Court of Appeal for Ontario
Watt, Pepall and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Daniel Charlton
Appellant
Ernest J. Guiste and Michelle L. Velvet, for the appellant
Matthew Asma, for the respondent
Heard: April 27, 2015
On appeal from the conviction entered on April 26, 2011 and the sentence imposed on June 28, 2011 by Justice Terrence P. O’Connor of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1There was a knock on the door of a family home late one night. The family’s 15 year old boy answered. Three masked men forced their way into the home by jabbing the muzzle of a sawed-off shotgun into his stomach. They bound his wrists with packing tape, ransacked the house and stole electronics, two televisions, video games and the keys to the family Mercedes. Two left with the car. The third went out the back door. The victim described the intruders as roughly six feet tall, athletic build, and black. He heard them use nicknames: “Slim”, “A.K.” and “B-Boy”.
2A nearby police officer responding to the radio call about the home invasion saw a man going to a townhouse complex carrying a big-screen TV. The man dropped the TV. When the officer tried to intercept him, the man ran. He got away. The police then received confidential information that led them to obtain a search warrant for the appellant’s home. In his bedroom, police found stolen video games and electronics, including the victim’s iPod with the young victim’s own markings on the back. They also found a backpack and balaclava similar to ones used by the robbers, the same sawed-off shotgun used in the robbery, and a loaded revolver.
3The trial judge convicted the appellant of multiple counts relating to the robbery, the confinement and the firearm. The appellant argues that the trial judge made several legal errors and that the verdicts are unreasonable. The multiple grounds of appeal can be somewhat grouped into three broad grounds:
There was insufficient evidence of identity—the primary issue at trial;
The trial judge misapprehended or failed to consider important evidence;
The trial judge erred in law.
Identity:
4The trial judge’s determination of identity was based on the following evidence:
The appellant lived in a townhouse less than three blocks from the victim’s house.
Minutes after the robbery, a police officer saw a man in black clothing and a hooded sweatshirt, running with a television toward the appellant’s townhouse complex.
The appellant fit the general physical description given by the victim.
The victim heard one of the robbers referred to as “B-Boy.” There was evidence that “D-Boy” was seen written over the appellant’s bed-room door when it was searched by police a week later. Defence witnesses admitted the appellant was sometimes referred to by his peers as “D-Girl” or “D-Bitch”.
All the robbers had their faces covered: one wore a black balaclava with red trim; one wore a Halloween mask; and one wore a dark face-covering that the victim could not clearly describe because it was shaded by a hood. When the appellant’s room was searched by police, there was a balaclava in his closet. It was gray with red trim. The appellant admitted this belonged to him. His DNA was on it. The appellant claimed he had not worn it in years, however it was found on the top of a jumble of clothing on his closet shelf.
The victim identified the shotgun found in the appellant’s bedroom as the one used in the robbery.
Items stolen in the robbery (small electronics, video games) were found in the appellant’s room distributed among his own things.
5The appellant submits that once the trial judge accepted the evidence of the victim, he was obliged to find that the intruder was called “B-Boy” and not “D-Boy.” There was thus, according to the appellant, no evidence connecting the appellant to the robbery because he was not “B-Boy”. On this issue, the trial judge said:
The street name of “B-Boy” is similar to the name “D-Boy” found by the police written on the doorframe of [the appellant’s] bedroom. This difference could be attributable to [the victim] mishearing what men said because they were keeping their voices low and were talking through masks.
6There was evidence that the robbers spoke with low voices. It was reasonable for the trial judge to infer that the victim mistook “B-Boy” for “D-Boy”. Having accepted the victim’s evidence generally, the trial judge was not obliged to find that it was “B-Boy” not “D-Boy” who entered the home: a finder of fact is entitled to accept some, none or all of a witness’s evidence. In our view, it was open to the trial judge to infer from this circumstantial evidence that one of the perpetrators was the appellant.
7The appellant submits that there was no finding by the trial judge of control or possession of the items in the bedroom. We disagree. The trial judge found as a fact that the appellant knew the items were in his room. He was entitled to rely on the doctrine of recent possession.
Misapprehension and failure to consider evidence
8The appellant submits that the trial judge misapprehended parts of the evidence including: the balaclava found in the appellant’s closet which was worn by the robber; which robber left through the backdoor; and the whereabouts of the appellant’s son in the days before the search of the appellant’s home.
9He further submits that the trial judge failed to consider the evidence of the appellant’s height (with or without shoes), the effect of the appellant’s childcare responsibilities on his attendance at school and his extracurricular activities; and evidence that showed police animus towards the appellant.
10In our view, there was no misapprehension.
11The appellant’s balaclava, found in the vicinity of the shotgun and the stolen property, supported the inference that the appellant was one of the robbers. The balaclava was similar to the black one described by the victim. The trial judge was entitled to consider it, along with the other physical evidence, the victim’s description of the robbers and the nickname.
12The evidence as to which robber left through the back door was not a material fact in the judge’s reasoning. The trial judge did not misapprehend or fail to consider material evidence.
13It is conceded by the Crown that the trial judge misapprehended part of the evidence: the appellant’s child was staying with the appellant and his mother in Mississauga and was not being brought from Brampton. This was not a material issue. In his credibility assessment, the trial judge considered that the appellant and his mother contradicted each about several additional issues. The trial judge was entitled to consider these contradictions in his credibility analysis, and to cite the appellant’s forgetfulness respecting almost all details of his activities at the time of the robbery and the search – including his child care responsibilities.
14The appellant argued that the police had planted the firearm and stolen items in his room. The trial judge flatly rejected this theory. He also found that there was no evidence of police animus against the appellant. There was evidence that the police had well-founded grounds for investigating the appellant. The evidence of police animus came from the appellant and his mother. Both were disbelieved by the trial judge. In our view the trial judge did not misapprehend the evidence.
Errors in law
15The appellant submits that the trial judge erred in law by interrupting defence counsel’s closing submissions on the “D-Boy” writing on the doorway to the appellant’s bedroom; and by reversing the onus of proof contravening D (W).
16When defence counsel was presenting reply submissions in the final arguments, the trial judge told him that he did not accept the evidence about the sign of “D-Boy” on or over the appellant’s bedroom door. But, in his reasons, he accepted it. In our view this did not render the trial unfair or constitute an error of law. First, the trial judge received full written submissions on the issue of the
“D-Boy” sign. Second, there is no evidence that anything more could have been said on the issue that had been fully argued so that there was no prejudice to the appellant.
17Nothing in the record indicates that the trial judge did not correctly apply
D. (W) or reverse the onus of proof.
18The appeal is dismissed. It is therefore not necessary to address the appellant’s request for a stay of prosecution which was contingent on an order for a new trial.
“David Watt J.A.”
“S.E. Pepall J.A.”
“M.L. Benotto J.A.”