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

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district

Nos. 2018-0708

2018-0710

THE STATE OF NEW HAMPSHIRE

v.

JAMES FOLLEY

THE STATE OF NEW HAMPSHIRE

v.

KAREN FOLLEY

Submitted: November 20, 2019

Opinion Issued: January 10, 2020 

Gordon J. MacDonald, attorney general (Bryan J. Townsend, II, assistant 

attorney general, on the brief), for the State.

Law Office of Shepherd & Osborne, of Nashua (Justin C. Shepherd on 

the brief), for James Folley.

Law Office of Michael J. Zaino, PLLC, of Hampton (Michael J. Zaino on 

the brief), for Karen Folley.
2

DONOVAN, J. The defendants, James Folley and his wife, Karen Folley, 

appeal their convictions following a joint jury trial in the Superior Court 

(Abramson, J.) on two counts of theft by unauthorized taking as a principal or 

accomplice, see RSA 637:3 (2016); RSA 626:8 (2016), and, as to James, an 

additional count of financial exploitation of an elderly adult, see RSA 631:9 

(Supp. 2018).

1 They also appeal the trial court’s restitution order requiring

that they pay restitution to an assisted living facility where the victim resided 

at the time of the crimes. They argue that: (1) the evidence was insufficient to 

support their convictions; and (2) the trial court erred by ordering them to pay 

restitution to the facility because it is not entitled to compensation under RSA 

651:62 (2016). We affirm the defendants’ convictions but reverse the 

restitution order because the economic loss claimed by the facility was not a 

direct result of the defendants’ criminal conduct. See RSA 651:62, III.

I. Facts

The jury could have found the following facts based upon the evidence at 

trial and the reasonable inferences drawn therefrom. In 2006, James’ elderly 

sister, the victim, executed a durable power of attorney agreement which

prospectively authorized James to act as her attorney-in-fact on financial 

decisions in the event she became unable to make decisions for herself.

Thereafter, she moved into an assisted living facility. At this time, the victim 

had been diagnosed with Parkinson’s disease but had no mobility or memory

issues.

Until 2011, the victim had sole control over her finances and paid her 

bills independently. She did not have a debit card and instead paid her bills by 

check. The majority of the victim’s spending was on housing and medical 

expenses. She also made small expenditures on retail purchases, which 

consisted mostly of purchases from a gift basket company, and contributed a 

small amount to charities. On September 28, 2011, the victim added James as 

a co-owner of her bank account.

In October 2011, when the victim was 77 years old, she moved to 

another assisted living facility. In her application for admission, she listed

assets of $170,000, monthly Social Security and pension income of 

approximately $1,923, and monthly expenses of approximately $346. When 

she applied, the facility staff informed her that she was expected to make her 

assets available for costs associated with living there. During this period of

time, neither defendant worked due to health problems.

 

1 Although the record demonstrates that James was convicted of a third count of theft by 

unauthorized taking, he makes no argument challenging this conviction, so we do not address it.
3

The victim moved into a small one-room unit at the facility, at a cost of

$4,000 per month, which did not have a kitchen or other amenities. The victim 

did not drive and could not prepare meals without assistance, and thus relied 

upon the facility to provide her meals, transportation, and entertainment. She 

spent her time reading, playing games, and watching television, and she

continued to pay for housing and medical expenses by check. She rarely made 

retail purchases, and when she did, they consisted of used books and 

sneakers. When the defendants visited the victim, they brought her personal

necessities.

Within weeks of being added as a co-owner of the victim’s bank account, 

James obtained a debit card associated with the account. The defendants used 

the debit card in November 2011 to make a $600 ATM withdrawal. On the 

same day, $700 was deposited into the defendants’ bank account. Between 

November and December 2011, they also used the debit card to pay for 

purchases at retail stores totaling approximately $89.

