State of New Hampshire v. Melanie Parry

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

___________________________

Grafton
No. 2019-0407
STATE OF NEW HAMPSHIRE

v.

MELANIE PARRY

Argued: October 20, 2020
Opinion Issued: January 27, 2021

Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

Gordon J. MacDonald, attorney general (Danielle H. Sakowski, senior
assistant attorney general, on the brief and orally), for the State.

DONOVAN, J. The defendant, Melanie Parry, appeals her conviction,
following a jury trial in the Superior Court (Bornstein, J.), on one count of
possession of a controlled drug. See RSA 318-B:2, I (2017). She argues that:
(1) the trial court erred by denying her requested jury instruction on the
voluntary-act requirement set forth in RSA 626:1 (2016); and (2) the
prosecutor’s statement during closing argument that voluntariness is not an
element of possession was contrary to the law. We affirm, concluding that a
voluntariness instruction is not necessary unless there is some evidence
suggesting that the defendant’s conduct was involuntary. We further conclude
that, because no such evidence was presented in this case, the defendant was
not entitled to an instruction on RSA 626:1 and the prosecutor’s statement was
not contrary to the law.
 I. Facts

The jury could have found the following facts. On the evening of August
18, 2015, the defendant was the front-seat passenger in a vehicle being
operated by another person. After observing the vehicle swerve in and out of
its lane, an officer with the Lebanon Police Department signaled the driver to
stop. Upon approaching the vehicle, the officer noticed an odor of marijuana
and observed that the driver appeared nervous. The officer also noted that
when he began questioning the vehicle’s occupants about the odor of
marijuana, the defendant immediately grabbed her purse, which had been
sitting next to her, “almost like hugging it in fear.” The officer then asked if he
could search the vehicle. The driver consented.

The officer also asked if he could search the defendant’s purse, believing
that it contained contraband. Initially, the defendant denied possessing any
illegal items in her purse, but she subsequently agreed to allow the officer to
search her purse. Inside the purse, the officer located a crack pipe, a
marijuana pipe, and two substances that the officer believed to be heroin and
crack cocaine. The defendant stated that she suffered from heroin addiction
and that the heroin-like substance belonged to her. The defendant did not
admit or deny ownership of the cocaine-like substance. Laboratory testing of
the substance believed to be heroin established that the substance was not, in
fact, heroin or any other controlled drug. However, laboratory testing revealed
the other substance to be crack cocaine. Consequently, the defendant was
charged with one count of possession of crack cocaine.

At trial, the defendant submitted, in her opening statement and closing
argument, that her possession of the crack cocaine was involuntary because it
was possible that the driver placed the contraband in her purse without her
consent moments before the stop. Based upon this argument, the defendant
requested that the trial court read the text of RSA 626:1 to the jury, which
requires a voluntary act for every criminal offense. The trial court denied the
request, explaining that “if the jury [finds] beyond a reasonable doubt the four
elements of the alleged offense as instructed, or as set forth in the instructions,
the jury will, under [RSA 626:1, II], necessarily have found that . . . such
possession was a voluntary act.”

During closing argument, defense counsel told the jury that “[p]ossession
has to be knowing and voluntary.” Defense counsel then attempted to link the
voluntary-act requirement to the elements of custody and control, arguing that
the State could not prove the elements of possession if the driver placed the
contraband in her purse without her consent moments before the stop. During
the State’s closing argument, the prosecutor offered the following response to
the defendant’s argument: “Just the fact that you know about it or are near it
isn’t possession. It’s what you do with it once you know about it. But also
remember the elements of this case. Voluntary is not an element. It is custody

2
and control.” The defendant objected, arguing that the prosecutor’s statement
was “contrary to the law,” and requested a curative instruction on RSA 626:1.
The trial court overruled the objection and denied the request, reiterating that
“if the State proves possession as the jury is instructed on it, they will
necessarily have proved it was voluntary.” The jury found the defendant guilty.
This appeal followed.

