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State v. Dragon

Supreme Court of New Hampshire

August 9, 2013

State of New Hampshire
v.
Brian Scott Dragon

The defendant, Brian Scott Dragon, appeals an order of the trial court requiring that he pay restitution of $13, 254.54 to Public Service Company of New Hampshire (PSNH) following his no contest plea to a class A misdemeanor charge of criminal mischief. We affirm.

The criminal mischief complaint charged the defendant with recklessly damaging the property of PSNH; to wit, a transformer. Pursuant to a negotiated plea agreement, the defendant's sentence was deferred for one year based upon good behavior and payment of restitution. The parties requested a separate hearing on the amount of restitution. At the restitution hearing, the State presented evidence through a claims and collection representative from PSNH. The defendant argues that this testimony was insufficient to establish that his criminal conduct directly resulted in an economic loss to PSNH of $13, 254.54. He contends that the State failed to produce evidence of the condition of the transformer prior to his criminal act and also failed to establish that complete replacement, rather than repair, of the transformer was necessary.

RSA 651:62, V (2007) defines "restitution" in relevant part as "money or service provided by the offender to compensate a victim for economic loss." "Economic loss" includes the value of damaged, destroyed or lost property. RSA 651:62, III (2007). Determining the appropriate restitution amount is within the discretion of the trial court. State v. Gibson, 160 N.H. 445, 450 (2010). If the factual basis for restitution is disputed, the State must prove by a preponderance of the evidence that the loss or damage is causally connected to the offense and bears a significant relationship to the offense. Id. At the very least, the State must prove that the conduct for which the defendant was convicted was a substantial factor in producing the loss. See id.

The evidence in this case included: (1) the defendant's criminal act occurred at approximately 10:23 p.m. and resulted in the transformer being knocked off its foundation; (2) the act caused electric current to be cut off to at least one local business; (3) PSNH sent a team of three men to remove the transformer and replace it with a new unit; (4) any repairs to the damaged transformer would have been done by someone other than PSNH and necessitated removing the transformer from the site for an extended period of time; and (5) removing the transformer from its site would leave a void and create a safety issue.

Based on the record before us, we conclude that the trial court did not err in finding that the act for which the defendant was convicted was a substantial factor in producing the injury that required repair and that the repairs that were made were reasonable.

Affirmed.

HICKS, LYNN and BASSETT, JJ., ...


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