2006-050, STATE OF NH v. ALVIN V. DRAKE

The defendant, Alvin V. Drake, appeals his conviction for

brief and orally), for the defendant. Law Office of David H. Bownes, P.C., of Laconia (David H. Bownes on the

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2006-050 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Coos Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as deliver the controlled drug oxycodone. p. 2 the controlled drug oxycodone, and one count of possession with intent to

about the time period regarding these events.

count of possession of the controlled drug diazepam, one count of possession of Wischlburger.

argues: (1) that the superior court erred in giving the State’s requested jury

the prescription bottle and would return it, but Wischlburger was unclear bottle. Wischlburger testified that the defendant called and said that he found oxycodone tablets in a black fanny pack. The defendant was indicted on one last filled on December 8, 2004, and at some point after that he misplaced the oxycodone tablets in a shaving kit inside a duffle bag, and five 7.5-milligram oxycodone tablets. The name on the prescription bottle label was Andreas milligram oxycodone tablets in the center console, eleven 7.5-milligram

count of possession of the controlled drug diazepam. On appeal, the defendant

inventory search of the defendant’s truck, Sergeant Ruel found two 4.5- the prescription bottle. It contained eleven 5-milligram diazepam tablets, milligram oxycodone tablets in the defendant’s pocket and eventually located alleging possession of oxycodone. The jury convicted the defendant on the one

diazepam, prescribed to him for pain, on a regular basis for eight or nine years. property cutting wood. During this time period, Wischlburger had been taking wife and that he knew he would be in trouble for having it. During the and that in December 2004 and January 2005, he had been on the defendant’s them. Later, the defendant claimed that the prescription bottle belonged to his officer. After the defendant was handcuffed, Sergeant Ruel found two 2.5come from. He stated that he had been really scared and that is why he threw At the end of the State’s case, the court dismissed the two counts

he had known the defendant for twenty years; that they both lived in Meredith; it. Sergeant Ruel attempted to handcuff the defendant, but he fought with the At trial, Wischlburger, the owner of the prescription bottle, testified that truck and everything in it was his, but he did not know where the drugs had twisted, reached into his pocket, pulled out a prescription pill bottle and threw cylindrical object in the defendant’s front pocket. At this point, the defendant See RSA 318-B:2, :26.

384 U.S. 436 (1966), he claimed that he was the only person who used the and arrested him. As Sergeant Ruel searched the defendant, he felt a After the defendant waived his Miranda rights, see Miranda v. Arizona,

road partially in a snow bank.

Sergeant Ruel approached the defendant’s truck, asked him to get out

his siren. The defendant eventually pulled over and parked on the side of the pull over. Sergeant Ruel gave “a couple of blasts of [his] air horn” and activated issues of law in the case.

p. 3 reverse only if the instructions did not fairly cover the accurately explain each element of the offense and determine if the jury instructions adequately and

adequately and accurately explained each element of the offense.

them, and in light of all the evidence in the case. We

Diazepam; and That the drug was in fact Diazepam.” The court’s instructions custody and control; That [he] knew that the controlled drug was in fact the drug under his custody and control; That [he] knew the drug was under his

by an instruction on the defendant’s theory of the case: “that the drug, 318-B:14 (requirements for lawful possession of prescription drugs), followed entirety, as a reasonable juror would have understood court, error by interpreting the disputed instructions in their reviewing jury instructions, we evaluate allegations of

language that tracked RSA 318-B:2: “That . . . the defendant, knowingly had

an unsustainable exercise of discretion,

then recited RSA 318-B:13 (requirements for prescription labeling) and RSA wording of jury instructions, are both within the sound discretion of the trial The court the rules of law applicable to the case. When

The court instructed the jury on the specific elements of the crime using

(2003).

416, 420 (2003), and we review the trial court’s decisions on these matters for see State v. Cook, 148 N.H. 735, 741-42 (2002); State v. Evans, 150 N.H.

Whether or not a particular jury instruction is necessary, and the scope and State v. Bortner explain to the jury, in clear and intelligible language,, 150 N.H. 504, 512 (2004) (quotations and citations omitted).

appeal.

The purpose of the trial court's charge is to state and

reasonable doubt. In addressing the defendant’s argument, we recognize: irrelevant; and (2) the evidence was insufficient to prove his guilt beyond a issues of the case. We disagree. confused about the correct legal standard to be used in resolving the material that the jury instructions were misleading, which caused the jury to be

See State v. McCabe, 145 N.H. 686, 689-90 (2001). Second, he argues

basis at trial, however, and we therefore decline to address this claim on impermissibly amended the indictment. The defendant did not object on this confusing and irrelevant. The defendant first argues that the court’s charge We first address the defendant’s assertion that the jury instructions were

(2004) and RSA 318-B:14 (2004) because the instructions were confusing and instructions regarding possession of prescription drugs under RSA 318-B:13 p. 4 Exceptions are made for those of non or reasonable

then in section two of that statute reads in Section C: by the person selling or dispensing the same. And only in the container in which it was delivered to him

alter, deface, or remove any label so affixed.

practitioner or a pharmacist, may lawfully possess it

whether the defendant’s theory was sustainable.

and quantity of the drug dispensed. No person shall

drug has been prescribed, sold, or dispensed by a individual to whom or for whose use any controlled Individuals. This, in relevant part, reads: An 4

