dissenting. The sole issue presented on appeal from the Appellate Court is whether the trial court, in this prosecution for the illegal possession of narcotics with intent to sell, should have instructed the jury on the doctrine of “non-exclusive possession of the premises” in accordance with the defendant’s request to charge.1 The jury returned a verdict of guilty of the lesser included crime of illegal possession of narcotics and the defendant was sentenced to the maximum term of seven years. I find that the instruction should have been given, and would order a new trial on the illegal possession of narcotics.
I will not reiterate the detailed facts set forth in the majority opinion which the jury could have found. Nevertheless, some of the evidence will be repeated as it specifically relates to this issue.
The state was required to prove for conviction the element that the defendant had “possession” of the narcotics. General Statutes § 21a-279 (a).2 Such possession may be actual or constructive. State v. Williams, 169 *638Conn. 322, 335, 363 A.2d 72 (1975). Constructive possession is when the defendant knows of the character of the substance, knows of its presence and exercises dominion and control over it. State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990). In a case of constructive possession of the narcotics, the rule is “[w]here the defendant is not in exclusive possession of the premises where the narcotics are found, ‘it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.’ Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 901, 79 S. Ct. 221, 3 L. Ed. 2d 150 (1958); see generally annot., 56 A.L.R.3d 948 (1974).” State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985).
“ ‘A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . .’ ” State v. Allen, 216 Conn. 367, 386-87, 579 A.2d 1066 (1990), quoting State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). Accordingly, for the defendant to have been entitled to the “non-exclusive premises” instruction, there must have been evidence upon which the jury could find that (1) the defendant did not have exclusive possession of the premises where the narcotics were found, and (2) the state relied upon the defendant having constructive possession of the narcotics because they were not found on the person of the defendant.
The first requirement that the defendant did not have exclusive possession of the premises has been met. Although the Appellate Court characterized this case as “not a situation of nonexclusivity” of the premises where the narcotics were found; State v. Nesmith, 24 Conn. App. 158, 162, 586 A.2d 628 (1991); the majority *639of this court concedes that the premises including the back room were not in the exclusive possession of the defendant. Indeed, the apartment was well known to the police as a “shooting gallery” for narcotics, there were no locks on the doors, Bridgeport housing authority, the owner of the building in which the apartment was located, confirmed that it was vacant, and, at the time of the incident, there were between six and eleven persons in the front room.
The second requirement that the narcotics were not in the actual possession of the defendant has also been met. The state’s version of the facts confirms this and the trial judge specifically charged the jury on constructive possession.3 Thus, the defendant was entitled to the charge.4
*640The majority seems to justify the refusal to give the charge under either the state’s or the defendant’s version “because each [version] identifies the person discarding the drugs.” In other words, it is their claim that when there is evidence in which to draw an inference that the narcotics were in the possession of someone, the defendant would no longer have the right to the jury instruction. That sets the rule on its head. First, the only way it could be determined under either scenario that the narcotics came from the possession of the person is by drawing an inference. As the majority points out, “[i]t is undisputed that no drugs were found on the person of the defendant.” The rule, however, was designed to prevent the drawing of such an inference unless there were “other incriminating statements or circumstances tending to buttress such an'inference.” Second, as pointed out below, the statements or circumstances that would take it out of the rule and allow for the drawing of such an inference were factual determinations for the jury to make and not for the trial court, the Appellate Court or this court.
Third, the majority assumes that the jury was required to believe either the state’s version or the defendant’s version, but that is not the case. The jury *641had a right to determine whether the state’s witness had been telling the truth in whole, or in part, or whether the witness had been merely mistaken. State v. Alfonso, supra, 633-34. For example, it was for the jury to determine whether Officer Joseph Sherbo had been in fact telling the truth when he had testified that he had seen the defendant throw a “light colored object” against the concrete wall. It was also for the jury to determine whether the glassine envelopes Sherbo had found containing the heroin were in fact what the defendant had thrown down in this vacant apartment. It is conceivable that the jury could have determined that the drugs had not come from the person of the defendant, but concluded that he had possession on the basis of the trial court’s instructions on constructive possession.
Finally, the defendant was entitled to the instructions because he had also been charged with possession of cocaine, which had been found only in the plastic vials on the floor of the back bedroom.5 Sherbo had conceded that it was possible that these vials had not been thrown there by the defendant because when Sherbo had seen the defendant drop the object against the concrete wall, he had not heard a sound. Thus, the defendant’s only connection to the cocaine had been his presence in the back room where the vials had been found. Because of this alone, the defendant was entitled to the jury instruction on nonexclusive possession of the premises, even under the majority’s application of the rule. It is clear that a defendant is “ ‘ “ ‘entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . ” State v. Havi*642can, 213 Conn. 593, 597, 569 A.2d 1089 (1990), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).