II. Analysis

The defendant first argues that the trial court’s instructions on
possession failed to adequately inform the jury of the voluntary-act
requirement, and, therefore, the trial court erred by rejecting her initial
proposed instruction on RSA 626:1. The State, on the other hand, argues that
the proposed instruction was unnecessary because the trial court’s
instructions on the statutory elements of possession adequately addressed the
voluntary-act requirement. We agree, in part, with the State. The proposed
instruction on voluntariness was unnecessary, not because the trial court’s
instructions adequately addressed the issue, but because there was insufficient
evidence presented to the jury to support a rational finding that the defendant’s
possession of the contraband was involuntary. See State v. Larose, 157 N.H.
28, 36-38 (2008) (upholding the trial court’s decision denying the defendant’s
request for an entrapment instruction because the defendant failed to produce
sufficient evidence supporting his entrapment defense).

The purpose of the trial court’s jury instructions is to state and explain
to the jury, in clear and intelligible language, the rules of law applicable to the
case. State v. Gingras, 162 N.H. 633, 638 (2011). When reviewing jury
instructions, we evaluate allegations of error by interpreting the disputed
instructions in their entirety, as a reasonable juror would have understood
them, and in light of all the evidence in the case. Id. We determine if the jury
instructions adequately and accurately explain each element of the offense,
and we reverse only if the instructions did not fairly cover the issues of law in
the case. Id. The necessity, scope, and wording of jury instructions generally
fall within the sound discretion of the trial court, and we review the trial court’s
decisions on these matters for an unsustainable exercise of discretion. Id. To
show that the trial court’s decision is unsustainable, the defendant must
demonstrate that the court’s ruling was clearly untenable or unreasonable to
the prejudice of her case. State v. Rice, 169 N.H. 783, 790 (2017).

We now turn to the merits of the defendant’s argument. The trial court
instructed the jury, consistent with the statutory elements of possession, that:

The definition of the crime of possession of a controlled drug
has four parts or elements. The State must prove each element
beyond a reasonable doubt. Thus, the State must prove that, first,
the Defendant had the drug under her custody and control and,

3
 second, the Defendant knew that the drug was in her vicinity and,
third, the Defendant knew that the drug found was a controlled
drug, that is crack cocaine, and, fourth, the drug found was in fact
crack cocaine.

See State v. Francis, 167 N.H. 598, 604 (2015) (outlining the statutory
elements of possession of a controlled drug). The trial court further instructed
the jury that:

In deciding whether the Defendant had custody and
control over the drug, you should consider where the drug was
found, the Defendant’s control over the place where the drug
was found, and any other evidence presented. If you decide
that the evidence only proves that the Defendant was present
where the drug was found, then the State has not proven
custody and control. If you decide that the evidence only
shows that the Defendant knew where the drug was but exercised
no control over the drug, then the State has not proven custody
and control.

However, the State does not have to prove that the
drug was found on the Defendant’s person to prove custody and
control. It is sufficient if the drug was found in a place
over which the Defendant exercised control and the Defendant
knew what the drug was and that it was there. It is possible
for more than one person to have custody and control of the drug.
You do not have to find that the Defendant had exclusive custody
and control of the drug.

....

Part of the definition of the crime of possession of a
controlled drug is that the defendant acted knowingly. A person
acts knowingly when she is aware of the nature of her conduct or
the circumstance under which she acted. The State does not have
to prove that the defendant specifically desired or intended a
particular result. What the State must prove is that the defendant
was aware of the nature of her conduct or the circumstance under
which she engaged in the conduct.

Whether the defendant acted knowingly is a question of fact
for you to decide.

