COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, Haley and Beales 

Argued at Chesapeake, Virginia 

ALFRED LEE SPIVEY 

 MEMORANDUM OPINION* BY 

v. Record No. 1913-06-1 JUDGE D. ARTHUR KELSEY 

DECEMBER 27, 2007 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Dean W. Sword, Jr., Judge 

Stacie A. Cass, Assistant Appellate Defender (Office of 

the Appellate Defender, on briefs), for appellant. 

Karen Misbach, Assistant Attorney General II (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

On appeal, Alfred Lee Spivey challenges the evidentiary sufficiency of his conviction for 

possession of heroin in violation of Code § 18.2-250. The evidence at trial proved that a police 

officer found Spivey slumped over in the passenger seat of a vehicle with a syringe in one hand 

and a heroin capsule in the other. He had blood on the back of his left hand from a puncture 

wound. Spivey was unconscious. The officer arrested the intoxicated driver of the vehicle (who 

said he did not know Spivey) and called for medics to attend to Spivey. The medics arrived and 

revived Spivey. The officer searched the vehicle and found three more syringes under the 

driver’s seat. Spivey was charged with possessing the heroin capsule in his hand. 

A suspect’s actual, physical possession of drugs permits the inference that he knowingly 

possessed them aware of their illegal nature and character. See Hunley v. Commonwealth, 30 

Va. App. 556, 562, 518 S.E.2d 347, 350 (1999); Armstrong v. Commonwealth, 29 Va. App. 102, 

114, 510 S.E.2d 247, 252-53 (1999); Hamilton v. Commonwealth, 16 Va. App. 751, 754, 433 

 

*

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
- 2 -

S.E.2d 27, 29 (1993); Josephs v. Commonwealth, 10 Va. App. 87, 101, 390 S.E.2d 491, 498-99 

(1990) (en banc). “When the drugs are found in the actual, physical possession of the accused, 

knowledge of where they were and the defendant’s assertion of dominion are virtually 

incontrovertible; such possession is also evidence that the accused knew what he possessed.” 

Ronald J. Bacigal, Virginia Practice Series: Criminal Offenses & Defenses 166 (2007-08) 

(emphasis in original); see also State v. Reid, 566 S.E.2d 186, 192 (N.C. Ct. App. 2002) (stating 

that the “knowing possession” element can be inferred from “actual possession”). 

Spivey acknowledges this inference but claims the trial court, sitting as factfinder, should 

have rejected the inference and adopted the alternative hypothesis that someone (perhaps the 

drunken driver) put the heroin capsule in Spivey’s hand while he was unconscious (thus negating 

any inference of knowing possession). This hypothesis of innocence, however, was never raised 

in the trial court, Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) 

(limiting appellate review only to hypotheses of innocence “advanced by the accused at trial”), 

relies solely on the “imagination of defense counsel” rather than any specific evidentiary support, 

Walker v. Commonwealth, 42 Va. App. 782, 793, 595 S.E.2d 30, 35 (2004), and could have been 

rejected by the factfinder in any event, Haskins v. Commonwealth, 44 Va. App. 1, 8-10, 602 

S.E.2d 402, 405-06 (2004) (characterizing the reasonableness of the hypothesis of innocence as a 

question of fact subject to deferential appellate review).1

We affirm Spivey’s conviction for possession of heroin in violation of Code § 18.2-250. 

 Affirmed.

 

1

 “The Commonwealth is not required to prove that there is no possibility that someone 

else may have planted, discarded, abandoned or placed the contraband where the contraband is 

discovered.” Kromer v. Commonwealth, 45 Va. App. 812, 819, 613 S.E.2d 871, 875 (2005) 

(citation and brackets omitted); see also Kelly v. Commonwealth, 41 Va. App. 250, 260-61, 584 

S.E.2d 444, 449 (2003) (en banc).