Court File and Parties

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lengelo, 2013 ONCA 609

DATE: 20131004

DOCKET: C54249

BEFORE: Goudge, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jean-Charles Lengelo Appellant

COUNSEL: Dominique D. Smith, for the appellant Andrew Menchynski, for the respondent

HEARD: October 3, 2013

On appeal from the conviction entered on May 6, 2011 and the sentence imposed on August 3, 2011 by Justice J. David Wake of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] In the early hours of July 14, 2010, three men robbed Bobbie’s Pizza.

[2] A police constable was on duty, a short distance from the scene of the robbery. When the call came in regarding the robbery, he responded by driving towards the pizza shop. He saw two or possibly three men running towards a nearby Silver City movie theatre parking lot. He pursued them, driving over a grassy median and onto the Silver City parking lot. He watched the two men run towards the appellant’s silver minivan, which was running. The men appeared to be trying to get into the van.

[3] The police constable stopped his cruiser right behind the van. He noted its licence plate number. When the two robbers ran away, the police constable chased them on foot while yelling “Police! Stop!” The appellant drove away. He was arrested less than ten minutes later when he was spotted, driving his van, a short distance away from the Silver City parking lot. Identification belonging to one of the robbers was found in the appellant’s van. The appellant did not testify at trial, as was his right.

[4] The trial judge found the appellant was the driver of the getaway vehicle and, accordingly, both a party and a conspirator to the robbery. The appellant was convicted of one count each of: possession of a weapon for a purpose dangerous to the public peace; robbery; and conspiracy to commit an indictable offence. The conviction for possession of a weapon was stayed pursuant to the Kienapple principle.

[5] The appellant’s appeal against conviction rests on two primary grounds: that the trial judge misapprehended the evidence and the verdict was unreasonable. As counsel for the appellant acknowledged, the foundation of the appeal is his contention that the trial judge could not have reasonably concluded that the appellant’s van was the getaway vehicle.

[6] At the oral hearing of the appeal, the court found it unnecessary to call on the Crown.

[7] We do not accept that the trial judge misapprehended the evidence or rendered an unreasonable verdict.

[8] There was nothing in the evidence to support an innocent explanation for why the appellant was sitting in his van in the middle of the night in a parking lot, with the engine running, at a location close to the pizza shop, around the time that a person known to him was robbing the pizza shop, or why the robbers ran straight to his van after committing the robbery. In the circumstances, the inference that the appellant’s van was the getaway vehicle was available.

[9] Accordingly, the appeal is dismissed.