On appeal, the defendant argues that the statutory elements of
possession, as defined by the trial court’s instructions, do not fully encompass
the voluntary-act requirement. RSA 626:1, I, states that “[a] person is not

4
guilty of an offense unless his criminal liability is based on conduct that
includes a voluntary act or the voluntary omission to perform an act of which
he is physically capable.” RSA 626:1, II further states that “[p]ossession is a
voluntary act if the possessor knowingly procured or received the thing
possessed or was aware of his control thereof for a sufficient period to have
been able to terminate his possession.” We consider the voluntary-act
requirement “a matter of fundamental criminal law,” State v. Starr, 170 N.H.
106, 108 (2017) (quotation omitted), but we have never held that a jury
instruction concerning the voluntariness of a defendant’s conduct is necessary
in every criminal case, and we decline to so conclude here.

In most cases, a defendant in possession of a controlled drug will have
“knowingly procured or received” the drug within the meaning of RSA 626:1, II.
See Baird v. State, 604 N.E.2d 1170, 1176 (Ind. 1992) (‘‘In most cases there is
no issue of voluntariness and the State’s burden is carried by proof of
commission of the act itself.’’); see also Webster’s Third New International
Dictionary 1809 (unabridged ed. 2002) (defining “procure” as “to get possession
of by particular care or effort”); id. at 1894 (defining “receive” as “to take
possession . . . of”). However, this observation may not apply in every case. If
evidence is presented at trial that a defendant did not choose to procure or
receive the contraband — for example, because another person placed it in the
defendant’s possession without consent — and if evidence supports a
conclusion that a defendant was not aware of his or her control of the
contraband for a sufficient period to have been able to terminate his or her
possession, the defendant’s possession could be involuntary. See State v.
Daoud, 141 N.H. 142, 146 (1996) (explaining that RSA 626:1 precludes
criminal liability when “the defendant did not choose to commit the charged
crime”); 21 Am. Jur. 2d Criminal Law § 124, at 229 (2008) (stating that
“physical movements are not voluntary if they are the nonvolitional result of
someone else’s act”); see also Model Penal Code & Commentaries, § 2.01 note,
at 213 (1985) (“[I]f the actor was aware of his control for a sufficient period to
have been able to terminate his possession, his conduct will have included an
omission to perform an act of which he was physically capable.”).

We conclude that, in certain circumstances, the statutory elements of
possession of a controlled drug are not coterminous with RSA 626:1, II. See
State v. Colcord, 109 N.H. 231, 234 (1968) (stating that the defendant’s act of
handing a box of marijuana to the police evidenced “her possession and control
of it,” but was alone insufficient to support a conviction of possession). Given
this conclusion, an instruction on RSA 626:1 is warranted in a drug possession
case, but only when some evidence suggests that the defendant’s possession
was involuntary. See State v. Almaguer, 303 P.3d 84, 91 (Ariz. Ct. App. 2013)
(explaining that “[a]n instruction that the state must prove the defendant
committed a voluntary act is appropriate only if there is evidence to support a
finding” that the defendant acted involuntarily); State v. Pierson, 514 A.2d 724,
728 (Conn. 1986) (stating that jury instructions omitting reference to

5
Connecticut’s voluntary-act requirement are not “constitutionally defective”
when, as relevant here, “the evidence at trial contains no suggestion that the
defendant’s conduct was involuntary”); Wyant v. State, 458 P.3d 13, 18 (Wyo.
2020) (observing that the weight of authority in other states establishes that “a
voluntariness instruction is not necessary unless there is evidence suggesting
the defendant’s conduct was not voluntary”); see also Larose, 157 N.H. at 33
(“‘Some evidence’ means more than a minutia or a scintilla of evidence. To be
more than a scintilla, evidence cannot be vague, conjectural, or the mere
suspicion about the existence of a fact, but must be real and of such quality as
to induce conviction.” (quotation omitted)).

Here, the evidence supporting the defendant’s argument that her
possession was involuntary was based upon mere conjecture and suspicion.
At trial, the arresting officer testified that, just before the stop, he observed the
driver swerving the vehicle in and out of its lane. The officer also hypothesized
that, in his experience, “sometimes people are reaching for . . . something in
their car, and they . . . may swerve a little bit.” This testimony merely invites a
suspicion supporting the defendant’s argument; it fails to induce a rational
conviction that the driver swerved the vehicle while attempting to conceal
contraband in the defendant’s purse without her consent. Moreover, the
defendant admitted that she suffered from heroin addiction, and that the
heroin-like substance belonged to her; she never denied knowledge or
ownership of the crack cocaine or the crack pipe found in her purse. Nor did
she make any effort to terminate or disavow ownership of the contents of her
purse. Instead, she grabbed her purse and began clutching it to her chest once
the officer began questioning her and the driver about drugs.

