Court File and Parties

CITATION: R. v. Larizza, 2010 ONCA 406

DATE: 20100604

DOCKET: C46153

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Philip Larizza

Appellant

Michael A. McKee, for the Appellant

Peter Scrutton, for the Respondent

Heard: June 3, 2010

On appeal from the conviction entered on October 2, 2006, and the sentence imposed on October 2, 2006, by Justice John R. McIsaac of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1] Mr. Larizza was convicted of 2 thefts over $5,000. The evidence establishing his identity as a party to the two thefts was circumstantial. It consisted largely of expert evidence on the location of his cell phone and that of his friend, Robert Chiovitti, during the evenings on which the two thefts took place. That evidence established that the 2 cell phones were in frequent contact with each other at the relevant times, were in close proximity and that their locations were consistent with the locations of the thefts.

[2] The appellant submits that the trial judge erred in applying evidence on each count as similar fact evidence on the issue of identification on the other count. We do not agree. The Crown did not lead or rely on similar fact evidence and the trial judge did not use similar fact reasoning to convict. The trial judge considered the totality of the evidence to reach his conclusions that the appellant was a party to both thefts. There is nothing in the reasons to indicate that he relied on the evidence of one count to satisfy guilt on another count.

[3] Nor do we accept that the verdict was unreasonable. In that regard, we rely on para. 43 of the Crown’s factum that:

• Chiovitti stole Hamby’s motorcycle on Aug. 18 and Joubran’s on Aug. 20;
• Chiovitti used an accomplice during both thefts;
• The appellant was a friend of Chiovitti’s;
• Chiovitti called the appellant’s phone in the evenings before both thefts;
• The appellant’s phone travelled from near his residence to very near the locations of the thefts and back to near his residence on the evenings of both thefts, generally tracking Chiovitti’s movements;
• Chiovitti called the appellant’s phone multiple times very near the time of the first theft; and
• The appellant and Chiovitti’s phones were located very close to the locations of both thefts proximate to both thefts.

[4] In the circumstances, it was fully open to the trial judge to find that the only reasonable inference to be drawn was that the appellant was Chiovitti’s accomplice. We see no basis on which to interfere with the trial judge’s findings. Accordingly, the appeal is dismissed.