WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 2024-07-09 Docket: C69005

van Rensburg, Sossin and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

J.F. Appellant

Counsel: Maija Martin and Stephanie Brown, for the appellant Raoof Zamanifar, for the respondent

Heard: January 19, 2024

On appeal from the convictions entered on January 15, 2020 by Justice Fergus C. O’Donnell of the Ontario Court of Justice.

van Rensburg J.A.:

1The appellant was charged with 14 offences alleged to have taken place in January 2018 while he was in an intimate relationship with the complainant. The charges arose out of two alleged episodes of violence against the complainant and a search of the appellant’s home pursuant to a warrant after his arrest on the initial charges.

2After a judge alone trial, the appellant was acquitted of aggravated assault in relation to the first incident of violence against the complainant, pointing a handgun at the complainant, and possession of a switchblade. He was convicted of ten offences: assault, two counts of assault with a weapon, sexual assault, forcible confinement, and uttering death threats (all in relation to the second incident of violence), and four counts of careless storage of a firearm. The appellant received a custodial sentence of 15 months for which he received full credit as a result of time spent under house arrest bail conditions, and a conditional sentence of three months on each of the careless storage charges to be served concurrently to each other.

3The appellant appealed both his conviction and sentence. He filed a notice of abandonment of his sentence appeal.

4For the reasons that follow, I would dismiss the conviction appeal.

Facts

5The appellant and the complainant were involved in an intimate relationship for several months in late 2017 and early 2018. The first alleged incident of violence against the complainant occurred at her home, while she and the appellant were in her bedroom and three of her roommates were present in the house. The complainant testified that she and the appellant were arguing, and that when she tried to leave the room the appellant grabbed her by the throat and threw her on the bed, causing her to lose consciousness. She woke up with the appellant’s hand in her mouth and he told her she had had a seizure (she had not had one before or since). The complainant was unsure precisely when this incident occurred, and there were no photos of her injuries.

6The appellant testified that he and the complainant had been lying in bed talking, when the complainant stopped responding and started having a seizure, and that he placed his knuckle between her teeth to make sure she did not bite her tongue. He left the room to get the complainant some water, told her brother she had had a seizure, and asked him to ensure she was monitored that evening. The appellant denied any assault or attempt to confine the complainant to her bedroom.

7The second incident occurred at the appellant’s house on January 27, 2018, a few days after the first incident. The complainant and the appellant had been arguing by text about whether the appellant had deleted from his cell phone details of a call with his ex-girlfriend (who is the mother of his child).

8The complainant testified that she had gone to the appellant’s house to retrieve her property after she decided to end the relationship. She said that she had a limited recollection of what happened that day because she had been trying to forget. She testified that, over a number of hours, she was assaulted and prevented from leaving the appellant’s bedroom. He choked her with his hands until she passed out, hit her face and body, hit her in the face with her cell phone, and tried to remove her clothes, eventually penetrating her with his fingers. The appellant went into a closet in the bedroom, and she heard him load a handgun. With the gun in hand, he threatened to kill them both. The appellant told the complainant that bad things would happen if she went to the police. After unloading the gun he put it back in the closet under some clothes, and eventually he let her leave the house.

9The text messages between the two indicated that the complainant left the appellant’s house before 5:43 p.m. According to the evidence of her roommate, she arrived home around 7 p.m., crying and with injuries to her face. The roommate convinced the complainant to go see her boss, who was a retired police officer, and from there they went to the police station where the police took photos of her injuries. The photos showed bruises on her nose, lip, and neck, and petechiae (small red dots) on her eyelids.

10The appellant denied the complainant’s account of the second incident. He testified that the two were lying on the bed in his room after returning from breakfast at a Cora’s restaurant. He recalled that the complainant suspected him of pursuing a relationship with her co-worker. With his agreement, she used his cell phone to communicate with the co-worker by text, pretending she was the appellant, and allayed her fears. The appellant testified that at one point he left to walk his dogs and used that time to reflect on his relationship with the complainant and how it was causing him to ignore his relationship with his son. Upon returning, he told the complainant he had decided to break up with her, and she was upset and angry. She threatened that he would never see his son again and that she would make sure he got sent to jail. The appellant denied having tried to prevent the complainant from leaving his house, injuring her, and threatening her with, or even showing her, the handgun. He said he called the police after she left the house because he wanted a “second opinion” about what to make of the threats directed at him by the complainant, and a staff sergeant told him he should have nothing to worry about. There was no phone record of this call.