The majority attempts to distinguish State v. Alfonso, supra. Alfonso involved a determination of whether “the evidence adduced at trial was insufficient to support a finding of guilty beyond a reasonable doubt.” Id., 633. In order to make that determination, this court applied the “non-exclusive possession of the premises” rule. The majority relies upon the statement in State v. Alfonso, supra, 634-35, that “the state offered no supporting evidence that would have justified an inference that the defendant possessed the marihuana.” This statement in Alfonso, however, had to do with a determination of whether there had been “other incriminating circumstances tending to buttress such an inference” that would have allowed a conviction for possession of narcotics when the defendant had not been in exclusive possession of the premises and the state could have proven only constructive possession of the narcotics.
In the present case, we are considering whether the jury instruction should have been given and not whether the substantive rule should be applied in order to determine the sufficiency of the evidence. If the instruction on the rule of the nonexclusive possession of the premises had been given, surely, the jury could have reasonably drawn an inference of possession of the narcotics because it could reasonably have found that the actions of the defendant constituted “other incriminating circumstances tending to buttress such an inference.” That, however, is a jury issue to be determined only after it had the guidance of an instruction on the law of nonexclusive possession of the premises.
The failure to give the nonexclusive possession instruction, combined with the court’s instruction on *643constructive possession and the concession that the defendant did not have the exclusive possession of the premises where the narcotics were found, makes it reasonably probable that the error was prejudicial. State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988).
Accordingly, I respectfully dissent.
The defendant submitted in a timely manner the following request to charge: “In this connection I must explain the rule of law known as the doctrine of non-exclusive possession. That rule is this:
“Where Mr. Nesmith is not in exclusive possession of the place, here the apartment, where the heroin and cocaine is found, you may not conclude that he knew of its presence and that he had control of them, unless he made some incriminating statement, or unless there are some other circumstances which tend to support a conclusion or buttress such an inference. State v. Hill, 201 Conn. 505, 514-16 [523 A.2d 1252] (1986); State v. Alfonso, 195 Conn. 624, 633 [490 A.2d 75] (1985); Devit & Blackmar, Federal Jury Practice & Instruction, Sections 16.07, pp. 512-13 (3rd Ed. West 1977); Borden & Orland, 5 Connecticut Practice Criminal Jury Instructions, Sections 15.2, 15.3, pp. 400-402, 410-13.”
See footnote 1 of the majority opinion.
The court instructed the jury on constructive possession as follows: “Possession may be actual or constructive. Possession, whether it is actual or constructive, may be proven by either direct or circumstantial evidence. Keep in mind that possession of cocaine and/or heroin here and not ownership is all that is required.
“Actual possession is established if it is shown that the defendant had actual physical possession. Constructive possession is established if it is shown that the defendant exercised dominion and control over the cocaine and/or the heroin and had actual knowledge of its presence. Remember that constructive possession requires a showing of two things: Control and knowledge.
“A simple example of constructive possession which is by no means intended as an exclusive example is that for instance, when I arrived here in the courthouse this morning, I came in carrying my briefcase. That briefcase was in my actual possession as I carried it from my car to my chambers. Although I did not carry it here into the courtroom with me, it is still in my constructive possession. It is my property. It is located in my chambers and I continue to exercise dominion and control over it.”
An example of a jury charge on nonexclusive possession of the premises is as follows: “Whether the defendant had possession of the substance in this case is a question of fact for you to decide, and you may, as I have told you, draw reasonable and logical inferences from the evidence.
“(In this connection, there is another rule of law of which you must be aware. That rule is this: WTiere the defendant is not in exclusive possession of the premises where the narcotics are found, you may not infer that he knew of their presence and that he had control of them, unless he made *640some incriminating statement, or unless there are some other circumstances which tend to support such an inference.
“(Therefore, if you find that the defendant was not in exclusive possession of the premises where the narcotics were found, in order to infer that he knew of their presence, and that he was in control of them, you must also find that he made an incriminating statement or that there are other circumstances which tend to support that inference.
“(If, however, you find, from all the facts and circumstances, that the defendant was in exclusive possession of the premises where the narcotics were found, you may also infer that he knew of their presence there and that he had control of them. In that situation, in order to infer that he knew of their presence and that he was in control of them, you do not have to find that he made some incriminating statement or that there are other circumstances which support that inference.)” (Emphasis in original.) 5 Connecticut Practice, D. Borden & L. Orland, Connecticut Criminal Jury Instructions (1986) § 15.2.
The substitute information charged that “at or about 7:15 p.m. at Apartment 104, Building 31, Father Panik Village, Bridgeport, [the defendant] did unlawfully possess ... a certain narcotic substance, to wit: Heroin and Cocaine . . . .” (Emphasis added.)