For several months, there were no debit card expenditures from the 

victim’s account. However, in April 2012, James changed the address on the 

victim’s bank account to his own address. Then, in August, when the victim 

had nearly $140,000 in her account, the defendants engaged in an “explosion 

in spending” that was “uncharacteristic” of the victim’s spending patterns,

consisting of debit card purchases and cash withdrawals from the victim’s 

bank account. This spike in spending occurred shortly after the victim had 

visited her doctor on August 7 to assess concerns about her increased mobility 

challenges, frequent falls, and decline in short-term memory, which are 

symptoms associated with Parkinson’s disease.

Between August 2012 and September 2013, the defendants used the 

debit card to purchase thousands of dollars of retail items from local and 

online stores and to conduct thousands of dollars in ATM withdrawals. These 

purchases included cookware, pet supplies, groceries, car parts, toys, airplane 

tickets, and cigarettes. The large majority of items purchased from online 

retailers — 90 of 93 items purchased from one retailer — were shipped to 

Karen at the defendants’ address. They also used funds to pay for household 

and personal expenses, such as cable, heating, and mobile phone expenses. 

The defendants made numerous cash withdrawals from the victim’s 

account, often withdrawing hundreds of dollars at a time. These withdrawals 

frequently occurred shortly before the defendants deposited similar amounts of 

money in their own bank account. Prior to this period, the defendants rarely 

made such large deposits. In March 2013, James withdrew $50,000 from the 

victim’s account and deposited $47,500 into the defendants’ bank accounts

and retained the remaining $2,500 in cash. By August 2013, the victim had 

only $1,342 in her account.
4

In July 2013, the facility moved the victim into its memory care unit as a 

result of her frequent falls and increasing memory issues. During this time

frame, James began exercising control over the victim’s finances under his

power of attorney. Due to the defendants’ concern about the victim’s financial 

situation, the facility agreed to reduce the cost of the victim’s room from $5,400 

per month to $3,500 per month. Although the defendants deposited $5,000 

into her account in September 2013 and $500 in May 2014, they continued to 

use funds from her account. Between October 2013 and November 2014, the 

defendants made an additional withdrawal, with a corresponding deposit into 

their account, and debit card purchases, totaling $3,080.

In February 2014, James informed the facility that the victim’s funds 

had been depleted. Because the facility did not “want[] to see [the victim] go,” it 

asked James for an amount the victim could reasonably afford to pay. James 

informed the facility the victim could pay $1,860 per month, based upon her 

monthly Social Security and pension income, which the facility accepted. In 

March and September 2015, James made two withdrawals of $812 and $425

respectively, which were deposited into the defendants’ checking account.

In April 2015, James applied for Medicaid for the victim through the New 

Hampshire Department of Health and Human Services (DHHS), with the intent 

of moving her into a nursing care facility that accepted Medicaid. As part of 

the application process, a DHHS staff member met with the defendants. The

staff member informed them that DHHS would review the victim’s financial 

history for the last five years (lookback period) and asked whether any “red 

flag[s]” would appear. The defendants informed DHHS that its review would 

reveal a $50,000 gift from the victim, which James described as an 

“inheritance,” but that the transaction occurred prior to the lookback period.

When DHHS conducted its review, it noticed the high rates of debit card 

spending and withdrawals beginning in August 2012 that seemed 

uncharacteristic of the victim’s previous financial activity. DHHS provided the 

defendants with a list of transactions it considered to be “questionable” and 

requested additional information within 10 days. James sent an e-mail to 

DHHS, remarking on the number of questions DHHS asked the defendants to 

answer and noting that the victim handled the money herself until he “took 

over” in August 2013. After receiving an extension, James explained 

withdrawals and purchases in mostly general terms, providing only a few 

specific explanations for certain transactions. He represented that the 

defendants had made cash withdrawals at the victim’s request to give as gifts 

to the victim’s stepchildren and step-grandchildren; that they made grocery 

store purchases of fruits and candy for “huge” gift baskets that the victim gave 

to the facility staff; that Karen purchased items to decorate the victim’s room at 

the facility; that the victim wanted “other things” that the facility did not 

provide for her; and that the victim purchased satellite cable for the defendants
5

as a Christmas gift. James acknowledged purchases of car parts, but stated 

only that he “used the debit card,” noting that it was “in both names.”

