Moseley v. Commonwealth
| Decision Date | 07 June 2016 |
| Docket Number | Record No. 0881-15-1 |
| Parties | JOSHUA CHARLES MOSELEY v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
UNPUBLISHED
Present: Judges Decker, Russell and Senior Judge Felton
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William H. Shaw, III, Judge Designate
Kimberly Karle, Deputy Public Defender, for appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Joshua Charles Moseley appeals his convictions for two counts each of breaking and entering in violation of Code § 18.2-91 and grand larceny in violation of Code § 18.2-95. On appeal, he contends that the evidence was insufficient to prove that he was the person who committed the crimes. Based on our review of the record, viewed under the applicable standard, we agree with the appellant. Accordingly, we reverse the convictions.
On June 3, 2013, Mary Ann and John Winsley resided at 5 Wilderness Road in Hampton, located at the intersection of Wilderness Road and El Paso Court. Mrs. Winsley, the last person to leave the residence that day, locked the doors to her home and left at about noon. WhenMr. Winsley returned home shortly after 5:00 p.m., he noticed that the frame of the side door to the garage was broken. Various articles of jewelry and collectible currency in bill and coin form were missing from the home.
Captain Susan Canny of the City of Hampton Police Division lived just around the corner from the Winsleys on El Paso Court, a short cul-de-sac. On the day of the burglary at the Winsley residence, Canny came home from work around 3:00 p.m. As she drove down the Winsleys' street, she "cut the corner" from Wilderness onto El Paso. As she did so, a vehicle coming toward Wilderness stopped for her because she was in its lane of travel and she almost hit it. When asked to explain "how far [the other car] was" from 5 Wilderness Road, she said the vehicle "was against 5 Wilderness Road" on El Paso and "looked like he was pulling off the curb there coming onto El Paso to come on out to Wilderness." Canny testified that she had a clear view of the driver and took special notice of him because the cul-de-sac was small and "[e]verybody kn[ew] everybody," including the residents on the corner of Wilderness and El Paso. Canny later identified the driver of the vehicle as the appellant after seeing him again two weeks later. Canny gave no description of the vehicle he was driving.
On June 17, the appellant was found walking in the vicinity of an attempted burglary in Canny's neighborhood. Officer Eric Rausch responded to a call concerning an attempted burglary at 314 Beauregard Heights. He had received a description of the person who was seen in the area. The officer located the appellant, who matched this description, on East Little Back River Road in the area of Beauregard Heights. Although it was not a cold day, the appellant had a pair of "heavier knit glove[s]" in his pocket. Officer Rausch testified that the gloves looked like those used by grocery store workers to handle frozen foods. The appellant told the officer that the gloves were his "workout gloves." Officer Rausch indicated that the appellant's clothingwas "consistent with workout attire" because he was wearing athletic shoes, shorts, and a "workout shirt." The officer arrested the appellant sometime prior to 4:45 p.m. that day.2
Additional evidence established that a completed burglary occurred in the same neighborhood that day. That burglary was committed at 83 Fort Worth Street, where Sarah Ellis lived with her parents. Ellis left the house after her parents, around 10:00 a.m. When she left, all the doors and windows were secured except the patio door, which Ellis forgot to lock. When Sarah's father, Jonathan Ellis, came home around 3:30 p.m., the patio door was unlocked and the garage was open. He saw that his wife's and daughter's jewelry boxes had been emptied.
At 10:30 p.m. on June 17, the day of the burglary at 83 Fort Worth and the attempted burglary at 314 Beauregard Heights, tow truck driver Robin Shuffler received a call to tow a white "Crown Victoria" from the Willow Oaks Apartments, which were located "by Gosnolds Hope Park right across from Little Back River Road."3 When Shuffler arrived, the windows of the vehicle were down and the keys were inside. After Shuffler towed the vehicle back to his company's lot, he saw money in the center console. Following company policy, he began to inventory the vehicle. In the course of that process, he found a bag of jewelry and some marijuana. At that point, he notified his supervisor, who called the police.
