DATE: 20040628

DOCKET: C41365

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – JESUS FRANCISCO VALLE (Appellant)

BEFORE: LASKIN, FELDMAN and BLAIR JJ.A.

COUNSEL: Nicholas A. Xynnis for the appellant

Christine Tier for the respondent

HEARD: May 10, 2004

RELEASED ORALLY: May 10, 2004

On appeal from the convictions entered by Justice Jack Grossman of the Ontario Court of Justice dated October 21, 2003.

E N D O R S E M E N T

[1] The appellant was convicted of assault and assault carrying a weapon. The complainant alleged that the assault occurred in the course of being extorted for a drug debt, but the appellant was acquitted on three counts related to the extortion.

[2] The appellant advances two grounds of appeal against his convictions. First, he submits that the verdicts were inconsistent. Second, he submits that the trial judge misapprehended the defence witness, Pelusso’s evidence. We do not agree with either submission.

[1] On the first ground, the verdicts are not violently at odds. The trial judge had confirmatory evidence of the assault and a detailed description of the gun. He was therefore satisfied beyond a reasonable doubt that the complainant was beaten up and that the appellant was carrying a weapon. Conversely, the complainant’s evidence that he had been accused of stealing from the co-accused’s mother arguably gave rise to reasonable doubt on the extortion charges. Although these charges were not particularized in the information, on the Crown’s theory they were based on a drug debt. The trial judge was therefore entitled to have a reasonable doubt on these charges.

[2] On the second ground, the trial judge obviously gave little or no weight to Mr. Pelusso’s evidence and we see no error in his doing so. Mr. Pelusso testified that he did not see any injuries on the complainant. But the complainant called the police the night he was injured and had a bruised eye and a fat lip. Thus, either Mr. Pelusso did not see him that night, was talking about a different night altogether, or was not being truthful. Although the trial judge might have been more explicit in saying that Mr. Pelusso’s evidence did not give rise to a reasonable doubt, we are not persuaded that he misapprehended his evidence.

[3] Accordingly, the appeal against the convictions is dismissed.

“John Laskin J.A.”

“K. Feldman J.A.”

“R.A. Blair J.A.”