Argued May 7, 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. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
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, 999 A.2d 240 (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 purpose to commit a crime therein ... . It is an affirmative defense to prosecution ...