DHHS denied the application due, in part, to the defendants’ failure to 

provide sufficient information about the questionable transactions. Following 

the denial, James represented to DHHS that he had not received the lookback 

logs. Subsequently, DHHS sent the defendants a packet containing them. The 

defendants thereafter provided DHHS with transaction-by-transaction

explanations for the items listed on the log, but many of their explanations 

were similar to James’ previous representations and did not identify specific 

items purchased or describe how withdrawn cash was used.

2 Eventually, 

DHHS declined to reopen the application.

In January 2016, an investigator with the New Hampshire Bureau of 

Elderly and Adult Services (BEAS) met with the defendants after receiving a 

report that they may have financially exploited the victim. The defendants told 

the investigator that, once the victim moved into the facility, they met with her 

once a month to review her finances and ensure that she paid her bills, but 

that they had had “no real awareness” of her finances until August 2013. 

When asked, they admitted that they occasionally used some of her money, but 

not on a routine basis. James stated that the victim asked him to take her to 

the bank, initiated a transaction, and gave him a cashier’s check for $50,000 

as an inheritance, which he used to finish building his automotive garage. At 

the time the investigator met with the defendants, the garage had a full stock of 

tools and parts, a hydraulic car lift, and two “hot rod” cars. The investigator 

then met with the defendants a second time. When questioned about specific 

transactions from the victim’s bank records, they provided vague explanations 

that withdrawals and purchases were conducted by the victim or at the victim’s 

direction for gifts and various items for herself.

In April 2016, the victim revoked James’ power of attorney. She resided 

at the facility until her death in 2017. That year, the defendants were each 

indicted on two counts of theft by unauthorized taking, with one count 

pertaining to ATM withdrawals between November 2011 and August 2014 and 

the other count pertaining to debit card purchases between those same dates. 

James was also indicted on an additional count of theft by unauthorized taking 

for the $50,000 withdrawal in March 2013, and one count of financial 

exploitation of an elderly adult for two ATM withdrawals that occurred between 

March and September 2015. Following a joint jury trial, the jury convicted the 

defendants on each indictment. As part of their sentence, the State requested 

that the defendants pay restitution to the facility, in an amount consisting of 

the difference between the monthly cost of $3,500 that the facility had been 

charging the victim and the reduced amount that it agreed to charge. The trial 

 

2 For example, to explain cash withdrawals of $60, $200, and $800, they simply stated, “cash for 

her.” To explain a $59 purchase, they stated that they “took her for things.” 
6

court granted this request. Each defendant has appealed, and we have

consolidated the cases.

II. Analysis

A. Sufficiency of the Evidence

We first address the defendants’ challenges to the sufficiency of the 

evidence. A challenge to the sufficiency of the evidence raises a claim of legal 

error; therefore, our standard of review is de novo. State v. Leith, 172 N.H. 1, 

11 (2019). When considering such a challenge, we objectively review the entire

record, including any evidence presented by the defendant, to determine 

whether any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt, considering all the evidence and all 

reasonable inferences drawn therefrom in the light most favorable to the State. 

State v. Saintil-Brown, 172 N.H. 110, 117 (2019). We examine each evidentiary 

item in the context of all the evidence, and not in isolation. Id.

The defendants have the burden of demonstrating that the evidence was 

insufficient to prove guilt. Id. When the proof involves both direct and 

circumstantial evidence, we apply the standard set forth above and uphold a 

jury’s verdict unless no rational trier of fact could have found guilt beyond a 

reasonable doubt. State v. Woodbury, 172 N.H. 358, 363 (2019). However, we 

apply a different standard when the evidence is solely circumstantial. Id. 

Under these circumstances, a defendant challenging sufficiency must establish 

that the evidence does not exclude all reasonable conclusions except guilt. 

