DATE: 20010305

DOCKET: C31512/C30936/C32819

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. JERMAINE BLACK, JERMAINE JOHNSON and PHILLIP SALMON (Appellants)

BEFORE: DOHERTY, GOUDGE & SIMMONS JJ.A.

COUNSEL: Richard Litkowski for the appellant, Black John Erickson for the appellant, Johnson Keith E. Wright for the appellant, Salmon Brian McNeely for the respondent

HEARD: February 27, 2001

On appeal from the convictions imposed by Justice Donald S. Ferguson on June 11, 1998 and the sentences imposed on June 26, 1998.

E N D O R S E M E N T

[1] The totality of the evidence left no doubt that the vehicle in which the appellants were riding when arrested was the same vehicle used by the victim’s assailants at the time of the robbery. The totality of the evidence also permitted the reasonable inference that the group of persons in the vehicle at the time of the arrest (including the appellants) was the same group that got out of the vehicle and robbed the victim about an hour earlier.

[2] In concluding that the second inference could reasonably be drawn, we rely on the following:

• There were five people in the vehicle at the time of the arrest. Although the victim was understandably uncertain as to the exact number of assailants, his evidence could be reasonably interpreted as indicating that he was attacked by four or five persons.

• The attackers were all black. The five persons in the vehicle at the time of the arrest were black.

• The victim’s description of the clothing worn by the attackers was consistent in a general way with the clothing worn by the appellants at the time of the arrest.

• The victim said that the robbers used two handguns. Two handguns were found in the vehicle at the time of the arrest.

• A cell phone was taken from the victim during the robbery. That cell phone was found in the vehicle at the time of the arrest.

• Identification documents were taken from the victim during the robbery. They were found in the possession of one of the occupants of the vehicle at the time of the arrest.

[3] None of the appellants testified. This court may consider the failure to testify in assessing the reasonableness of a verdict. In doing so, it does not use that silence as evidence, but rather factors the absence of any innocent explanation into its consideration of whether a conviction based on the evidence was reasonable: R. v. Noble (1997), 114 C.C.C. (3d) 285 at 426-29 (S.C.C.).

[4] We did not call on the Crown on the other grounds of appeal and see no merit in them.

[5] Only Black has appealed his sentence. His sentence was appropriate.

[6] The conviction appeals are dismissed. Leave to appeal sentence is granted to Black, but that appeal is dismissed.

“Doherty J.A.”

“S.T. Goudge J.A.”

“J. Simmons J.A.”