State v. Drake
| Decision Date | 06 April 2007 |
| Docket Number | No. 2006–050.,2006–050. |
| Citation | 155 N.H. 169,921 A.2d 403 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Alvin V. DRAKE. |
Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State.
Law Office of David H. Bownes, P.C., of Laconia (David H. Bownes, on the brief and orally), for the defendant.
The defendant, Alvin V. Drake, appeals his conviction for possession of a controlled drug, see RSA 318–B:2 (2004); RSA 318–B:26 (2004) (amended 2005, 2006), following a jury trial in Superior Court (Perkins, J.). We affirm.
The jury could have found the following facts. On January 21, 2005, Sergeant Christopher Ruel of the New Hampshire Division of Motor Vehicles witnessed a small pickup truck driven by the defendant heading north on Route 3 in Lancaster. The defendant was traveling at a high rate of speed, straddling the centerline and forcing other vehicles off the road. Sergeant Ruel activated his blue lights and followed the defendant, who did not immediately pull over. Sergeant Ruel gave "a couple of blasts of [his] air horn" and activated his siren. The defendant eventually pulled over and parked on the side of the road partially in a snow bank.
Sergeant Ruel approached the defendant's truck, asked him to get out and arrested him. As Sergeant Ruel searched the defendant, he felt a cylindrical object in the defendant's front pocket. At this point, the defendant twisted, reached into his pocket, pulled out a prescription pill bottle and threw it. Sergeant Ruel attempted to handcuff the defendant, but he fought with the officer. After the defendant was handcuffed, Sergeant Ruel found two 2.5–milligram oxycodone tablets in the defendant's pocket and eventually located the prescription bottle. It contained eleven 5–milligram diazepam tablets, seventy-five 5–milligram oxycodone tablets, and thirty-eight 4.5–milligram oxycodone tablets. The name on the prescription bottle label was Andreas Wischlburger.
After the defendant waived his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he claimed that he was the only person who used the truck and everything in it was his, but he did not know where the drugs had come from. He stated that he had been really scared and that is why he threw them. Later, the defendant claimed that the prescription bottle belonged to his wife and that he knew he would be in trouble for having it. During the inventory search of the defendant's truck, Sergeant Ruel found two 4.5–milligram oxycodone tablets in the center console, eleven 7.5–milligram oxycodone tablets in a shaving kit inside a duffle bag, and five 7.5–milligram oxycodone tablets in a black fanny pack. The defendant was indicted on one count of possession of the controlled drug diazepam, one count of possession of the controlled drug oxycodone, and one count of possession with intent to deliver the controlled drug oxycodone. See RSA 318–B:2, :26.
At trial, Wischlburger, the owner of the prescription bottle, testified that he had known the defendant for twenty years; that they both lived in Meredith; and that in December 2004 and January 2005, he had been on the defendant's property cutting wood. During this time period, Wischlburger had been taking diazepam, prescribed to him for pain, on a regular basis for eight or nine years. He would take the diazepam at night in order to sleep. The prescription was last filled on December 8, 2004, and at some point after that he misplaced the bottle. Wischlburger testified that the defendant called and said that he found the prescription bottle and would return it, but Wischlburger was unclear about the time period regarding these events.
At the end of the State's case, the court dismissed the two counts alleging possession of oxycodone. The jury convicted the defendant on the one count of possession of the controlled drug diazepam. On appeal, the defendant argues: (1) that the superior court erred in giving the State's requested jury instructions regarding possession of prescription drugs under RSA 318–B:13 (2004) and RSA 318–B:14 (2004) because the instructions were confusing and irrelevant; and (2) the evidence was insufficient to prove his guilt beyond a reasonable doubt.
We first address the defendant's assertion that the jury instructions were confusing and irrelevant. The defendant first argues that the court's charge impermissibly amended the indictment. The defendant did not object on this basis at trial, however, and we therefore decline to address this claim on appeal. See State v. McCabe, 145 N.H. 686, 689–90, 765 A.2d 176 (2001). Second, he argues that the jury instructions were misleading, which caused the jury to be confused about the correct legal standard to be used in resolving the material issues of the case. We disagree.
In addressing the defendant's argument, we recognize:
The purpose of the trial court's charge is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case. 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. We determine if the jury instructions adequately and accurately explain each element of the offense and reverse only if the instructions did not fairly cover the issues of law in the case.
State v. Bortner, 150 N.H. 504, 512, 841 A.2d 80 (2004) (quotations and citations omitted). Whether or not a particular jury instruction is necessary, and the scope and wording of jury instructions, are both within the sound discretion of the trial court, see State v. Cook, 148 N.H. 735, 741–42, 813 A.2d 480 (2002) ; State v. Evans, 150 N.H. 416, 420, 839 A.2d 8 (2003), and we review the trial court's decisions on these matters for an unsustainable exercise of discretion, see State v. Poole, 150 N.H. 299, 301, 837 A.2d 307 (2003).
The court instructed the jury on the specific elements of the crime using language that tracked RSA 318–B:2 : "That ... the defendant, knowingly had the drug under his custody and control; That [he] knew the drug was under his custody and control; That [he] knew that the controlled drug was in fact Diazepam; and That the drug was in fact Diazepam." The court's instructions adequately and accurately explained each element of the offense. The court then recited RSA 318–B:13 (requirements for prescription labeling) and RSA 318–B:14 (requirements for lawful possession of prescription drugs), followed by an instruction on the defendant's theory of the case: "that the drug, Diazepam, which was found, w[as] lawfully prescribed to a third person and that the state ha[d] not proven beyond a reasonable doubt that the defendant intended to unlawfully exercise possession or control over those drugs."
RSA 318–B:13 and :14 could be reasonably understood as a general overview of the defense's theory of the case. In closing arguments, the defense argued that the issue before the jury was whether the defendant unlawfully possessed Wischlburger's prescription. Moreover, the defense argued that "these were lawfully prescribed pills to a third party and that [the defendant] wasn't possessing them to sell them or to use them or anything other than just to return them to Mr. Wischlburger," and that if the prescription pills lawfully belonged to Wischlburger, then the defendant was not guilty. Reading RSA 318–B:13 and RSA 318–B:14 was likely helpful to the jury in determining whether the defendant's theory was sustainable.
We are unconvinced that reading RSA 318–B:13 and RSA 318–B:14 could have misled or confused the jury on the legal standard to be applied. During the jury's charge, the court stated:
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State v. Brooks
...not consider what the legislature might have said or add language that the legislature did not see fit to include." State v. Drake, 155 N.H. 169, 174–75, 921 A.2d 403 (2007). Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy soug......
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State v. Hernandez
...is to state and explain to the jury, in clear and intelligible language, the rules of law applicable to the case. State v. Drake, 155 N.H. 169, 171, 921 A.2d 403 (2007). When reviewing jury instructions, we evaluate allegations of error by interpreting the disputed instructions in their ent......
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State v. Formella
...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, 921 A.2d 403 (2007). When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used. Id. We const......
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State v. Formella
...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, 921 A.2d 403 (2007). When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used. Id. We const......