PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and
Kelsey, JJ., and Russell, S.J.
W. LEMONS, CHIEF JUSTICE
THE COURT OF APPEALS OF VIRGINIA
appeal, we consider whether the Court of Appeals of Virginia
erred in concluding that the evidence was insufficient to
sustain a defendant's convictions for breaking and
entering and grand larceny.
Facts and Proceedings
Charles Moseley ("Moseley") was tried by the
Circuit Court of the City of Hampton ("circuit
court") upon an indictment charging two counts of
breaking and entering, in violation of Code § 18.2-91,
and two counts of grand larceny, in violation of Code §
18.2-95. Following a bench trial, Moseley was convicted on
all four counts and sentenced to forty years'
imprisonment, with thirty-four years suspended.
trial, the Commonwealth presented evidence that on June 3,
2013, between noon and 5:15 p.m., a burglary occurred at John
and Mary Ann Winsley's home located on Wilderness Road in
Hampton, Virginia. Mr. Winsley testified that when he
returned home from work the door leading into his garage was
broken open. Mr. Winsley called police, who then dusted for
fingerprints while he and his wife inventoried their missing
items. Among other things, the Winsleys testified that their
collection of rare coins and paper currency was missing.
Susan Canny of the Hampton police department testified that
she drove past the Winsley residence at around 3:00 p.m. on
June 3, 2013. As she drove past, Captain Canny inadvertently
"cut off" another driver who was "pulling off
the curb" next to the Winsley property. The other
vehicle stopped and Captain Canny testified that she had a
"nice clear view" of the driver, whom she later
identified as Moseley. Captain Canny took notice of Moseley
because she lived nearby, and the residents of the community
"watch out for everybody." She testified that
Moseley "looked startled when he saw [her]."
Ellis testified that on June 17, 2013, two weeks after the
first burglary, his home located on Fort Worth Street was
burglarized between 10 a.m. and 3:40 p.m. Mr. Ellis testified
that when he returned home from work he discovered the back
door was unlocked. Inside, Mr. Ellis found his video games
strewn across the living room floor and his wife and
daughter's jewelry boxes overturned in their bedrooms.
Mr. Ellis testified that various pieces of jewelry were
missing from those boxes.
Eric Rausch of the Hampton Police testified that on that same
day he responded to a call regarding an attempted burglary in
the Beauregard Heights area of Hampton. Officer Rausch
testified that the caller described the subject as "a
black male wearing a gray T-shirt, black shorts, in his
mid-to-late 20s." When Officer Rausch arrived in the
area, he observed Moseley walking down East Little Back River
Road. Moseley fit the caller's description, so Officer
Rausch stopped and spoke with him. June 17, 2013, was not
"a particularly cold day, " but Moseley was
carrying a pair of "heavier knit glove[s]" in one
of his pockets. Officer Rausch testified that the gloves were
similar to those worn by "grocery store workers [when]
moving frozen foods back and forth." Moseley told
Officer Rausch "that they were his workout gloves."
Officer Rausch took Moseley into custody.
Canny testified that she heard the report of the attempted
burglary over her police radio. The report indicated that the
attempted burglary took place at the corner of Wilderness and
Beauregard Heights, which was behind her home. Captain Canny
was "very concerned about the burglaries in the area,
" so she went to the police station to speak with the
detectives. When she arrived, Captain Canny immediately
recognized Moseley as the man she had seen pulling away from
the Winsley residence two weeks earlier.
approximately 10:30 p.m. on June 17, 2013, tow truck driver
Robin Shuffler received a call to tow a white 1990 Crown
Victoria away from Willow Oaks Apartments, which was
"right across from Little Back River Road." When he
arrived, Shuffler observed that all four of the vehicle's
windows were down and the keys were inside. Shuffler towed
the vehicle to a secure lot, where he began to inventory its
contents. As he was inventorying, Shuffler discovered a
"bag of jewelry and some marijuana, " which
prompted him to call his boss. Shuffler's boss told him
not to disturb anything, and the police were contacted the
Corporal Erik Rummell testified that the next morning, on
June 18, 2013, he executed a search warrant for the interior
of the white Crown Victoria. Detective Rummell testified that
the glove box contained an electric bill, which was addressed
to Joshua Moseley and dated March 28, 2013. In addition, the
center console of the vehicle contained: 1) Moseley's
Virginia identification card, 2) Moseley's Portsmouth
library card, 3) a box of suspected marijuana, 4) a bag of
jewelry, and 5) various paper bills and coins, some of which
were in protective sleeves. According to Detective Rummell,
the "stuff [was] all jumbled up . . . they were all just
kind of mingled together." The Winsleys and the Ellises
confirmed that several of the items found in the console had
been stolen from their homes in the two burglaries.
Cook, the property manager of the address listed on
Moseley's electric bill, testified that she had seen
Moseley driving the vehicle "on a regular basis."
Cook explained that Moseley drove the car "[p]retty much
on a daily basis for the time that [he] stayed there."
Nevertheless, Cook was unable to recall the specific dates or
the period of time during which she had seen Moseley driving
the car. On cross-examination, Detective Rummell acknowledged
that the white Crown Victoria was not registered to Moseley,
but was instead registered to Kelton Adams-Elkins.
moved to strike the evidence at the close of the
Commonwealth's case-in-chief and again at the close of
all of the evidence. He argued that the Commonwealth failed
to prove that he possessed the stolen items found in the
Crown Victoria, and therefore the Commonwealth was not
entitled to the inference that he committed the larcenies and
burglaries. Moseley argued that he could have sold the
vehicle to Kelton Adams-Elkins, the registered owner at the
time of trial, in the time since Cook had seen him driving it
on a regular basis. Moreover, because the windows were down,