Detective Corporal Erik Rummel executed a search warrant for the white Crown Victoria. In the vehicle's glove box was an electric bill dated March 28, 2013, and bearing the appellant's first and last names. Rummel also searched the center console, which he described as"jumbled and messy" with the items "mingled together."4 Inside the console he found a jewelry box that contained a small bag of suspected marijuana. Underneath the jewelry box was a bag that contained jewelry. Also in the console beneath the jewelry box were a Virginia state identification card and a library card, each of which bore the appellant's name.5 Another personal item in the console was a cellular telephone, which was not linked by the evidence to any particular individual. Additionally, the console contained rare coins and paper currency. At trial, the Winsleys and the Ellises identified photographs of the items found in the vehicle as depicting items that had been stolen from their homes in the two burglaries.
Detective Rummel later determined that the registered owner of the white Crown Victoria was Kelton Adams-Elkins. Although no evidence indicated a relationship between the registered owner and the appellant, additional evidence established that the appellant routinely drove the vehicle. Melissa Cooke testified that she was familiar with the car operated by the appellant through her duties as a property manager for Hampton Creek Apartments. She identified a photo of the Crown Victoria and testified that she had seen the appellant driving it "[p]retty much on a daily basis" for the "several month[s]" during which he had resided at the apartment complex. Cooke could not remember exactly when the appellant had lived there. However, she testified that the address on the electric bill found in the car's glove compartment, dated March 28, 2013,was located in the Hampton Creek Apartments. No evidence established where the Hampton Creek Apartments were in relation to the location from which the Crown Victoria was towed.
During the appellant's motions to strike, counsel argued that the Commonwealth failed to prove that he had ever possessed the stolen items that were found in the Crown Victoria. As a result, counsel maintained that the Commonwealth had not made the necessary showing of recent possession of stolen property to support an inference that the appellant committed the burglaries and larcenies.
The trial court denied both motions and found the appellant guilty of the charged offenses. In doing so, it noted that the stolen property found in the vehicle that the appellant had been seen driving was "mixed up together" with the appellant's identifying documents. It concluded that this fact disproved the appellant's theory that "somebody else did it."
After trial, the appellant filed a motion to set aside the verdicts, again asserting that the Commonwealth did not establish that the appellant was in exclusive possession of the stolen property. He also argued that absent the inference, no other evidence linked him to the crimes. At a hearing on the motion, the trial court noted that a police witness had seen the appellant in the vicinity of the burglary committed at the Winsley residence on June 3 and that Melissa Cooke had seen him driving the car in which the stolen property had been found. The court took the matter under advisement and later denied the appellant's motion to set aside the verdict.
The appellant was sentenced to ten years in prison for each of the four offenses, with thirty-four of the forty years suspended.
The appellant contends that the evidence was insufficient to support his convictions for burglary and grand larceny because it did not establish that he was the person who committed the crimes. He suggests that the Commonwealth did not prove that he had exclusive possession ofrecently stolen property, as required to permit application of the inference that he was the perpetrator. The Commonwealth counters that even without the larceny and burglary inferences, the circumstantial evidence was sufficient to prove that the appellant committed the offenses.
When the sufficiency of the evidence is challenged on appeal, the Court reviews the evidence in the light most favorable to the prevailing party at trial, in this case the Commonwealth. E.g., Grimes v. Commonwealth, 288 Va. 314, 318, 764 S.E.2d 262, 264 (2014). Determining the credibility of the witnesses and the weight afforded their testimony are matters left to the fact finder, who has the ability to see and hear them as they testify. E.g., Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998). On appellate review, this Court asks only if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The appellate court will not set aside the trial court's judgment unless, viewed under this standard, the judgment is "plainly wrong or without evidence to support it." Grimes, 288 Va. at 318, 764 S.E.2d at 264 (quoting Code § 8.01-680).
"Furthermore, we 'accord the...
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