2007-667, STATE OF NH v. GRAHAM JENSEN

The defendant, Graham Jensen, was convicted of theft of

brief and orally), for the defendant. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

general, orally), for the State. memorandum of law, and Susan P. McGinnis, senior assistant attorney Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the

to press. Errors may be reported by E-mail at the following address: Opinion Issued: November 21, 2008

No. 2007-667 editorial errors in order that corrections may be made before the opinion goes Rochester District Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as he had purchased. He argues that because he had a valid contract with the

p. 2 the due payment.” tokens were no longer an accepted form of payment for toll roads.

the State stopped accepting tokens, the defendant had not used all the tokens cannot lawfully expire. the mental state necessary for theft; and (3) the tokens are gift certificates and The defendant focuses his three arguments upon whether he intended to “avoid Turnpike is a service pursuant to RSA 637:8, I, which requires compensation. of January 1, 2006.” Laws 2005, 177:54, III. Hence, as of January 1, 2006, transportation services . . . .” There is no dispute that the use of the Spaulding

The defendant purchased tokens prior to September 1, 2005. At the time

attendant with the intent to pay the toll, and, therefore, the State cannot prove uncontroverted that the defendant knew that tokens were no longer accepted, the outside of the booth door indicated this change. Even though it is turnpike system on September 1, 2005 and shall cease collecting all tokens as necessarily limited to, labor, professional service, public utility and shall cease selling tokens on all of the turnpikes in the New Hampshire 2005, 177:54, I, the legislature passed the following law: “The commissioner attempt to implement a regional electronic toll collection system, see Laws rate to be used for tolls. See RSA 237:11, V (1993) (amended 2005). In an the State. Prior to September 1, 2005, the State sold tokens at a discounted We first address the defendant’s argument that he had a contract with

accept the tokens as payment for use of the road; (2) he gave the tokens to the longer an accepted form of payment for the use of toll roads; a sign posted on

III further provides: “As used in this section, ‘services’ includes, but is not or any other means designed to avoid the due payment therefor.” RSA 637:8, guilty of a class B misdemeanor. which he knows are available only for compensation by deception, threat, force, the defendant a court summons. After a bench trial, the trial court found him RSA 637:8, I, provides: “A person commits theft if he obtains services The defendant complied, but refused to pay the toll. The police officer issued

arguments: (1) he had a contract with the State which obligated the State to services because he paid the toll with tokens. Specifically, he advances three that he could not pay with tokens. As of January 1, 2006, tokens were no On appeal, the defendant argues that he cannot be guilty of theft of stop, and the defendant complied. The attendant explained to the defendant tokens, he attempted to drive away. The attendant yelled for the defendant to

the parking lot to speak with the toll station supervisor and a police officer. he insisted upon paying with tokens. The attendant asked him to drive into

value of fifty cents. After the defendant handed the toll booth operator two was a fifty cent toll and at the time tokens were accepted, two tokens had the the eyes of the law.”

p. 3 of fact, viewing all of the evidence and all reasonable inferences from it in the

Williston, the sufficiency of the evidence, the defendant must prove that no rational trier the toll with tokens, he did not act purposely. “To prevail upon his challenge to requisite mental state. The defendant argues that because he attempted to pay

upon which the contract is based.” 17A Am. Jur. 2d statute does not specifically so provide or by its terms prohibit the act or acts

courage and society may ultimately benefit. But if the law being violated is accident or negligence, public policy will not allow coverage under the contract unconstitutional. “Civil disobedience can be an act of great religious and moral disobedience is without merit, as he is not claiming that RSA 637:8, I, is subsequent performance of such acts is against public policy . . . .” 8 S.

contract claim is a civil action and not violation of the Criminal Code. liability provided he violated RSA 637:8, I. The defendant’s remedy for any We next address whether the evidence was sufficient to prove the defendant’s argument that he had a contract is insufficient to prevent criminal 2005). law”); United States v. Platte, 401 F.3d 1176, 1181 (10th Cir. void, a contract in violation of a criminal statute is invalid, even though the

unintended or unexpected injuries or losses occur as a result, whether by Any argument the defendant has regarding his act being an act of civil prescribed in the contract by one of the parties has become illegal, any legal, but because of . . . a change in the law, performance of the acts as a shield to prevent criminal liability. “[W]here the contract was originally