Saintil-Brown, 172 N.H. at 117. The proper analysis is not whether every 

possible conclusion consistent with innocence has been excluded, but, rather, 

whether all reasonable conclusions other than guilt have been excluded. Id.

1. Theft by Unauthorized Taking

The defendants first argue that the State introduced insufficient evidence 

to convict them of the two counts of theft by unauthorized taking pertaining to 

the ATM withdrawals and purchases. A person is guilty of the crime of theft by 

unauthorized taking if he or she “obtains or exercises unauthorized control 

over the property of another with a purpose to deprive him thereof.” RSA 

637:3, I. Thus, the State was required to prove that the defendants (1) 

obtained or exercised unauthorized control over (2) the property of another (3) 

with the purpose to deprive the other of the property. State v. Gagne, 165 N.H. 

363, 368 (2013).

The defendants argue that the State failed to introduce sufficient 

evidence to prove the elements of unauthorized control and property of 

another. However, as to the element of property of another, the defendants do 

not dispute that the money in the bank account belonged to the victim. 

Instead, they rely upon our decision in Gagne, in which we concluded that, 
7

where a defendant is a co-owner of a joint bank account, the State must prove 

that the “arrangement does not provide [the defendant] with a privilege to take 

funds from the account in the circumstances under which the [defendant] 

withdrew them” to meet the element of property of another. Id. at 371-72; see

RSA 637:2, IV (2016) (defining “property 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”). Based upon James’ status as co-owner of the 

joint bank account, the defendants argue that, to prove this element, the State 

was required, and failed, to introduce sufficient evidence to prove that the 

defendants did not have the privilege — in the form of authorization from the 

victim — to withdraw and spend the funds in the account. See Gagne, 165 

N.H. at 372. Thus, the defendants present the same challenge to both 

elements — that the State introduced insufficient evidence to prove that they

withdrew and spent the victim’s money without authorization.

We agree with the defendants that the State did not introduce direct 

evidence that they lacked authorization to spend or withdraw the victim’s 

money. However, we disagree with their assertion that the State was required

to introduce direct evidence, in the form of the victim’s testimony, to meet its 

burden of proof. We have held that, to prove lack of authorization,

circumstantial evidence is sufficient. See State v. Flynn, 144 N.H. 567, 570-71 

(1999) (concluding that, where the owner of the stolen item did not testify, 

circumstantial evidence was sufficient to prove lack of permission); see also

State v. Blow, 135 N.H. 640, 641-42 (1992) (concluding that circumstantial 

evidence was sufficient to prove lack of license or privilege to enter a building). 

Accordingly, we review the circumstantial evidence to determine whether it was 

sufficient to exclude all reasonable conclusions other than the conclusion that 

the defendants did not have authorization to withdraw or spend the victim’s 

money. See Saintil-Brown, 172 N.H. at 117.

Viewed in the light most favorable to the State, we conclude that there 

was sufficient circumstantial evidence to exclude all other reasonable 

conclusions. The jury heard evidence of the victim’s consistent and frugal 

spending habits, which consisted almost entirely of housing and medical

expenditures, and that she had previously given only small donations to 

charity and spent a modest amount of money at a gift basket retailer. The jury 

also heard evidence that the cost of the victim’s living arrangements exceeded 

her monthly income and that the facility informed her before her admission 

that it expected her to make her assets available to fund her residence there,

giving rise to the inference that the victim understood the need to reserve her 

assets to pay for her living arrangements. The jury then heard evidence 

demonstrating that the defendants’ use of the victim’s money was entirely 

inconsistent with the victim’s spending habits and her need to conserve her 

assets: the defendants spent thousands of dollars on numerous and 

unnecessary retail items, which could not be used at an assisted living facility 
8

by a resident who was unable to cook or perform other basic tasks on her own, 

and withdrew or spent nearly all of her money, other than the money used to 

pay for rent or medical expenses, within a single year. These facts negate any 

reasonable conclusion that the victim authorized the defendants to make these 

expenditures.

