Criminal Law

Stacie Ayn Murphy Corcoran
2011 graduate of Suffolk University Law School, practicing in Mass. and NH

No. 2018-0602
June 10, 2020

  • Whether the cost of the security system installed is an “economic loss” as defined by RSA 651:62, III(a).

The defendant pled guilty to burglary but disagreed with the trial court on the amount of restitution owed the homeowners. As part of this plea, he agreed to pay a maximum amount, but he did not concede that the cost of the security system was compensable as restitution. After the plea and sentencing hearing, the State filed a memorandum of law and the trial court found that the expense was an “economic loss” under RSA 651:62, III(a) and the defendant appealed.

The Court is not persuaded by the State’s arguments that “allowing the reimbursement advances the statute’s purpose of “increase[ing], to the maximum extent feasible the number of instances in which victim’s receive restitution.” The Court reviewed the trial court’s legal conclusions de novo. Because the statute is part of the Criminal Code they construed the statute’s meaning “according to fair import of [its] terms and to promote justice,” RSA 625:3 (2016); “construing all part of the statute together to effectuate its over- all purpose and to avoid an unjust result” Carrier, 165 N.H. at 721; and within the context of the statute as a whole.

The Court found that the State did not prove that the expense represents a “loss” but that it would leave the homeowner’s in a better position because they did not previously have a security system. The State further argues that the security system is similar to the types of compensable expenditures under RSA 651:62, III(a). The Court agreed with the defendant that trial court erred, finding their interpretation of the statute was too broad. They construed the statute to embrace only items similar in nature to the types of “remedial treatment and care” in RSA 651:62, III(a) and the security system was not similar.

The Court then addressed the dis- sent’s arguments, finding: 1) based on the statutory language the statute is limited to “the types of items particularized;” 2) if they had followed  dissent’s construction it would have rendered ““other expenses incurred as a direct result of a criminal offense” superfluous;” and 3) based on the State’s arguments there would be virtually no limit compensable expenses. The Court analyzes but  declines  to  follow  the reasoning in Wisconsin Court of Ap- peals State v. Queever, 887 N.W.2d 912 (Wis. Ct. App. 2016), where a defendant had perpetrated a series of burglaries on a homeowner and was likely to do so again. Additionally, the Court points out that the majority of courts that have addressed this issue have also found that a security system is not compensable as restitution.

The  dissent  would  affirm  the  trial court’s findings. They accept the trial court’s factual findings, based on an evidentiary hearing, that the State had met it’s burden of proof, by a preponderance of the evidence, that the security system was a reasonable charge as a direct result of the defendant’s criminal offense. Like the majority, the dissent reviews the statutory interpretation de novo. The dissent found the majority had narrowly construed the restitution statute, inconsistent with legislative intent, rendering the phrase “other expenses incurred as a direct result of a criminal offense superfluous.” The dissent highlights that the principal ejusdem generis, that the majority and the defendant rely on, can be articulated in two ways but that applying it is inconsistent with legislative intent. The dissent disagrees with the defendant’s argument that the causal connection is too attenuated. The restitution statute, which the dissent interprets according to its plain meaning, does not preclude the trial court from finding causal connection between the burglary and the purchase of a security system.


Gordon J. MacDonald, attorney general (Stephen D. Fuller, Senior assistant attorney general on the brief, and Sean R. Locke, assist attorney general orally) for the State. Thomas Barnard, senior assistant appellate defender of Concord, on the brief and orally for the defendant.