170 N.H. 261,
264 (2017) (quotation omitted); see RSA 625:3 (2016).
In reversing the trial court’s restitution order, the majority narrowly
construes the restitution statute. Doing so is inconsistent with legislative
intent.
The legislature has directed that the restitution statute is to apply
broadly. The statute, enacted in 1996, establishes “a presumption that the
victim will be compensated by the offender who is responsible for the loss.”
RSA 651:61-a, I (2016); see Laws 1996, 286:6. “Any offender may be sentenced
to make restitution in an amount determined by the court,” and if the court
does not order restitution, it must state its reasons for not ordering it on the
record or in a sentencing order. RSA 651:63, I (2016). The restitution statute
is intended to “increase, to the maximum extent feasible, the number of
instances in which victims receive restitution.” RSA 651:61-a, II (2016).
Restitution is not “contingent upon an offender’s current ability to pay or upon
the availability of other compensation.” Id. “[T]he overall purpose of the
restitution statute . . . is to rehabilitate the offender,” not as the majority
implies, to make the victim whole. State v. Burr, 147 N.H. 102, 104 (2001); see
RSA 651:61-a (2016).
Accordingly, the legislature has broadly defined what constitutes
“restitution” under the statute. Restitution is not limited to a victim’s out-of-
pocket losses. Rather, restitution is statutorily defined as “money or service
provided by the offender to compensate a victim for economic loss, or to
compensate any collateral source subrogated to the rights of the victim, which
indemnifies a victim for economic loss under this subdivision.” RSA 651:62, V.
The term “economic loss” is not limited to “out-of-pocket losses,” but includes
“other expenses incurred as a direct result of a criminal offense.” RSA 651:62,
III (emphasis added). The majority’s construction renders the phrase “other
expenses incurred as a direct result of a criminal offense” superfluous.
The term “economic loss” is itself broadly defined to include:
(a) Reasonable charges incurred for reasonably needed products,
services and accommodations, including but not limited to charges
for medical and dental care, rehabilitation, and other remedial
treatment and care including mental health services for the victim
or, in the case of the death of the victim, for the victim’s spouse
and immediate family;
(b) Loss of income by the victim or the victim’s dependents;
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(c) The value of damaged, destroyed, or lost property;
(d) Expenses reasonably incurred in obtaining ordinary and
necessary services in lieu of those the injured or deceased victim
would have performed, if the crime had not occurred, for the
benefit of the victim or the victim’s dependents;
(e) Reasonable expenses related to funeral and burial or crematory
services for the decedent victim.
Id.
Thus, to be compensable as restitution under RSA 651:62, III(a), a
charge incurred for “products, services and accommodations” must be
“reasonable” and the products, services and accommodations must be
“reasonably needed.” The only other legislatively-imposed limitations are that:
(1) the charges must have been incurred “as a direct result” of the defendant’s
“criminal offense”; and (2) the restitution ordered must not “compensate the
victim more than once for the same injury.” RSA 651:62, III(a), :63, I.
Nothing in this statutory scheme requires that the “reasonably needed
products, services and accommodations” replace a victim’s prior products,
services and accommodations. Nor does the statutory scheme require that
such products, services and accommodations be recommended by a mental
health counselor or other medical service provider before they are
compensable. The legislature did not include such limitations in RSA 651:62,
III(a), and we should not add language to the statute that the legislature did
not see fit to include. State v. Gilley, 168 N.H. 188, 189-90 (2015); see State v.
Labrie, 171 N.H. 475, 484 (2018).
In construing the restitution statute and deciding whether an expense
incurred to purchase a home security system is reimbursable under it, both
the majority and the defendant rely upon the doctrine of ejusdem generis. The
defendant contends, and the majority holds, that because a security system is
not “of the same type” as the examples of “[r]easonable charges incurred for
reasonably needed products, services and accommodations” listed in RSA
651:62, III(a), it is not a reimbursable expense. (Quotation omitted.)
“Ejusdem generis means of the same kind, and is a variation of the
maxim noscitur a sociis.” 2A Norman J. Singer & J.D. Shambie Singer,
Statutes and Statutory Construction § 47.17, at 364 (7th rev. ed. 2014)
(quotation omitted). We have articulated the principle of ejusdem generis in
two ways. Proctor, 171 N.H. at 806. We have said that it provides that “where
general words follow an enumeration of persons or things, by words of a
particular and specific meaning, such general words are not to be construed in
their widest extent, but are to be held as applying only to persons or things of
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the same kind or class as those specifically mentioned.” Id. (quotation
omitted). We have also stated that the doctrine “provides that, when specific
words in a statute follow general ones, the general words are construed to
embrace only objects similar in nature to those enumerated by the specific
words.” Id. (quotation omitted). “Under either articulation, the general words
are construed to apply only to persons or things that are similar to the specific
words.” Id.