Moreover, the defendants’ out-of-court statements provided evidence of 

their consciousness of guilt. The defendants initially attempted to distance 

themselves from the matter by representing that they had no involvement in 

the victim’s finances until August 2013, despite their claim that they reviewed 

the victim’s monthly bank statements with her after she moved into the facility 

in 2011. Then, when confronted with specific transactions by DHHS and the 

BEAS investigator, they contended that the thousands of dollars in cash 

withdrawals and purchases were made at the victim’s direction to use for 

herself or as gifts for facility staff and her family.

These explanations, however, squarely contradicted the records of these 

purchases, including the items listed on receipts, the delivery address of online

purchases, and the bank records suggesting that the defendants deposited 

withdrawn cash from the victim’s account into their own accounts. The 

defendants’ explanations of other transactions were inconsistent with the 

victim’s medical records. For example, on at least two occasions when the 

defendants claimed they took the victim shopping, she had been admitted to 

the hospital for a head injury or had a significant mobility incident at the 

facility. Further, the explanations contradicted witness testimony, including 

testimony from the victim’s stepchildren, that the victim never gave them or 

their children cash or gifts during this period other than holiday cards and an 

occasional baked good, and testimony from the facility director that the victim 

never gave staff any gifts, and that such gift-giving violated the facility’s policy.

Moreover, other circumstantial evidence provided the reasonable 

inference that the defendants took advantage of the victim’s health issues to 

conceal their activity from her. Specifically, the jury heard evidence that, a few 

months after the victim added James’ name to her account, he changed the 

address on the account because of the victim’s memory issues. The jury also 

heard evidence that the victim had visited the doctor due to mobility and 

cognitive issues shortly before the defendants’ spending spree began, and 

testimony from the defendants demonstrating their awareness of and 

involvement in the victim’s healthcare. Viewing all of this evidence together, 

the circumstantial evidence excludes any reasonable conclusion other than the 

conclusion that the defendants lacked authorization to make the withdrawals 

and purchases.

The defendants argue that the evidence at trial gave rise to an 

alternative, reasonable conclusion consistent with innocence: that the victim 

authorized the defendants to use the money because she wanted to repay them 
9

for all that they had done for her and help them “in their time of need.” This 

conclusion would require the jury to have credited the defendants’ testimony.

However, in a sufficiency challenge, where we consider all the evidence and 

reasonable inferences therefrom in the light most favorable to the State, we 

“assume[] the jury made all factual findings and credibility determinations 

necessary to support its verdict.” State v. Saunders, 164 N.H. 342, 351-52 

(2012) (emphasis omitted); see also Woodbury, 172 N.H. at 364 (“[M]atters such 

as weighing evidence, determining witness credibility, and resolving conflicts in 

witness testimony are left to the jury.”). Here, “assuming all credibility 

resolutions in favor of the State,” we conclude that the alternative explanation

suggested by the defendants cannot be reasonably drawn from the evidence 

presented at trial. Saunders, 164 N.H. at 351. Indeed, this alternative 

conclusion would require the fact finder to conclude that the victim, who 

needed to conserve her assets to pay for her living arrangements and medical 

expenses for the foreseeable future, willingly depleted those assets by gifting 

the defendants tens of thousands of dollars for the purpose of helping them 

during a time of financial hardship. Based upon the evidence, such a 

conclusion is not reasonable.

2. Financial Exploitation of an Elderly Adult

James also challenges the sufficiency of the evidence used to convict him 

of financial exploitation of an elderly adult for making two withdrawals from 

the victim’s account under the power of attorney. In challenging the sufficiency 

of the evidence of this offense, James relies upon the same argument he 

proffers in challenging his convictions for theft by unauthorized taking — that 

the State failed to introduce direct evidence, in the form of the victim’s 

testimony, to prove that his act of withdrawing funds from the victim’s account 

was unauthorized. However, to prove the crime of financial exploitation of an 

elderly adult, the State was not required to prove that James took funds 

without authorization from the victim; it was required to prove that James took 

funds, in breach of a fiduciary duty, without authorization from the instrument

establishing that fiduciary duty — the power of attorney. See RSA 631:9, 

I(a)(2).