11After arresting the appellant for the two incidents of violence against the complainant, the police obtained and executed a search warrant at the appellant’s house. They found an unsecured, restricted handgun and ammunition under clothes in an armoire in the closet of the appellant’s bedroom. They also found several long guns and ammunition, including two restricted semi-automatic weapons, in an unlocked basement room. The appellant testified that the guns were lying outside the gun safe, and were without trigger locks, because he was planning to go to the gun range the next day and he had started preparing his guns for transport.

The Reasons for Decision

12After setting out the contradictory accounts of the complainant and the appellant, the trial judge discussed the importance and difficulty of making findings of credibility and reliability. He examined various text messages between the two, noting that the texts demonstrated a dysfunctional relationship with significant trust issues, but did not provide a “smoking gun”.

13The trial judge then assessed the credibility and reliability of the complainant and the appellant. He found that, for the most part, they both presented in a rational, plausible fashion, with each able to point to parts of their text communications that supported their version of events, and that neither was dramatically shaken by cross-examination.

14The trial judge noted elements of the appellant’s testimony that were convincing and supported by text messages, such as how the complainant was focused on accessing the contents of his mobile phone. Other aspects however were not, such as his testimony about his call to the police, when there was no supporting evidence. The trial judge also noted limitations in the complainant’s evidence. She was a quiet, nervous witness and forgot many details, which was a “plausible reaction to trauma”.

15The trial judge found that the unsafe storage of guns charges were “simply unanswerable”. After outlining the applicable regulatory scheme for the safe storage of firearms and noting that a higher standard applied to restricted firearms, such as the appellant’s handgun and semi-automatic rifles, he concluded that the storage of the guns and ammunition constituted a “marked departure from the standard of care of a reasonably prudent person”, as required for a conviction under s. 86(1) of the Criminal Code. He rejected as irrelevant the appellant’s explanation that the guns were not securely stored because they were going to be transported soon, noting that the guns had been in that state for hours. The appellant was accordingly convicted of the unsafe storage of firearms charges.

16The trial judge then addressed the charges of violence against the complainant. He characterized the complainant’s recitation of the events as generally substantially more plausible than the appellant’s, but also recognized that “that conclusion, obviously, is not sufficient to ground guilt”: at para. 68.

17Considering all the evidence, the trial judge was not satisfied that the charges relating to the “seizure” incident had been proved beyond a reasonable doubt. Although it was strange that the appellant had not called out to the complainant’s roommates for assistance with the seizure, the complainant’s testimony on the matter was tentative and he could not determine which story was reliable, leaving a reasonable doubt.

18Concerning the January 27 incident in the appellant’s home, the trial judge concluded that the photos of the complainant’s injuries and the observations of her roommate made it inescapable that the complainant had been injured in a variety of ways consistent with her allegations. While noting that it was not the appellant’s obligation to explain what happened to the complainant, and while there was a substantial gap between the time the complainant left his home and the time she arrived at her home, the trial judge concluded that it was extremely unlikely that the complainant would have injured herself or engaged another to harm her in pursuit of revenge. Any possibility that the injuries were caused by something other than the appellant’s actions fell far short of creating a reasonable doubt. The trial judge found the complainant’s testimony about the January 27 incident to be strong, precise, and consistent with the photos and the handgun and loose ammunition found in the appellant’s armoire drawer. He observed that her evidence about the forcible confinement was logical and convincing, and that, while her account of the sexual assault came late in her evidence, it appeared free of exaggeration, and she seemed genuinely at a loss about the appellant’s motivation to inflict pain in that way. The trial judge convicted the appellant on these charges.

19Two additional charges for pointing a handgun at the complainant and possessing an unlawful knife were dismissed as they lacked evidentiary support.

