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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. 
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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 
3

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, 
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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 
5

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 
6

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 
7

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.