Jun 09, 2017 Virginia criminal defense – Avoid others getting contraband anywhere near you
Yesterday, the Virginia Supreme Court provided another example for the soundness of my warning about letting anybody in your car who might leave contraband there.
When police stop a car for an alleged moving violation, occupants possessing illegal drugs or unlawfully possessed weapons might have a penchant for throwing that contraband as far away from them as possible (and, in the process, towards other(s) in the car), to avoid a search that will turn up that contraband on them. When a person sees an unlocked car and feels law enforcement closing in on them, the person might ditch contraband in the unlocked car. When a person borrows a car, s/he might leave his or her contraband inside the car for later retrieval, so as not to be walking around with contraband.
Assuming that Joshua Charles Moseley was innocent of his conviction for two counts of burglary, he would have benefited nicely by following my advice to beware who has access to your car — and whose car you borrow, for that matter — rather than letting it be left parked in an apartment complex with the windows down, keys in the car, and, in the center console, jewelry that had been burglarized both around seven hours or more earlier, and two weeks earlier. Virginia v. Moseley, ___ Va. ___ (June 8, 2017). The car that Moseley regularly drove but did not own was caught in that scenario.
The scenario in the above paragraph does not sound like evidence sufficient to prove the two burglaries against Moseley beyond a reasonable doubt, even when considering that a police officer saw him in the same car on the same block as the first burglary within three hours after the burglary or two hours before the burglary, he had grocers’-suitable gloves in his pocket on a hot day, and a bill and his license were found in the car along with the jewelry. Clearly, Moseley was not the only person in the neighborhood of the first burglary on the date of that burglary. Clearly, people use such gloves for gardening and numerous other innocent reasons in the warm weather. Clearly, if Moseley had still been using the vehicle and left the windows open and his belongings therein, he was at risk of that the burglar might ditch the jewelry inside. Clearly, Moseley’s lawyers suggestion at trial that Moseley might no longer have been the main user of the car at the time the car was seized was not the only argument of reasonable doubt as opposed to the other’s above.
Guess again. The trial court nevertheless convicted Moseley at a bench trial, the Virginia Court of Appeals wisely reversed for insufficient evidence, but the Virginia Supreme Court in an opinion by the chief judge affirmed his conviction, with but one dissenter.
Virginia is the state where I both work and live. I am not proud at all about this wrongly-decided state Supreme Court case. However, my displeasure means little. The United States Supreme Court is not going to take up this case. The Virginia Supreme Court will not disturb Moseley, at least not for years to come. The statutory law is not going to be updated to fix the precedential damage done by Moseley, and no state Constitutional fix will be in the works either. Moseley’s conviction is final, and Moseley will be the damaging caselaw of the Commonwealth of Virginia for decades to come.
Here is the law confirmed by and basics we get from Moseley:
– One who possesses recently burglarized property can be convicted of the burglary.
– One who regularly uses a vehicle — even without owning that vehicle — can get convicted for contraband found in that vehicle, even if the contraband is found therein long after the regular user was ever seen inside the vehicle.
– Beware whom you let borrow your vehicle. Beware whom you let in your vehicle.
– For that matter, beware whom you are near at a party, a house gathering, or at a hotel or motel room. If the police enter and find any contraband there or in the car all of you are in, the police may dragnet everyone into a search and let the prosecutor and defense lawyers sort out the rest.
Welcome to Virginia, the Commonwealth whose state Supreme Court caselaw makes it too easy for the innocent to be convicted at trial.