706 (Mass. 1976) (illegality is a defense to breach of contract). Thus, the Town Plan. & Eng. Assoc., Inc. v. Amesbury Spec. Co., Inc., 342 N.E.2d (1982) (“illegal promises will not be enforced in cases controlled by the federal is manifest that it was not the intention of the legislature to make the contract Id.; see also Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 77

insured commits a criminal act, with respect to a . . . controlled substance, and Greenfield, 855 A.2d at 866. Greenfield held that, “in situations when an wrongful death action because the death was a result of the sale of heroin. 2004), an insurance company was not required to defend the homeowner in a the State, it is against public policy to allow the defendant to use the contract For example, in Minnesota Fire and Cas. Co. v. Greenfield, 855 A.2d 854 (Pa.

civil disobedience.

contract results in violation of a criminal law, that contract is void. “Unless it

Contracts § 19:35 (4th ed. 1998). Generally, where enforcing a

Assuming without deciding that the defendant had a valid contract with

argument, the defendant argued his attempt to use the tokens was an act of State, the State must continue to accept tokens or buy them back. At oral promise” is on the token packaging material, which contains the following

p. 4 purchasers which contain expiration dates.” The defendant argues the “written

of services. evidence that the defendant had the requisite mental state to be guilty of theft and therefore acted purposely to “avoid due payment.” There was sufficient unlawful to “[s]ell[] gift certificates having a face value of $100 or less to specified amount.” RSA 358-A:2, XIII (Supp. 2008) further provides that it is for payment to provide the bearer, upon presentation, goods or services in a

considerations for punishing the conduct in question.” that the defendant offered the tokens, knowing that they were not accepted,

(Supp. 2008) defines “gift certificate” as “a written promise given in exchange knew that the tokens were no longer accepted.

state which is appropriate in light of the nature of the offense and the policy toll with tokens which he knew were no longer accepted. The evidence showed mental state, we read RSA 626:2, I, as requiring proof of a culpable mental specify a mental state. “When a criminal statute does not provide for a specific requires evidence sufficient to show the defendant acted purposely. the Consumer Protection Act, in support of this argument. RSA 358-A:1, IV-a tokens were going to be expiring.” On cross-examination, he admitted that he certificates. The defendant points to RSA chapter 358-A (1995 & Supp. 2008), Finally, we address the defendant’s argument that the tokens are gift element of the offense.”).

The defendant testified, in effect, that his conscious object was to pay the

means designed to avoid the due payment therefor.” RSA 637:8, I, does not services, we will assume, as the defendant argues, that theft of services

payment.” The defendant, however, testified: “I have been aware that the tokens.” He further testified: “I firmly believe that this is a valid form of recklessly or negligently, as the law may require, with respect to each material At trial, the defendant testified that he “paid the toll” in that he “gave the

cause the result or engage in the conduct that comprises the element.”). respect to a material element of an offense when his conscious object is to culpable mental state); RSA 626:2, II(a) (2007) (“A person acts purposely with v. Sharon, 136 N.H. 764, 765 (1993) (purposely is the highest degree of

obtains services which he knows are available only for compensation by . . . Although we have not previously determined the mental state for theft of

of murder, a felony, or a misdemeanor only if he acts purposely, knowingly, Ercolino, 149 N.H. 336, 338 (2003); see RSA 626:2, I (2007) (“A person is guilty

RSA 637:8, I, states that a person is guilty of theft of services “if he

doubt.” State v. MacDonald, 1 p. 5 56 N.H. 803, 804 (2008). light most favorable to the State, could have found guilt beyond a reasonable 5

violation, the defendant’s remedy is pursuant to the Consumer Protection Act, decision to stop the use of tokens resulted in a Consumer Protection Act

an expiration date when he purchased them. Furthermore, if the legislature’s

whole.

the tokens and therefore there is no evidence that the defendant’s tokens had tokens. The defendant testified that he was unsure as to when he purchased contain expiration dates.” The legislature passed a law prohibiting the use of BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

legislative intent as expressed in the words of the statute considered as a see RSA 3 p. 5 58-A:10 (1995), and not to violate the criminal law.

language creates a gift certificate for less than $100.

RSA 3 p. 5 58-A:2, XIII states that it is unlawful to “[s]ell[] gift certificates . . . which Id. Assuming the tokens are written promises pursuant to RSA 358-A:1, IV-a, of the statute and ascribe the plain and ordinary meaning to the words used. State v. Polk, 155 N.H. 585, 587 (2007). We first examine the language

In matters of statutory interpretation, we are the final arbiter of the

restricted to two-axle, two and four-tired vehicles.” The defendant argues this language: “fare value, 2 p. 5 5 cents. Not redeemable for cash. Use of tokens