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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Carroll
No. 2012-758


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                  LISA COLLYNS

                          Argued: January 23, 2014
                         Opinion Issued: July 16, 2014

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


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

       CONBOY, J. Following a jury trial in Superior Court (Houran, J.), the
defendant, Lisa Collyns, was convicted of theft by deception, see RSA 637:4
(2007), and attempted theft by unauthorized taking, see RSA 629:1 (2007); RSA
637:3 (2007). Although the defendant appealed the trial court’s denial of her
motion to dismiss or to set aside the verdicts as to both convictions, at oral
argument she withdrew her appeal of the theft by deception conviction.
Because there was insufficient evidence to prove that the defendant attempted
to obtain the “property of another,” RSA 637:3, I, we reverse the attempted
theft by unauthorized taking conviction and remand.
      The jury could have found the following facts. On July 30, 2010, the
victim entered into a purchase and sale agreement to sell her restaurant to the
defendant. Because the restaurant was located in a building owned by a third
party, the transaction did not include the sale of real property. Under this
agreement, if the defendant failed to pay the full purchase price by
September 1, 2010, ownership of the restaurant would “remain with” the
victim.

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

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

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

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

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

       The defendant made the monthly payments required under the second
agreement through January 2011. In December 2010, the landlord of the
building in which the restaurant was located served the defendant with a
demand for rent and an eviction notice. At the defendant’s request, a friend
posted an advertisement listing restaurant equipment for sale. A potential
buyer responded to the advertisement and met the defendant and her friend at
the restaurant. They discussed which items were for sale, and the defendant’s
friend informed the buyer that some of the equipment was stored offsite. The
buyer paid for the equipment, and the defendant’s friend provided the buyer
with a receipt signed by the defendant. The buyer was told that he could
collect the equipment from the restaurant later that day. When the buyer
returned, the defendant unlocked the restaurant and left shortly thereafter.
While the buyer was preparing to remove the equipment, the landlord came to
the restaurant. The landlord called the police, and the buyer left the property
without taking the equipment.




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

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

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

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

      A challenge to the sufficiency of the evidence raises a claim of legal error;
therefore, our standard of review is de novo. State v. Kay, 162 N.H. 237, 243
(2011). “To prevail upon [her] challenge to the sufficiency of the evidence, the
defendant must prove that no rational trier of fact, viewing all of the evidence
and all reasonable inferences from it in the light most favorable to the State,
could have found guilt beyond a reasonable doubt.” State v. Fandozzi, 159
N.H. 773, 782 (2010) (quotation omitted).

       Pursuant to RSA 637:3, I, a person is guilty of the crime of attempted
theft by unauthorized taking “if [she attempts to] obtain[] or exercise[]
unauthorized control over the property of another with a purpose to deprive
him thereof.” Thus, the State was required to prove that the defendant (1)
attempted to obtain or exercise unauthorized control over (2) the property of




                                         3
another (3) with the purpose to deprive the other of the property. See RSA
629:1; RSA 637:3; see also State v. Gagne, 165 N.H. 363, 368 (2013).

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

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

       Resolution of this issue requires us to construe the relevant language of
RSA 637:2, IV. “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.” State v. Zubhuza, 166 N.H. ___, ___, 90 A.3d 614, 618 (2014)
(quotation omitted). “We construe provisions of the Criminal Code according to
the fair import of their terms and to promote justice.” Id. (quotation omitted);
see RSA 625:3 (2007). “We first look to the language of the statute itself, and,
if possible, construe that language according to its plain and ordinary
meaning.” Zubhuza, 166 N.H. at ___, 90 A.3d at 618 (quotation omitted). “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. (quotation omitted). “We must give effect to all
words in a statute, and presume that the legislature did not enact superfluous
or redundant words.” Id. (quotation omitted). “Finally, we interpret a statute
in the context of the overall statutory scheme and not in isolation.” Id.
(quotation omitted).

       RSA 637:2, IV exempts from the definition of “[p]roperty of another”
“[p]roperty in possession of the actor” when the other “has only a security
interest therein, even if legal title is in the creditor pursuant to a conditional
sales contract or other security agreement.” (Emphases added.) A “security
interest” is defined as “[a] property interest created by agreement or by
operation of law to secure performance of an obligation (esp[ecially] repayment
of a debt).” Black’s Law Dictionary 1478 (9th ed. 2009). A “security
agreement” is defined as “[a]n agreement that creates or provides for an



                                         4
interest in specified real or personal property to guarantee the performance of
an obligation.” Id. Therefore, by its plain meaning, the statute exempts from
the definition of “property of another” property that is in the possession of an
individual pursuant to an agreement that creates a property interest in the
other person to secure the performance of an obligation.

