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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________

Rockingham
No. 2014-0378


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                  SHAWN GILLEY

                             Argued: May 7, 2015
                      Opinion Issued: September 22, 2015

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


      Sarah E. Newhall, assistant appellate defender, of Concord, on the brief
and orally, for the defendant.

       BASSETT, J. The defendant, Shawn Gilley, was convicted on one count
of class A felony burglary. See RSA 635:1 (2007) (amended 2014). The
burglary statute elevates the offense from a class B to a class A felony when it
is “perpetrated in the dwelling of another at night.” RSA 635:1, II. Before trial,
the defendant filed a motion to dismiss the class A felony indictment, arguing
that the house he had burglarized was not the dwelling of another and,
therefore, did not trigger the felony enhancement under that statute. See id.
He contended that the house had ceased to be the “dwelling of another”
because its resident had moved out and listed the house for sale. The Superior
Court (Delker, J.) denied the motion. Because we conclude that the house did
not lose its character as a dwelling when left vacant and listed for sale, we
affirm.

       The defendant submitted to a bench trial on the following stipulated
facts. On the night of June 25, 2013, he entered “a house” intending to steal
copper piping. James T. Alexander owned the house and had previously lived
there. Prior to June 25, Alexander moved out of the house, leaving it vacant.
All beds, linens, and furniture had been removed, and Alexander had listed the
house for sale. Further, “[t]he property was not sold or otherwise occupied
until September 17, 2013.” The trial court found the defendant guilty of class
A felony burglary. This appeal followed.

       On appeal, the defendant argues that the trial court erred in finding that
a vacant house constitutes the “dwelling of another” under RSA 635:1, II. He
contends that the house ceased to be the “dwelling of another” when Alexander
moved out and listed the house for sale because it no longer had “an
identifiable occupant or owner who, if not currently living in the house, has
intent to return to it and resume living there.” The defendant does not argue
that the house in question was never the “dwelling of another,” or that the
house was abandoned. The State counters that whether the resident intends
to return does not matter in determining whether a building is the “dwelling of
another,” and that, therefore, the house did not lose its character as a dwelling
when Alexander moved out and listed it for sale. The State further argues that
the purpose of the felony enhancement is to deter the burglarizing of
residential homes, and that this deterrent effect is best accomplished if
buildings which constitute “dwelling[s] of another” are easily recognizable to
would-be burglars. The narrow issue before us on appeal, therefore, is whether
the house ceased to be the “dwelling of another” for the purposes of RSA 635:1,
II when Alexander moved out and listed it for sale.

       Because resolution of this issue requires the interpretation of a statute,
our review is de novo. State v. Gibson, 160 N.H. 445, 448 (2010). In matters
of statutory interpretation, we are the final arbiters of the intent of the
legislature as expressed in the words of the statute considered as a whole. Id.
We construe provisions of the Criminal Code according to the fair import of
their terms and to promote justice. 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. Further, we interpret legislative intent from the statute
as written and will not consider what the legislature might have said, or add
language that it did not see fit to include. Id. Finally, we interpret a statute in
the context of the overall statutory scheme and not in isolation. Id.

      The burglary statute states, in relevant part:

      I. A person is guilty of burglary if he enters a building or occupied
      structure, or separately secured or occupied section thereof, with


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      purpose to commit a crime therein . . . . It is an affirmative
      defense to prosecution for burglary that the building or structure
      was abandoned.

      II. Burglary is a class B felony unless it is perpetrated in the
      dwelling of another at night . . . in which case it is a class A
      felony . . . .

      III. “Occupied structure” shall mean any structure, vehicle, boat or
      place adapted for overnight accommodation of persons, or for
      carrying on business therein, whether or not a person is actually
      present . . . .

RSA 635:1 (emphasis added).

       “Dwelling of another” is not defined in RSA 635:1; consequently, we look
to its common usage, using the dictionary for guidance. See K.L.N.
Construction Co. v. Town of Pelham, 167 N.H. 180, 185 (2014). “Dwelling” is
defined as “a building or construction used for residence.” Webster’s Third
New International Dictionary 706 (unabridged ed. 2002). “Dwelling house” is
similarly defined: “Criminal law. A building, a part of a building, a tent, a
mobile home, or another enclosed space that is used or intended for use as a
human habitation . . . [o]ften shortened to dwelling.” Black’s Law Dictionary
619 (10th ed. 2014). These definitions suggest that, for a building to constitute
a dwelling, the character of the building must be residential, or the building
must be intended for use as a human habitation. Further, neither of these
definitions requires a current occupant who, even when not physically present,
has the intent to return. The legislature did not include language in RSA
635:1, II limiting the application of the term “dwelling of another” to buildings
which have a current occupant with the intent to return, see RSA 635:1, II, and
we will not add language that the legislature did not see fit to include. Gibson,
160 N.H. at 448.

      In State v. Timbury, we considered whether a house that was
infrequently used and “had been on the market for sale for about two years”
was nonetheless a “dwelling.” State v. Timbury, 114 N.H. 763, 765-66 (1974)
(decided under prior law). Without making any reference to whether the owner
intended to return, we concluded that the house had not lost its character as a
dwelling. Id. at 766. This case is similar to Timbury, in that Alexander left the
house vacant and listed it for sale. Here, in his motion to dismiss, the
defendant acknowledged that the house was, in fact, the “dwelling of another”
when it was lived in by Alexander, and also that it was the “dwelling of another”
when it was later purchased by a new owner. We are not persuaded that the
house lost its character as a dwelling in the interim.




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       We recognize that there is a split of authority on this issue and observe
that decisions in other jurisdictions often hinge upon the specific wording of
their statutes. Compare Hobby v. State, 83 A.3d 794, 812 (Md. 2014) (holding
that a single-family home, which was unoccupied for eight months, remained a
dwelling in the interim), and People v. Henry, 881 N.Y.S.2d 701, 703 (App. Div.
2009) (holding that a residence, whose owners had moved out and listed the
property for sale, remained a dwelling), with State v. Scarberry, 418 S.E.2d
361, 364 (W. Va. 1992) (holding that a structure ceases to be a “dwelling
house” when its occupants leave with no intention of returning to it). Our
interpretation of RSA 635:1, II is in accord with case law in other jurisdictions
where courts have held that “once a structure becomes a dwelling . . . it does
not lose its character as a dwelling simply because it is left vacant for a time.”
Hobby, 83 A.3d at 812 (quotation omitted).

                                                  Affirmed.

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




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