As an initial matter, we note that the power of attorney itself does not 

appear in the record before us. Accordingly, we rely upon the portions of the 

power of attorney that were read into the record by a witness at trial. 

According to the power of attorney, James had the authority to make decisions 

regarding the victim’s money and spend the money on her behalf. However, it 

placed James under a fiduciary duty to make such financial decisions in a way 

that is “reasonable in view of the interests of the [victim] and in view of the way 

in which a person of ordinary judgment would act in carrying out that person’s 

own affairs.” Further, the power of attorney prohibited James from “us[ing] the 

money or property for [his] own benefit or to make gifts to [him]self or others.”
10

The State did not introduce direct evidence to demonstrate that James 

conducted the two withdrawals for his own benefit rather than for the benefit of 

the victim. However, we conclude that the State introduced sufficient 

circumstantial evidence to exclude all reasonable conclusions to the contrary. 

The evidence presented at trial establishes that James withdrew $812 on 

March 4, 2015, and $425 on September 21, and that there was a 

corresponding deposit into the defendants’ checking account. The evidence 

also shows that these withdrawals occurred well after the defendants depleted 

nearly all of the victim’s funds. This evidence, viewed together with the 

evidence that the defendants typically did not deposit large sums of cash in 

their own accounts prior to November 2011, was sufficient to exclude any 

reasonable conclusion except that James withdrew the money for his own 

benefit, which was not reasonable in view of the interests of the victim. 

Therefore, the State introduced sufficient evidence to prove that James was not 

authorized by the power of attorney to make the two withdrawals.

B. Restitution

The defendants next challenge the trial court’s restitution order. “Any 

offender may be sentenced to make restitution in an amount determined by the 

court.” RSA 651:63, I (Supp. 2018). Determining the appropriate restitution 

amount under RSA 651:63, I, is within the discretion of the trial court. State v. 

Schwartz, 160 N.H. 68, 71 (2010). If the factual basis for restitution is 

disputed, however, 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. In reviewing the trial court’s ruling, 

we accept its factual findings unless they lack support in the record or are 

clearly erroneous. Id. Our review of the trial court’s legal conclusions is de

novo. Id.

The trial court ordered James to pay $81,890.83 in restitution to the 

facility, based upon the total amount of money, according to the State, that the 

facility “would have” received if it had continued to charge the victim $3,500 

per month rather than the reduced cost the facility agreed to accept. The trial 

court ordered Karen to share, jointly and severally, $44,293.27 of that 

obligation with James. The defendants argue that the facility is not entitled to 

receive restitution under RSA 651:63. Specifically, they argue that the facility 

is not a “victim” as defined by RSA 651:62, VI, because it did not suffer an 

economic loss as a result of the defendants’ conduct. See RSA 651:62, VI. The 

State argues that the facility suffered an economic loss — in the form of lost 

revenue — when it agreed to reduce the victim’s monthly rent due to her 

inability to pay the full $3,500 — an inability that resulted from the 

defendants’ conduct.

Resolution of this issue requires us to engage in statutory interpretation. 

Accordingly, our review is de novo. State v. Pinault, 168 N.H. 28, 31 (2015). In 
11

matters of statutory interpretation, we are the final arbiters of the legislature’s 

intent 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 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 statute defines “restitution” as “money or service provided by the 

offender to compensate a victim for economic loss.” RSA 651:62, V. Thus, a 

party must be a “victim” to receive compensation from an offender under the 

statute. See id. The statute defines “victim” as “a person or claimant who 

suffers economic loss as a result of an offender’s criminal conduct.” RSA 

651:62, VI. “Economic loss” is defined as “out-of-pocket losses or other 

expenses incurred as a direct result of a criminal offense.” RSA 651:62, III. 