       This interpretation is supported by the commentary to the Model Penal
Code, which we may look to when interpreting analogous New Hampshire
statutes because our Criminal Code is largely derived from the Model Penal
Code. See State v. Donohue, 150 N.H. 180, 183 (2003). The commentary
explains that the effect of the language used in RSA 637:2, IV “is to exclude
from the theft provisions . . . efforts by debtors or conditional vendees to
dispose of personal or movable property subject to a security interest in ways
that prejudice the secured creditor.” Model Penal Code § 224.10 cmt. 1, at 343
(Official Draft and Revised Comments 1980) (explaining background for
misdemeanor crime of defrauding secured creditors); see State v. Marion, 122
N.H. 20, 23 (1982). Rather, such efforts by debtors or conditional vendees are
punishable under RSA 638:9 (2007), which establishes misdemeanor sanctions
for the fraudulent disposition of security interests. See Model Penal Code
§ 224.10 cmt. 1, at 343.

      In order to determine whether the defendant and the victim entered into
a security agreement giving the victim a security interest, we look to the
language of the agreement. “The interpretation of a contract is a question of
law, which we review de novo.” In the Matter of Liquidation of Home Ins. Co.,
166 N.H. ___, ___, 89 A.3d 165, 170 (2014) (quotation omitted). “When
interpreting a written agreement, we give the language used by the parties its
reasonable meaning, considering the circumstances and the context in which
the agreement was negotiated, and reading the document as a whole.” Id.
(quotation omitted). “Absent ambiguity, the parties’ intent will be determined
from the plain meaning of the language used in the contract.” Id. (quotation
omitted). We “judge the intent of the parties by objective criteria rather than
the unmanifested states of mind of the parties.” Lake v. Sullivan, 145 N.H.
713, 715 (2001) (quotation omitted).

       The State argues that “the issue of the ownership of the property, and
the terms of the contract, were in dispute,” and, therefore, “the matter was
properly decided by the jury.” We disagree. Under the terms of the second
agreement, the defendant agreed that “ownership of the equipment will belong
to [the victim] until the balance . . . is paid in full.” Notwithstanding the
“ownership” language, however, the import of the entire agreement was to vest
the victim with an interest in the equipment only until the defendant paid the
remaining balance due for the restaurant — a security interest. See State v.
Schmidt, 957 A.2d 80, 87 (Me. 2008) (vacating theft by unauthorized taking or
transfer convictions because victims — unpaid subcontractors and suppliers —



                                        5
“had only a right to repayment that could afford them a security interest in the
form of a mechanic’s lien on the property”); Sommers v. Sommers, 143 N.H.
686, 692 (1999) (finding language of stipulation in divorce decree awarding
automobile to defendant but conditioning transfer of title on defendant’s
payment of debt and taxes provided defendant with a vested property interest
and plaintiff with a security interest); Cutting v. Whittemore, 72 N.H. 107, 110
(1903) (explaining that “a vendor who sells a chattel, reserving the title until
the purchase price is paid, retains the general property therein, not as the
absolute owner, but as collateral security . . . . The reservation of the title is
but as security for the purchase price.”); cf. State v. Podzimek, 779 N.W.2d
407, 410 (S.D. 2010) (concluding defendant did not obtain property of another
by “disposing of, concealing or removing certain motor vehicles that were the
subject of a promissory note and chattel mortgage” (quotation omitted)); ACG
Credit Co. v. Gill, 152 N.H. 260, 263 (2005) (concluding transaction did not
create security interest because there was no underlying obligation).

      Because the equipment was in the defendant’s possession and the victim
had only a security interest in the equipment, the evidence was insufficient, as
a matter of law, to establish that the defendant attempted to take the “property
of another” within the meaning of RSA 637:2, IV. Accordingly, we reverse the
defendant’s conviction for attempted theft by unauthorized taking and remand.

                                                   Conviction for attempted
                                                   theft by unauthorized taking
                                                   reversed; and remanded.

     DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.




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