318-B:13 and RSA 318-B:14 was likely helpful to the jury in determining belonged to Wischlburger, then the defendant was not guilty. Reading RSA to return them to Mr. Wischlburger,” and that if the prescription pills lawfully

stated on the prescription and the name and strength

B:14, Authorized Possession of Controlled Drugs by

wasn’t possessing them to sell them or to use them or anything other than just

patient, the date dispensed, any directions as may be

the jury’s charge, the court stated: prescription identifying number, the name of the

the name of the prescribing practitioner, the

affix to the container in which said [ The second statute I want to read to you is RSA 318- prescription issued by a practitioner, he or she shall

“these were lawfully prescribed pills to a third party and that [the defendant] possessed Wischlburger’s prescription. Moreover, the defense argued that argued that the issue before the jury was whether the defendant unlawfully have misled or confused the jury on the legal standard to be applied. During

of the pharmacy name or initials of the pharmacist, label showing the name, address, and registry number

a pharmacist dispenses any controlled drug or B:13. . . . This law says in relative [sic] part, whenever that I’m going to read to you. The first is RSA 318- There are a couple of statutes that deal with drugs

overview of the defense’s theory of the case. In closing arguments, the defense We are unconvinced that reading RSA 318-B:13 and RSA 318-B:14 could

intended to unlawfully exercise possession or control over those drugs.”

RSA 318-B:13 and :14 could be reasonably understood as a general

that the state ha[d] not proven beyond a reasonable doubt that the defendant Diazepam, which was found, w[as] lawfully prescribed to a third person and later claimed that the prescription belonged to his wife and he would be in

p. 5 support such a defense. explained further below, neither the facts nor the terms of RSA 318-B:6 defense arises out of RSA 318-B:6 (2004) entitled, “Possession Lawful.” As defendant first stated that he didn’t know where the drugs had come from, but

information as required by the Controlled Drug Act.” He claims that such a Sergeant Ruel testified that when questioned about the prescription bottle, the of oxycodone. The defendant’s name was not on the prescription bottle’s label. was confiscated, it contained eleven tablets of diazepam along with 113 tablets

physician who prescribed the medication and provided the required

pocket, removed the bottle and threw it away. When the prescription bottle found guilt beyond a reasonable doubt.” fact, viewing the evidence in the light most favorable to the State, could have evidence, the defendant bears the burden of proving that no rational trier of

instructions were not confusing or irrelevant.

eleven (11) Diazepam pills. The pill bottle itself accurately described the lawfully prescribed to Andreas Wischlburger, issued on 12/8/04 and contained lawful possession of the diazepam because “the prescription bottle, was When Sergeant Ruel went to recover the bottle, the defendant reached into his defendant and discovered a prescription bottle in the defendant’s front pocket. In the present case, Sergeant Ruel conducted a pat search of the under RSA 318-B:2. “To prevail in a challenge to the sufficiency of the

intelligible description of the applicable law in this case, we conclude that the their entirety, the trial court’s instructions provided the jury with a clear and item in the context of all the evidence, not in isolation.” therefore, he could not be guilty of unlawful possession. Because, viewed in

The defendant argues that the evidence demonstrated that he was in

State v. Gubitosi, 152 N.H. 673, 680 (2005). insufficient to support the jury’s finding of possession of a controlled drug the jury has substantial latitude in determining the credibility of witnesses.” provided they can be reasonably drawn therefrom.” Id. “It is well settled that proved and also inferences from facts found as a result of other inferences, doubt.” Id. “Further, the trier may draw reasonable inferences from facts evidence may be sufficient to support a finding of guilty beyond a reasonable

A.2d 767, 772 (2006). “In reviewing the evidence, we examine each evidentiary of defense, which was that the pills had been lawfully prescribed and that, State v. Crie, 154 N.H. __, __, 913

We next address the defendant’s argument that the evidence was

charged, read RSA 318-B:13 and 14, and then explained the defendant’s theory The court began its jury charge with the specific elements of RSA 318-B:2 as

the person in carrying out the prescriber’s directions. [sic] containers, which are medication organizers to aid in the words of the statute considered as a whole.

p. 6 interpretation, we are the final arbiters of the legislature’s intent as expressed contain the language suggested by the defendant. In matters of statutory

cannot be construed as proposed by the defendant. RSA 318-B:6 does not

deciding that this issue was properly preserved, we rule that RSA 318-B:6

concurred.

dismiss nor did he ask for a jury instruction on this issue. Assuming without However, the defendant never specifically raised this issue below in a motion to possession by third parties with the permission of the lawful possessor. 6

BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

not see

defendant urges us to interpret RSA 318-B:6 to authorize the incidental

what the legislature might have said or add language that the legislature did

business, occupation, profession, employment, or duty of the possessor.” The drugs obtained as authorized shall be lawful if in the regular course of statute. RSA 318-B:6 provides in part: “Possession of or control of controlled

fit to include. Id.

interpret legislative intent from the statute as written and will not consider statute, we ascribe the plain and ordinary meaning to the words used. Id. We Chesterfield, 153 N.H. 70, 73 (2005). When examining the language of the

of being in unlawful possession of a controlled drug. fact could have found beyond a reasonable doubt that the defendant was guilty

to possess it. However, in this case, RSA 318-B:6 is not a proper defense for was lawfully prescribed to a third party who allegedly authorized the defendant of defense that he was in lawful possession of the diazepam because the drug On appeal, the defendant argues that RSA 318-B:6 supports his theory

it in the light most favorable to the State, we conclude that a rational trier of trouble for having it. Viewing this evidence and all reasonable inferences from