                     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.
     "[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




                                   4
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.




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