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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 ___________________________ Rochester District Court No. 2007-667

THE STATE OF NEW HAMPSHIRE v. GRAHAM JENSEN Argued: October 22, 2008 Opinion Issued: November 21, 2008 Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the memorandum of law, and Susan P. McGinnis, senior assistant attorney general, orally), for the State. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the defendant. DUGGAN, J. The defendant, Graham Jensen, was convicted of theft of services, see RSA 637:8 (2007), following a bench trial in Rochester District Court (Ashley, J.). We affirm. The record reveals the following. On March 23, 2006, at approximately 2:00 p.m., the defendant was driving northbound on the Spaulding Turnpike and attempted to pay the Rochester toll with two tokens. The Rochester toll

was a fifty cent toll and at the time tokens were accepted, two tokens had the value of fifty cents. After the defendant handed the toll booth operator two tokens, he attempted to drive away. The attendant yelled for the defendant to stop, and the defendant complied. The attendant explained to the defendant that he could not pay with tokens. As of January 1, 2006, tokens were no longer an accepted form of payment for the use of toll roads; a sign posted on the outside of the booth door indicated this change. Even though it is uncontroverted that the defendant knew that tokens were no longer accepted, he insisted upon paying with tokens. The attendant asked him to drive into the parking lot to speak with the toll station supervisor and a police officer. The defendant complied, but refused to pay the toll. The police officer issued the defendant a court summons. After a bench trial, the trial court found him guilty of a class B misdemeanor. On appeal, the defendant argues that he cannot be guilty of theft of services because he paid the toll with tokens. Specifically, he advances three arguments: (1) he had a contract with the State which obligated the State to accept the tokens as payment for use of the road; (2) he gave the tokens to the attendant with the intent to pay the toll, and, therefore, the State cannot prove the mental state necessary for theft; and (3) the tokens are gift certificates and cannot lawfully expire. RSA 637:8, I, provides: "A person commits theft if he obtains services which he knows are available only for compensation by deception, threat, force, or any other means designed to avoid the due payment therefor." RSA 637:8, III further provides: "As used in this section, `services' includes, but is not necessarily limited to, labor, professional service, public utility and transportation services . . . ." There is no dispute that the use of the Spaulding Turnpike is a service pursuant to RSA 637:8, I, which requires compensation. The defendant focuses his three arguments upon whether he intended to "avoid the due payment." We first address the defendant's argument that he had a contract with the State. Prior to September 1, 2005, the State sold tokens at a discounted rate to be used for tolls. See RSA 237:11, V (1993) (amended 2005). In an attempt to implement a regional electronic toll collection system, see Laws 2005, 177:54, I, the legislature passed the following law: "The commissioner shall cease selling tokens on all of the turnpikes in the New Hampshire turnpike system on September 1, 2005 and shall cease collecting all tokens as of January 1, 2006." Laws 2005, 177:54, III. Hence, as of January 1, 2006, tokens were no longer an accepted form of payment for toll roads. The defendant purchased tokens prior to September 1, 2005. At the time the State stopped accepting tokens, the defendant had not used all the tokens he had purchased. He argues that because he had a valid contract with the

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State, the State must continue to accept tokens or buy them back. At oral argument, the defendant argued his attempt to use the tokens was an act of civil disobedience. Assuming without deciding that the defendant had a valid contract with the State, it is against public policy to allow the defendant to use the contract as a shield to prevent criminal liability. "[W]here the contract was originally legal, but because of . . . a change in the law, performance of the acts prescribed in the contract by one of the parties has become illegal, any subsequent performance of such acts is against public policy . . . ." 8 S. Williston, Contracts

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