Issues

20The appellant raises four grounds of appeal. For the most part, all have to do with the convictions in relation to the events of January 27. The appellant contends that the trial judge erred (1) by presuming his guilt to explain gaps in the complainant’s memory; (2) by placing undue reliance on the complainant’s testimonial demeanour; (3) by relying on the complainant’s lack of exaggeration to bolster her credibility; and (4) in failing to provide sufficient reasons.

Issue One: The trial judge did not presume the appellant’s guilt to explain gaps in the complainant’s memory

21The appellant contends that, in concluding that the complainant’s demeanour and her difficulties remembering the events of January 27 were caused by trauma, the trial judge engaged in circular reasoning and presumed the appellant’s guilt as the cause of the trauma. This resulted in a reversal of the burden of proof, which required the appellant to prove that the complainant was not suffering from trauma, or that there was some other cause of the trauma that could explain her memory impairment.

22I would not give effect to this ground of appeal.

23The trial judge did not make a finding that the complainant had in fact suffered trauma as a result of the incidents, or that such trauma excused her memory lapses and other problems with her evidence. Rather, at para. 46 of his reasons, the trial judge referred to the limitations to the complainant’s evidence, and stated:

It may be perfectly true that some of those limitations are explained by her comment that she has spent the time since 27 January, 2018 trying to forget what happened. That would be a perfectly plausible human reaction to trauma. Of course, where the Crown bears the burden of proof as in a criminal trial, and specifically of proof beyond a reasonable doubt, that perfectly natural human reaction may compromise the Crown’s case…. the burden and standard of proof in a criminal trial are inescapable realities. [Emphasis added.]

24Contrary to the appellant’s assertions, the trial judge did not excuse gaps in the complainant’s evidence based on trauma. Instead, he observed that frailties in the complainant’s recollection of events – whether related to trauma or not – could compromise the Crown’s ability to prove the charges beyond a reasonable doubt.

25Indeed, the trial judge’s next reference to trauma was at para. 69, when he was addressing the first incident. Although he found that there were some elements of the appellant’s evidence in relation to the “seizure” that were implausible, the trial judge also noted that the complainant’s testimony about the first incident had a “somewhat tentative flavour”. He stated that “[t]he flavour may reflect either uncertainty or assumption or perhaps just a particular manner of expression or the impact of trauma on recollection”. As a result, the trial judge concluded that he was not in a position to determine which version of the events was reliable, and that he had a reasonable doubt on those charges.

26When the references to “trauma” are considered in context, there is clearly no merit to the appellant’s submissions on this issue. The trial judge did not refer to the complainant’s possible trauma as a reason to excuse the frailties in her evidence, nor are the references to trauma indicative of circular reasoning or a reversal in the onus of proof. Where the complainant’s evidence was tentative, whether as a result of trauma or some other reason, the trial judge did not convict. By contrast, with respect to the January 27 offences of which the appellant was convicted, the complainant’s evidence was not tentative, and several aspects of her account were confirmed by the police photos of her injuries and of the gun and ammunition that were found in an armoire in the appellant’s bedroom closet. The trial judge described the complainant’s evidence about the forcible confinement as “logical and convincing”, and then referred to how the evidence about the sexual assault came out at trial. Read as a whole, the trial judge’s reasons indicate that he understood the presumption of innocence and at no point presumed the appellant’s guilt.

Issues Two and Three: The trial judge did not place undue reliance on the complainant’s testimonial demeanour or improperly use her lack of exaggeration in the assessment of her credibility

27The next two issues can be dealt with conveniently together. In essence, the appellant is challenging his convictions for offences where there was no independent evidence to corroborate the complainant’s testimony. He asserts that, while photos of the complainant’s injuries corroborated her account for the assault with a weapon and choking convictions, they did not corroborate the uttering threats or sexual assault allegations. The appellant submits that, because of the weaknesses in the complainant’s testimony, the trial judge needed “something more” in order to convict the appellant of these offences, and that in this regard he improperly relied on the complainant’s testimonial demeanour and, with respect to the sexual assault conviction, a lack of exaggeration.

28Again, I do not find the appellant’s arguments persuasive.