Applying ejusdem generis to RSA 651:62, III(a) is inconsistent with
legislative intent. Contrary to the implication of the majority opinion,
ejusdem generis “‘is, like other canons of statutory construction, only an aid to
the ascertainment of the true meaning of the statute. It is neither final nor
exclusive.’” 2A Singer & Shambie Singer, supra § 47.22, at 401-02 (quoting
Helvering v. Stockholms &c. Bank, 293 U.S. 84, 89 (1934)); see In the Matter of
Regan & Regan, 164 N.H. 1, 9 (2012). The doctrine “is always subject to the
qualification that general words will not be used in a restricted sense if the act
as a whole demonstrates a different legislative purpose in view of the objectives
to be obtained.” Regan, 164 N.H. at 9 (quotation omitted); see State v. Small,
99 N.H. 349, 350 (1955) (“As an aid in determining legislative intent, the rule
has been employed in this state unless a broader construction is necessary to
give effect to the legislative meaning.” (citation and quotation omitted)). “The
crux of the matter is that the rule of ejusdem generis is only a constructionary
crutch and not a judicial ukase in the ascertainment of legislative intention.”
Small, 99 N.H. at 351.
Given that the objective of the restitution statute is to “increase to the
maximum extent feasible, the number of instances in which victims receive
restitution,” RSA 651:61-a, II, ejusdem generis should not be employed to
further limit the types of charges for which a defendant may be required to
reimburse a victim. For all of the above reasons, therefore, I agree with the
trial court that its restitution order complied with the restitution statute.
To the extent that the defendant argues that the security system
purchase had too attenuated a causal connection to his criminal offense to be
reimbursable under the statute, I disagree. We have held that to prove that the
loss or expense was incurred by the victim as a “direct result” of the offender’s
crime, the State must “prove that the loss is causally connected to the offense
and bears a significant relationship to [it].” State v. Gibson, 160 N.H. 445, 451
(2010). We have not “develop[ed] a test for determining the outer limits of the
connection that must exist between harm or loss, on the one hand, and
criminal conduct, on the other, to support an order of restitution.” State v.
Pinault, 168 N.H. 28, 32 (2015). However, we have explained that “[t]he plain
language of the restitution statute clearly and unambiguously requires a
causal connection between the criminal act and the economic loss or damage.”
Id.
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Here, the trial court found that the purchase of the security system was
causally connected, and bore a significant relationship, to the defendant’s
criminal offense (unauthorized entry for the purpose of theft), and this finding
is supported by the evidence. The husband testified that the only reason that
he purchased the security system is because the defendant burglarized his
home. Although the husband has lived in the home for a decade, he testified
that he had never before felt the need to purchase such a system because he
had never before felt unsafe in his own home. The husband testified that the
defendant’s criminal offense, burglary, caused him to feel unsafe, and the
purchase of the security system made him feel safer. As the trial court found,
and the record supports, the husband’s purchase of the security system
“helped remediate the anxiety and trauma that was inflicted upon him as a
result of Defendant’s criminal conduct.”
The husband also testified that his purchase of the security system and
the defendant’s burglary of his home were temporally proximate: the burglary
occurred on February 17, 2016, and the husband purchased the security
system on March 3, 2016. The temporal proximity of the two events supports
the trial court’s finding that they are causally connected. Because the record
supports the trial court’s finding that the purchase of the security system was
causally connected, and bore a significant relationship, to the defendant’s
criminal offense, and because I cannot say that this finding is clearly
erroneous, I would uphold it.
The defendant contends that finding the husband’s purchase of the
security system to be a “direct result of” the defendant’s burglary is “unjust.”
He asserts that “there is no logic to holding a defendant responsible for security
measures taken by the victim to protect against the risk that another
individual will commit an unrelated future crime,” and that absent evidence
that the husband purchased the system because he “feared a future crime
connected specifically to [the defendant] or his accomplice,” the trial court
should not have found the purchase reimbursable.
However, nothing in the restitution statute precluded the trial court from
finding that the husband’s purchase of a security system is causally connected
to the defendant’s crime of burglary under the facts of this case. Cf. State v.
Oakes, 161 N.H. 270, 286 (2010) (concluding that the trial court did not violate
the restitution statute by ordering the defendant to pay restitution to the victim
in the future for counseling costs occasioned by his crime because nothing in
that statute “precludes a trial court from ordering a defendant to pay
restitution for future economic losses caused by his or her crime”). The
defendant’s remaining arguments regarding whether the purchase of the
security system was a “direct result” of the burglary are based upon case law
developed in other jurisdictions construing other restitution statutes, which are
of little help in construing New Hampshire’s restitution statute. Because I
would interpret the restitution statute according to its plain meaning, I do not
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consider the defendant’s arguments regarding its legislative history or the rule
of lenity. See Surrell, 171 N.H. at 88. For all of the above reasons, therefore, I
would affirm the trial court’s restitution order.
HANTZ MARCONI, J., joins in the dissent.
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