State v. Harper

The Facts

The defendant, Patricia Harper, committed theft by unauthorized taking. Previously she has already been two times convicted of  the same crime.

Procedural History

The court affirmed ruling that denied defendant’s motions to exclude evidence of certain prior convictions as the basis for charging her with the Class B felony of theft.


The acts which are defined as theft and listed in N.H. Rev. Stat. Ann. § 637:1 are not exhaustive enumeration of offenses but illustrative ones. The enlisted acts are known as larceny, larceny by trick, embezzlement, false pretense, extortion, blackmail, and receiving stolen property.  N.H. Rev. Stat. Ann. § 637:1. is consistent with the broad statutory definition of “theft”.

Any act or omission constituting a substantial step toward the commission of the crime is enough to trigger the attempt statute.  [N.H. Rev. Stat. Ann. § 629:1 (1974 and Supp. 1983)].

New Hampshire does not follow the common law rule that criminal statutes are to be strictly construed. [N.H. Rev. Stat. Ann. § 625:3].

The Issue

Whether three prior offenses were thefts under the penalty section of N.H. Rev. Stat. Ann. § 637:11, II(b) (Supp. 1983).

The Holding/Reasoning

The Supreme Court of New Hampshire affirmed the denial of her motions and concluded that the attempted act was correctly evaluated as a theft taking into account prior convictions under the penalty enhancement provisions of § 637:11, II(b). The court did further also rebutted defendant’s contention as to her shoplifting conviction under N.H. Rev. Stat. Ann. § 644:17 and admitted the sentence enhancement. According to the court “shoplifting was sufficiently similar to theft to enable the prior shoplifting conviction to be regarded as a conviction for theft, which could be used for enhancement… [D]efendant had not met her burden going forward with evidence of lack of a knowing and intelligent waiver of her constitutional rights.”

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