29First, none of the convictions for the January 27 offences turned on the complainant’s testimonial demeanour. Rather, the trial judge referred to the complainant’s demeanour – that she appeared to be reliving the moment when testifying about being threatened with a gun, and the “palpable change in [her] affect and tone” when testifying about the sexual assault – as only one of several factors he considered in the assessment of her evidence. An important factor was that there were photos of the complainant’s injuries and the location of the handgun and ammunition in the appellant’s closet. This evidence, although not corroborative of every detail of what the complainant described, was confirmatory of certain aspects of her testimony, and as such was relevant to the assessment of her credibility: R. v. Primmer, 2021 ONCA 564, at para. 39, leave to appeal refused, [2021] S.C.C.A. No. 462. See also R. v. Demedeiros, 2018 ABCA 241, 431 D.L.R. (4th) 650, at para. 10, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568: “[w]hether evidence can be confirmatory is a common sense analysis of whether the evidence can provide comfort to the trier of fact that the witness is telling the truth”.

30Moreover, in assessing the force of the complainant’s evidence about the threat, the trial judge noted that she was precise about not having seen the gun but having heard it and recognizing the sound from having been at the gun range, and that the two loose bullets the police found in the armoire drawer were consistent with the action of a round being chambered and cleared, perhaps more than once. In other words, this evidence was confirmatory of the complainant’s account of the appellant having threatened her with a gun he had loaded in his closet, and his unloading it before putting it back in the closet under some clothes.

31With respect to the sexual assault conviction, the appellant again notes that this portion of the complainant’s evidence was not corroborated by the photos, and he asserts that the trial judge, in saying that the complainant’s evidence about the sexual assault was brief and to the point but appeared free of exaggeration, impermissibly used the lack of exaggeration as a factor to support the complainant’s credibility. The appellant refers to this court’s decision in R. v. Kiss, 2018 ONCA 184, at paras. 52-53, as authority that, while the presence of exaggeration or embellishment can undermine credibility, its absence tends to be a neutral factor, and R. v. Alisaleh, 2020 ONCA 597, at para. 16, where this court observed that “it is wrong to reason that because an allegation could have been worse it is more likely to be true”. According to the appellant, the trial judge reasoned in this way, concluding that, since the sexual assault allegation could have been worse, it was more likely to be true.

32I do not agree that the trial judge improperly relied on the complainant’s lack of exaggeration in his assessment of her credibility.

33Provided that it is not used as a “makeweight in favour of credibility”, it is appropriate for a trial judge to note that a witness has not embellished their evidence. Like the observation that there were no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination, this is not a factor showing credibility, but explains why a witness has not been found to be incredible: Kiss, at para. 52. And, as Moldaver J. explained in R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at para. 5, while the lack of embellishment or exaggeration cannot be used to bolster a complainant’s credibility, it may properly be considered as a factor in assessing whether the witness had a motive to lie: at para. 5.

34In this case the appellant relied on an alleged motive to lie about the incidents of violence. He claimed that the complainant, who was jealous and angry, had threatened he would go to jail and never get to see his son again, and that she followed through with her threats when she went to the police. The fact that the complainant had not exaggerated her evidence about the sexual assault was properly considered by the trial judge. In any event, unlike in Alisaleh where the trial judge had erred in using lack of embellishment as one of two important factors to “enhance” the complainant’s credibility, when the trial judge’s reasons are considered as a whole it is clear that he did not accept the sexual assault allegation simply based on a lack of exaggeration. The digital penetration was part of a prolonged attack on the complainant alleged to have occurred on January 27, which was denied in its entirety by the appellant. The trial judge’s acceptance of the complainant’s evidence about the sexual assault, as well as all of the other offences that took place that day, was informed by his observations that her evidence was “rational”, “compelling”, “logical and convincing,” and (in respect of the physical assaults) “powerfully consistent” with the photos taken by the police.

Issue Four: The trial judge provided sufficient reasons

35The appellant contends that the trial judge failed to provide sufficient reasons for accepting the complainant’s evidence with respect to the January 27 incident in its entirety and for rejecting his evidence.

36I would not give effect to this ground of appeal.

