Anthony James Dockery v. Commonwealth of Virginia

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
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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.
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