(Posted June 8, 2017) The criminal defendants’ appellate losing streak continues today in the Supreme Court of Virginia’s only published opinion. Commonwealth v. Moseley involves convictions for burglary and larceny (two counts of each).

In June 2013, two homes in the City of Hampton, less than a mile apart, sustained burglaries. At around the time of the first one, a police captain drove past one of the homes and said that she “inadvertently ‘cut off’ another driver who was ‘pulling off the curb’” beside the victims’ home. The other car stopped and the captain got a good view of the driver, who turned out to be Moseley; he appeared startled. Because there had as yet been no report of a burglary, she let Moseley drive away.

On the day of the second burglary, a police officer responded to a report of an attempted burglary in the same neighborhood. The call described the suspect, and the officer soon spotted Moseley walking along a street. He fit the description, so a Terry stop ensued. Moseley had heavy knit gloves in his pocket on a June day. The officer arrested him.

Remember the police captain? She heard about the arrest on the police radio and decided to go to the police station. When she got there, she recognized the driver of the car she had cut off.

There’s one more factual component. The same day as the arrest, a tow-truck driver got a call to remove a seemingly abandoned car from the same neighborhood. The windows were down and the keys were inside. After towing the car, the driver started to inventory its contents. That’s when he found the marijuana, the old coins, the jewelry …

His boss told him to stop and call the police. An officer got a warrant and searched the car, finding all this stuff, including items that had been stolen from the two burglarized homes, in the glove compartment. He also found there Moseley’s ID. The materials were “all jumbled up … they were all just kind of mingled together.”

And that’s a wrap, the local prosecutor evidently felt before securing indictments. At trial, Moseley moved to strike. He contended that the Commonwealth didn’t prove that he had exclusive possession of the stolen goods, and without the exclusive-possession inference, there was nothing to prove that he committed the burglaries and the larcenies. The trial judge was unmoved; he allowed the evidence and convicted Moseley.

The Court of Appeals stepped in and reversed last year. A unanimous panel reversed. The CAV ruled that the presumption did not apply, and in the absence of the inference, found the circumstances suspicious but not proof beyond a reasonable doubt.

Now it’s the Commonwealth’s turn to appeal. Today, a year and a day after his victory in the CAV, Moseley learns that he’s headed for prison after all. The justices reinstate the conviction, finding that the circumstances, viewed as a whole, were sufficient to establish guilt beyond a reasonable doubt.

The Supreme Court’s approach is to assume without deciding that the inference didn’t apply. (The Commonwealth evidently conceded the point in oral argument in the CAV, so it seems best not to scale that mountain.) It then chides the Court of Appeals panel for examining each inculpatory fact in isolation, rather than as a whole.

There is, however, a dissent today. Justice Goodwyn argues that without the burglary inference, the evidence won’t cross the beyond-a-reasonable-doubt finish line.

Here’s the sum of the evidence, excluding the inference, taken from the majority opinion:

Moseley was seen “pulling off the curb” next to the Winsley residence during the window of time when that home was burglarized. Moseley was then arrested less than a month later in the area of a second burglary because he matched the description of the suspect in an additional attempted burglary. At the time of his arrest, Moseley possessed “heavy knit” freezer gloves even though June 17, 2013, was not “a particularly cold day.” Hours later, while he was in custody, a vehicle Moseley routinely drove was towed from an apartment complex where it sat abandoned with the windows down and keys inside. The center console of that vehicle contained various items stolen from both homes, which were commingled with two identification cards bearing Moseley’s name.

Justice Goodwyn believes that while these facts are suspicious, they don’t establish (in the absence of the inference) that Moseley was the person who actually broke into the homes. That matters a lot, because the punishment for, say, receiving stolen property is quite different from that for the more serious felony of burglary.