37Sufficient reasons provide a logical connection between the verdict and the basis for the verdict. “The foundations of the judge’s decision must be discernible, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17. The “inadequate reasons” ground of appeal, to be successful, requires the appellant to establish that one or more of the objectives of reasons – to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal – has not been attained: R.E.M., at para. 25.

38Contrary to the appellant’s submissions, the trial judge’s reasons explain clearly what he decided and why. He accepted beyond a reasonable doubt all of the complainant’s evidence about the January 27 incident because it was logical, compelling and certain aspects of her account were confirmed by independent photos. It was, according to the trial judge, “inescapable from those photographs” that the complainant had been injured in a variety of ways consistent with her allegations against the appellant. The photos and the implausibility of the complainant having been injured only after she left the appellant’s home led to the rejection of the appellant’s denial of having inflicted any injury on the complainant, and in turn his account of what transpired on January 27. Moreover, the trial judge explained why he accepted the complainant’s evidence and why he found the appellant’s evidence to be “less convincing”.

39The appellant contends that the trial judge’s reasons are insufficient because he failed to address two material inconsistencies between his evidence and that of the complainant: first, about whether the two had breakfast at Cora’s on January 27; and second, whether the complainant had an Instagram conversation with her co-worker while using his cell phone. He asserts that the complainant’s denials undermined her credibility, while his own evidence was corroborated by independent evidence.

40I agree with the Crown that the evidence that is said to have corroborated the appellant’s testimony on each of these points was not particularly strong: there was an e-transfer of money from his mother that day that he claimed was used to pay for breakfast, and screenshots of texts to the complainant’s co-worker on his phone, that he claimed were sent by the complainant. I also agree that, in any event, these inconsistencies between the appellant’s and the complainant’s evidence were on peripheral matters. The trial judge accepted that aspects of the complainant’s evidence were not convincing, including that she seemed unwilling to agree she had access to the appellant’s phone. Nevertheless he provided sufficient reasons to explain why, notwithstanding certain frailties in her evidence, he accepted the core of the complainant’s account about the assaults, threats and forcible confinement that occurred on January 27.

41The appellant also asserts that the trial judge did not provide sufficient reasons for disbelieving his evidence, after describing his testimony as “plausible” and not finding it to be patently false. He challenges the three examples provided by the trial judge at para. 45 of his reasons, for characterizing his evidence as “less convincing”: (1) the lack of a record of his call to the police on the night of his arrest; (2) his explanation for breaking up with the complainant in light of later messages he sent wishing to reconcile; and (3) his denial that the complainant’s messages suggested she just wanted to be friends. The appellant contends that the trial judge failed to explain why these aspects of his evidence adversely affected his credibility.

42Although the appellant may not agree with his findings on the evidence, it was certainly open to the trial judge to conclude that each of the three examples of the appellant’s evidence undermined his credibility. Contrary to the appellant’s submission that the reference to the phone call to the police was merely part of his narrative and not relied on to corroborate his account, in fact his trial counsel specifically referred to the call as showing a “consciousness of innocence”, arguing that he would never have called the police if he had assaulted the complainant. Where phone call data in relation to that night had been retrieved and tendered by the appellant, their absence on this point was properly noted by the trial judge as making his evidence “less convincing”. The trial judge also explained that certain aspects of the appellant’s evidence – that he had broken up with the complainant because he wanted to give precedence to his relationship with his son and his denial in cross-examination that the complainant’s messages suggested that she wanted to move from an intimate to a “friends” relationship – were less convincing because they were “hard to reconcile” with other evidence, including the text messages.

43Finally, I note that the appellant asserted in his factum that the trial judge’s reasons for convicting the appellant of four counts of careless storage of a firearm were insufficient. This was not raised in oral argument, and for good reason. There is no question that the trial judge’s reasons properly articulated and explained, with reference to the evidence, why the appellant’s conduct in relation to the firearms and ammunition was a marked departure from the standard of care of a reasonable person in the circumstances.

Conclusion and Disposition

44For these reasons, I would dismiss the sentence appeal as abandoned and I would dismiss the conviction appeal.