Supreme Court At-a-Glance Contributor Ryan M. Borden, Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth, NH with a focus on bankruptcy representation of trustees, creditors and debtors, corporate law and commercial litigation.

No. 2019-0407

January 27, 2021

Affirmed

 

  • Whether the trial court erred in denying Defendant’s requested jury instruction on the voluntary-act requirement set forth in RSA 626:1.
  • Whether the prosecutor’s statement during closing argument that voluntariness is not an element of possession was contrary to the law.

 

The Defendant was convicted on one count of possession of a controlled drug.  The Defendant argued that the trial court erred when it denied her requested jury instruction on the voluntary-act requirement set forth in RSA 626:1 and that the prosecutor’s statement during closing arguments that voluntariness was not an element of possession was contrary to the law.

The Defendant was a passenger in a vehicle that was pulled over.  The police officer noticed an odor of marijuana when he approached the vehicle.  When the officer questioned the occupants about the odor, the Defendant grasped her purse.  The officer asked if he could search the Defendant’s purse, at which point she told the officer there was nothing illegal in her purse.  She then consented to the search, and the officer found a crack pipe, a marijuana pipe, and two substances the officer believed were heroin and crack cocaine.  Only the crack cocaine substance came back positive as crack cocaine.   At trial, the Defendant argued that she did not know how the crack cocaine got in her purse, and that the driver may have put in there without her knowledge after the vehicle was stopped and before the officer arrived at the car.

The Defendant first argued that every criminal act requires that the defendant acted voluntarily, and the trial court’s instruction on possession failed to inform the jury of the voluntary-act requirement.  The Defendant argued that the trial court erred by rejecting her initial proposed instruction about the voluntary-act requirement.  The State countered that the instruction on possession adequately addresses the voluntary-act requirement.  The Court agreed in part with the State; the Court ruled that the instruction was adequate, not because the instruction adequately addressed the issue, but because there was insufficient evidence to demonstrate that Defendant’s possession was involuntary.  The Court went on to discuss that, in some cases, a jury instruction on the voluntary-act requirement set forth in RSA 626:1 is warranted in drug possession cases, but only when some evidence suggests that the defendant’s possession was involuntary.  Because the Defendant’s evidence was based on mere conjecture in this case, and because she had initially lied to the police officer about the contents of her purse, the trial court did not err in failing to provide a specific RSA 626:1 instruction.

The Defendant next argued that during the State’s closing argument, the prosecutor improperly stated the elements of possession and the trial court refused to offer a curative instruction.  The prosecutor had stated that “voluntary is not an element. It is custody and control.”  The Court was not persuaded by the Defendant’s challenge, and held that voluntariness is not, per se, an element of possession of a controlled drug.  Because the Defendant had failed to provide anything more than mere speculation that her possession was involuntary, the State did not have the burden to establish beyond a reasonable doubt that her possession was voluntary.

 

Gordon J. MacDonald, attorney general (Danielle H. Sakowski, senior assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, Chief appellate defender, Concord, on the brief and orally, for the defendant.