                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia


JAMES ANTHONY BROCKETT

v.          Record No. 1483-94-1        MEMORANDUM OPINION * BY
                                     JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA                   OCTOBER 31, 1995


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                   Kenneth N. Whitehurst, Jr., Judge
            Andrew G. Wiggin, Assistant Public Defender
            (Office of the Public Defender, on brief),
            for appellant.

            Robert B. Beasley, Jr., Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     On appeal from his conviction of possession of cocaine,

James Anthony Brockett contends the trial court erred (1) in

denying his pretrial motion to dismiss, (2) in upholding the

January 26, 1994 order, and (3) in finding the evidence

sufficient to support his conviction.

     On appeal, we view the evidence in the light most favorable

to the Commonwealth.     Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975).

     On July 17, 1988, at 1:30 a.m., Virginia Beach Police

Officers Jackson and Mullen executed a search warrant in Room 127

of the Lynnhaven Lodge.    Brockett was in the room.   Detective

Jackson searched Brockett and found in his rear pants pocket a
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
napkin containing three baggies of cocaine.    Jackson took the

cocaine to his office and locked it in an evidence locker for

which he had the only key.    Later, Detectives Jackson and Mullen

repackaged the cocaine, sealed the packages, and locked them in

evidence locker number eight.    Evidence custodian Carroll Cover

took the cocaine to the State Forensics Laboratory.    Prior to

trial, Cover died and was succeeded by Master Police Officer W.

W. Carder as custodian of the evidence records.    Carder's records

revealed that on July 22, 1988, Cover took the evidence to the

laboratory and delivered it to Charles Fishell, an examiner.

Fishell reported that the package was properly sealed, there was

no indication of tampering, and that the substance was cocaine.

He returned the cocaine to the police department on September 9,

1988.    Subsequently, the drugs were inadvertently destroyed.
        On January 26, 1994, a hearing was held on Brockett's motion

to dismiss the indictment
     because of the absence of the Commonwealth being able
     to introduce any evidence of cocaine, obviously, they
     wouldn't have a case for possession of cocaine; and I
     would move that the court would preclude the
     Commonwealth from introducing any evidence of cocaine
     on the basis that the Commonwealth cannot establish a
     chain of custody between an item that was taken from
     the defendant and to when it was analyzed.


The parties stipulated the circumstances from the time the

cocaine was taken from Brockett to the time it was submitted to

the laboratory for analysis.    Brockett moved the court to

suppress the certificate of analysis of the cocaine on the ground

that the Commonwealth could not establish a chain of custody.



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The court denied the motion and found the evidence sufficient to

establish an unbroken chain of custody.     On the basis of this

order, the trial judge admitted the certificate of analysis of

the cocaine.

     Brockett contends that the trial court erred in denying his

motion to dismiss the indictment.      He argues that because the

Commonwealth does not have the cocaine to admit into evidence and

because the chain of custody is broken, the Commonwealth cannot

prove beyond a reasonable doubt that he possessed the cocaine.

We disagree.
     The evidence showed a sufficient chain of custody.      "The

basic rule for admitting demonstrative evidence is that the

burden is upon the party offering the evidence to show with

reasonable certainty that there has been no alteration or

substitution of it.   But the burden is not absolute that 'all

possibility of tampering' be eliminated."      Robinson v.

Commonwealth, 212 Va. 136, 138, 183 S.E.2d 179, 180 (1971)

(citation omitted).   Officers Jackson and Mullen possessed the

seized cocaine from the time it was taken from Brockett until it

was packaged, sealed, and locked in locker number eight in the

property and evidence room.   Although Cover was unable to

testify, his function as evidence custodian was to preserve the

evidence and deliver it to the laboratory for analysis.      He

delivered the evidence to the laboratory.     Charles Fishell, an

employee of the laboratory, testified that he received the



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evidence from Cover, that the packages were sealed, and there was

no sign of tampering.   "In the absence of clear evidence to the

contrary, courts may presume that public officers have properly

discharged their official duties."      Robertson v. Commonwealth, 12

Va. App. 854, 856-57, 406 S.E.2d 417, 418 (1991).     The evidence

supports the conclusion that Cover properly performed his duty

and that there was no tampering with the evidence.     The chain of

custody was sufficient.
     Brockett next contends that the trial court erred in

accepting the January 26, 1994 order.     He argues the order does

not reflect the court's holding.    He asserts that his stipulation

of facts concerning the chain of custody was limited to the

hearing on his motion to dismiss the indictment and did not apply

to the determination of the admissibility of the cocaine.

     The record is clear that Brockett sought by his motion to

preclude the Commonwealth from introducing any evidence of the

cocaine.   He stipulated to the facts surrounding the chain of

custody for that purpose.    The stipulation was valid for that

purpose and the order properly set forth the trial court's

ruling.

     Finally, Brockett challenges the sufficiency of the evidence

to support his conviction.   He contends that discrepancies in the

testimonies of Jackson and Mullen render the Commonwealth's proof

inadequate.   We disagree.

     More than sufficient evidence linked Brockett to the



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cocaine.   Jackson found a napkin with three baggies of cocaine in

Brockett's rear pants pocket.   Jackson locked the cocaine in a

locker to which he had the only key.    Later, Jackson and Mullen

took the cocaine to police headquarters where it was sealed and

locked in evidence locker number eight.   Cover took the cocaine

to the laboratory for analysis.   Although the cocaine was

subsequently destroyed through inadvertence, the certificate of

analysis was properly admitted into evidence in its place.   This

evidence sufficiently supports Brockett's conviction of

possession of cocaine.
     We affirm the judgment of the trial court.

                                               Affirmed.




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