In addition, the defendant initially lied to the officer when first
questioned as to whether her purse contained any illegal contraband.
Accordingly, we conclude that the evidence presented at trial did not constitute
“some evidence” suggesting that the defendant possessed the contraband
involuntarily. See Larose, 157 N.H. at 33.

Therefore, the trial court did not unsustainably exercise its discretion by
refusing to provide the requested instruction concerning the defendant’s
voluntary possession of the contraband. Although the trial court denied the
defendant’s request on a different basis, we may uphold a trial court’s
discretionary decision when it reached the right result for the wrong reason.
See State v. Hayward, 166 N.H. 575, 583 (2014). As explained above, given the
paucity of evidence supporting the defendant’s argument, there was but one
path the trial court could have taken, as a matter of law, without
unsustainably exercising its discretion. See id. at 584.

We next address the defendant’s argument that her conviction must be
overturned because: (1) during its closing argument, the State misstated the
law concerning the elements of possession of a controlled drug; and (2) the trial

6
court erred by refusing to provide the jury with a curative instruction. “A
prosecutor has great latitude in closing argument to both summarize and
discuss the evidence presented to the jury and to urge the jury to draw
inferences of guilt from the evidence.” State v. DiNapoli, 149 N.H. 514, 520
(2003) (quotation and ellipsis omitted). However, prosecutors are not free to
misstate the law during closing argument. See State v. Watkins, 148 N.H. 760,
769 (2002) (concluding that a curative instruction “would have been
appropriate” where the prosecutor “blatantly misstated the law” during closing
argument). “The trial court is in the best position to determine what remedy
will adequately correct the prejudice created by a prosecutor’s remarks, and
absent an unsustainable exercise of discretion, we will not overturn its
decision.” State v. Gaudet, 166 N.H. 390, 399 (2014) (quotation omitted). To
show that the trial court’s decision is unsustainable, the defendant must
demonstrate that it was clearly untenable or unreasonable to the prejudice of
her case. State v. Collins, 168 N.H. 1, 6 (2015).

Here, the defendant complains that the State misrepresented the
elements of the charged offense when the prosecutor argued at closing: “Just
the fact that you know about [a controlled drug] or are near it isn’t possession.
It’s what you do with it once you know about it. But also remember the
elements of this case. Voluntary is not an element. It is custody and control.”
We disagree with the premise of the defendant’s argument. The State’s closing
argument did not misrepresent or misstate the law, as applied to the facts
presented to the jury here. The voluntariness of a defendant’s conduct is not,
per se, an element of possession of a controlled drug, see Francis, 167 N.H. at
604, and “[v]oluntariness of criminal conduct is not a fact that the state must
prove in every case; rather, the state need not prove voluntariness unless the
evidence raises the issue, in which case the state must disprove
involuntariness beyond a reasonable doubt.” 21 Am. Jur. 2d Criminal Law,
supra § 124, at 229. As we have explained, the evidence presented to the jury
did not constitute “some evidence” suggesting that the defendant’s possession
was involuntary and, thus, the State was not required to prove that the
defendant’s possession of the crack cocaine was voluntary. Accordingly, the
State’s closing argument did not misstate or misrepresent the law, as applied
to this case, and the trial court did not unsustainably exercise its discretion
when it refused to issue a curative or cautionary instruction.

III. Conclusion

For the reasons stated above, we affirm the defendant’s conviction. We
consider waived any issues that the defendant raised in her notice of appeal,
but did not brief. See State v. Bazinet, 170 N.H. 680, 688 (2018).

Affirmed.

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

7