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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 ___________________________ Lebanon District Court No. 2007-866 THE STATE OF NEW HAMPSHIRE v. PAUL FORMELLA Argued: October 22, 2008 Opinion Issued: November 21, 2008 Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the brief and orally), for the State. Green & Utter, P.A., of Manchester (Philip H. Utter on the brief and orally), for the defendant. GALWAY, J. The defendant, Paul Formella, appeals his conviction following a bench trial in the Lebanon District Court (Cirone, J.) for criminal liability for the conduct of another. See RSA 626:8 (2007). We affirm. The relevant facts are not in dispute. On the afternoon of Wednesday, June 13, 2007, the defendant, then a junior at Hanover High School, and two friends, were studying at the Howe Library near the school. Wednesdays were typically early release days at the school, and students had been dismissed at 2:00 p.m. After studying for approximately two hours, the defendant and his friends returned to the school to retrieve some books from their second-floor lockers. Upon entering the school, they encountered another group of students

who said they intended to steal mathematics exams from the third floor. The defendant and his companions were asked to serve as lookouts during the theft, which they agreed to do. They were instructed to yell something like "did you get your math book?" up to the third floor as a code to alert the thieves if someone was coming. The defendant and his friends then proceeded to their second-floor lockers. The defendant testified that on their way to their lockers they looked around to "confirm or dispel" whether anyone was there. Once the defendant and his friends had retrieved their books, they "were all feeling like this was the wrong thing to do," and decided to head back down to the first floor to wait for the other group. On their way down the stairs, they encountered some janitors who told them that they ought to leave the school. The defendant and his friends left the school building, but waited in the parking lot for approximately five to ten minutes for the other group. Eventually, the other students exited the school with the stolen examinations and all of the students shared the exam questions. The next week, someone informed the dean of students that some students had stolen the exams. The police were called, and in connection with their investigation they interviewed the defendant, who admitted his involvement in the theft. He was later charged with criminal liability for conduct of another. See RSA 626:8. Following his conviction, the defendant appealed to this court. On appeal, the defendant raises two interrelated arguments. He first contends that the trial court erred in failing to make findings of fact relative to the timing of his withdrawal from the theft and the completion of the theft because, he argues, without such findings the trial court could not properly apply RSA 626:8. Additionally, he argues that the trial court erred in denying his motion to dismiss at the close of the State's case because the evidence was insufficient to find him guilty beyond a reasonable doubt. Before addressing the defendant's specific arguments, we must construe RSA 626:8. In 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. State v. Drake, 155 N.H. 169, 174 (2007). When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used. Id. We construe provisions of the Criminal Code according to the fair import of their terms and to promote justice. See RSA 625:3 (2007); Petition of State of N.H., 152 N.H. 185, 187 (2005). In doing so, we must first look to the plain language of the statute to determine legislative intent. Petition of State of N.H., 152 N.H. at 187. Absent an ambiguity we will not look beyond the language of the statute to discern legislative intent. State v. Stewart, 155 N.H. 212, 218 (2007).

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RSA 626:8 provides, in relevant part, that an individual is criminally liable for the conduct of another when he acts as an accomplice in the commission of an offense. RSA 626:8, II(c). A person is an accomplice when with the purpose of promoting or facilitating the commission of an offense, he aids or agrees or attempts to aid another person in planning or committing the offense. RSA 626:8, III(a). RSA 626:8 further provides, however, that a person is not an accomplice if he "terminates his complicity prior to the commission of the offense and wholly deprives it of effectiveness in the commission of the offense or gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense." RSA 626:8, VI(c). The defendant does not dispute that he became an accomplice in the first instance when he agreed to act as a lookout. See State v. Merritt, 143 N.H. 714, 718 (1999) (noting that a defendant's presence at the scene of the crime may be sufficient for accomplice liability if it was intended to, and does, aid the primary actor). Accordingly, we are concerned only with whether the defendant's later acts terminated his liability as an accomplice. We note that the defendant does not contend that he gave timely warning to law enforcement or otherwise made "proper effort" to prevent the offense. See RSA 626:8, VI(c). Thus, under RSA 626:8, VI(c) the defendant was not an accomplice if: (1) he terminated his complicity in the crime; (2) his termination occurred prior to the commission of the offense; and (3) he wholly deprived his complicity of effectiveness in the commission of the offense. We conclude that the statute is ambiguous. As regards the third factor, for example, the statute does not define what is required for a person to "wholly deprive" his complicity of effectiveness in the commission of an offense. According to the State, an overt act aimed at undermining the prior complicity is required, while the defendant argues that, at least in this case, no such act is necessary. As the statute does not clarify whether such an act is necessary, we conclude that it is ambiguous, and we look to other sources to determine legislative intent. RSA 626:8, like much of our criminal law, is based upon the Model Penal Code. See 2 W. LaFave, Substantive Criminal Law

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