NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 

well as formal revision before publication in the New Hampshire Reports. 

Readers are requested to notify the Reporter, Supreme Court of New 

Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 

editorial errors in order that corrections may be made before the opinion goes 

to press. Errors may be reported by E-mail at the following address: 

reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 

a.m. on the morning of their release. The direct address of the court's home 

page is: http://www.courts.state.nh.us/supreme.

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.
2

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. 
3

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 
4

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 
5

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 —
6

“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.