Thus, for a party to fall within the definition of “victim,” the party must suffer 

an out-of-pocket loss or incur expenses as a direct result of a criminal offense. 

See id.

The phrase “direct result” is not defined in the statute or elsewhere in the 

Criminal Code. In State v. Armstrong, 151 N.H. 686 (2005), we declined to

adopt a test to “ascertain at what point an event is no longer a direct result of a 

crime.” Armstrong, 151 N.H. at 687-88 (holding that reasonable medical 

expenses to treat injuries suffered by a police officer when attempting to 

apprehend the defendant, who was convicted of the crime of escape, were a 

direct result of the escape). We simply noted “that a defendant may be held 

liable for economic losses directly resulting from the factual allegations that 

support the conduct covered by the conviction.” Id. at 687. Similarly, in 

Pinault, we also declined to adopt a test to determine “the outer limits of the 

connection that must exist” between the harm or loss and criminal conduct to 

support a restitution order, concluding that the damage at issue was not a 

result of the crime for which the defendant was convicted. Pinault, 168 N.H. at 

32-33 (holding that damage to a mailbox caused by the defendant’s vehicle was 

not the direct result of the defendant’s act of leaving the scene of the accident, 

the basis of her conviction). However, similar to our observation in Armstrong, 

we noted that the plain language of the statute “clearly and unambiguously 

requires a causal connection between the criminal act and the economic loss or 

damage.” Id. at 32.

As in Armstrong and Pinault, we need not adopt a test to determine the 

exact scope of the connection between the economic loss and criminal conduct 

required to support a restitution award, because the facts of this case 

demonstrate that any lost revenue incurred by the facility was not a direct

result of the defendants’ criminal acts. “Direct” is defined as “proceeding from 
12

one point to another in time or space without deviation or interruption” or 

“stemming immediately from a source.” Webster’s Third New International 

Dictionary 640 (unabridged ed. 2002). Here, the defendants were convicted of 

utilizing a debit card linked to the victim’s bank account to make unauthorized 

cash withdrawals and purchases for the purpose of depriving the victim of the 

money used in the withdrawals and purchases. See RSA 631:9; RSA 637:3, I. 

Based upon the plain language of the restitution statute, the economic loss 

directly resulting from this criminal conduct is the victim’s loss of her assets, 

not the revenue the facility could have generated if it did not decide to reduce 

the victim’s rent. Although the facility made this decision after learning of the 

victim’s financial situation, this decision was, at most, a collateral consequence 

of the defendants’ criminal conduct, which is not compensable under the 

restitution statute. See RSA 651:62, III, VI. Accordingly, we hold that the 

revenue the facility would have made if it had not decided to reduce the victim’s 

rent does not constitute an economic loss incurred as a direct result of the 

defendants’ criminal offense.

The State argues that our interpretation of the statute does not promote 

justice. It argues that parties like the facility, which suffered an economic loss 

because it “placed [the victim]’s needs first” by allowing her to stay at the 

facility at a reduced rate, should be entitled to compensation. We recognize 

that the facility agreed to accept less money from the victim so that she could

continue to reside there. However, we cannot ignore the plain language of the 

statute that limits the class of victims who may be compensated to those who 

suffer an economic loss as a direct result of a criminal offense. See RSA 

651:62, III. Were we to adopt the State’s interpretation of the statute, we would 

expand the class of victims that could be compensated far beyond that

intended by the legislature. We express no opinion as to whether the facility 

may have any other remedies available to recover the losses it alleges.

III. Conclusion

Because the State introduced sufficient circumstantial evidence to 

exclude all reasonable conclusions other than guilt, we affirm the defendants’ 

convictions. We reverse the trial court’s restitution award to the assisted living 

facility because any economic loss incurred by the facility was not a direct 

result of the defendants’ criminal conduct. Any issues that the defendants

raised in their notices of appeal, but did not brief, are deemed waived. State v. 

Bazinet, 170 N.H. 680, 688 (2018).

Affirmed in part and reversed in part.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.