COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

ANTHONY JAMES DOCKERY 

 MEMORANDUM OPINION* BY 

v. Record No. 3050-96-1 JUDGE NELSON T. OVERTON 

 JANUARY 27, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Kenneth N. Whitehurst, Jr., Judge 

 Melinda R. Glaubke, Senior Assistant Public 

Defender, for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Anthony James Dockery (defendant) appeals his conviction for 

possession of marijuana by an inmate. He makes three arguments 

on appeal: 1) the chain of custody between the prison guard who 

found the marijuana and the forensic laboratory was not proven, 

2) evidence of possession of the marijuana was insufficient to 

support the conviction and 3) the trial court allowed 

impermissible hearsay evidence. For the following reasons, we 

reverse. 

 The parties are fully conversant with the record in the 

cause, and because this memorandum opinion carries no 

precedential value, we recite only those facts necessary to 

disposition of the case. We address each argument in turn. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 "[W]here the substance analyzed has passed through several 

hands the evidence must not leave it to conjecture as to who had 

it and what was done with it between the taking and the 

analysis." Rodgers v. Commonwealth, 197 Va. 527, 531, 90 S.E.2d 

257, 259-60 (1955). However, the court need not "exclude every 

conceivable possibility of substitution, alteration [or] 

tampering." Robertson v. Commonwealth, 12 Va. App. 854, 857, 406 

S.E.2d 417, 419 (1991). In the case at hand, the "green plant 

material" that was later identified as marijuana was found in a 

pair of pants in defendant's personal property box when he was an 

inmate at the Virginia Beach Correctional Center. Corporal 

Watts, the guard who found the material, put it in a plastic bag, 

heat-sealed it, and left it at "property and evidence" in the 

police department. The record then indicates that it appeared at 

the Division of Forensic Science in Norfolk and was given to Dr. 

Susan Ragudo. Dr. Ragudo testified that the evidence bag was 

received, unopened, on July 1, 1996 and she analyzed the material 

on July 7, 1996, yet the certificate of analysis stated that it 

was received on June 21, 1996. 

 On the facts before us, we cannot say as a matter of law 

that the chain of custody was insufficient. See Dotson v. Petty, 

4 Va. App. 357, 358 S.E.2d 403 (1987) (holding that when evidence 

is received by the lab sealed and intact, there is a presumption 

that it has not been tampered with). Therefore, we affirm that 

portion of the trial court's ruling. We note, however, that the 
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proof in this case travels the line of acceptability and that 

only slightly altered circumstances would have put it over. The 

prosecutor's goal should not be minimal compliance with the law, 

but wholehearted acceptance of its safeguards. 

 Defendant's second argument was that the evidence was 

insufficient to show that he possessed the drugs. The marijuana 

was found in a property box which contained items taken from 

defendant when he first entered the facility, items placed there 

on his behalf by persons visiting the facility, and items seized 

from him while incarcerated. The marijuana was not, at any time, 

actually seen or found on defendant's person. The Commonwealth 

argued that because the drugs were found in his box, he 

constructively possessed them. This argument takes the doctrine 

of constructive possession beyond the limits to which it was 

originally intended and we, therefore, reject it. 

 "To support a conviction based upon constructive possession, 

'the Commonwealth must point to evidence of acts, statements, or 

conduct of the accused or other facts or circumstances which tend 

to show that the defendant was aware of both the presence and 

character of the substance and that it was subject to his 

dominion and control.'" McGee v. Commonwealth, 4 Va. App. 317, 

322, 357 S.E.2d 738, 740 (1987) (citation omitted) (quoting Drew 

v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986)). 

However, "[i]f [the drugs] are found upon premises owned or 

occupied as well by others as himself, or in a place to which 
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others had equal facility and right of access, there seems no 

good reason why he, rather than they, should be charged upon this 

evidence alone." Tyler v. Commonwealth, 120 Va. 868, 871, 91 

S.E. 171, 172 (1917). 

 In the instant case, the drugs were found in a box to which 

many others had access. It was demonstrated at trial that a 

visitor to the facility could deposit items in the box without 

the knowledge or consent of the inmate. Furthermore, because the 

pants in which the drugs were found were not searched when they 

were returned by the defendant after his last court appearance, 

it was not proven that he actually possessed the drugs. The 

facts of this case are comparable to those in Burchette v. 

Commonwealth, 15 Va. App. 432, 435-36, 425 S.E.2d 81, 84 (1992), 

where marijuana was found in a parked car belonging to Mr. 

Burchette. However, because the Commonwealth could not prove 

that he had been in the car at the same time as the drugs, the 

court could not infer that he had either knowledge or dominion 

and control over the drugs. Id. at 439, 425 S.E.2d at 86. In 

defendant's case, it cannot be established that he was wearing 

the pants at the same time they contained marijuana, nor was it 

shown that he placed the marijuana in the pants. Indeed, the 

record does not even show with certainty when the pants were 

placed in the box. There are simply too many "reasonable 

hypothes[es] of innocence" that the Commonwealth failed to 

exclude. Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 
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783, 784 (1983). 

 We hold that the evidence is insufficient as a matter of law 

to support the defendant's conviction. Because the second issue 

is dispositive, we decline to address defendant's third argument. 

 Accordingly, we reverse and dismiss. 

 Reversed.