Court of Appeal for Ontario

CITATION: R. v. Taylor, 2015 ONCA 304

DATE: 20150504

DOCKET: C54119

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Taylor

Appellant

Counsel:

Talman W. Rodocker, for the appellant

Jason A. Gorda, for the respondent

Heard: April 30, 2015

On appeal from the conviction entered on October 29, 2010 and the sentence imposed on April 12, 2011 by Justice John Murray of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of several counts related to a home invasion. He was sentenced to 10 years in custody. He appeals his convictions and sentence.

[2] The issue at trial was identity. The appellant submits that the trial judge erred in two ways:

1. By failing to consider the evidence of P.C. Phillips when he rejected his alibi; and

2. By accepting the evidence of Ana Lulic to establish identity.

Alibi

[3] The appellant’s defence was that he was elsewhere when the home invasion took place. He said he was at a party at an apartment rented by “Priscilla” in order to sell drugs to “Brittany”. He did not know the last name of either. Nor did he know the names of the 30 other people at the party except for “Mark” and “Dave”, whose last names he did not know either.

[4] The appellant testified that when conflict started brewing at the party, he texted Lulic to pick him up. She arrived 20 minutes later, around 1.a.m. In her car was a plastic bin in the passenger seat, two televisions in the backseat, and DVDs on the floor. The appellant picked up some of the DVDs and put them in a bag. He moved the plastic bin into the trunk. He also readjusted the TV in the backseat to give Lulic a better view through the back window. Lulic told him the items belonged to a friend, whom she was helping to move.

[5] P.C. Phillips testified that, shortly after the robbery, he questioned Lulic about someone named “Brittany Shell”. In his reasons the trial judge said that P.C. Phillips “had no useful information.” The appellant submits that Phillips’ evidence shows that a person named “Brittany” was known to the police. This evidence, the appellant submits, should have been considered by the trial judge in connection with the alibi.

[6] In rejecting the alibi, the trial judge properly instructed himself on the applicable law, considered the late disclosure of the alibi, the lack of particulars provided by the appellant and the fact that the evidence appeared to the trial judge to have been “tailored” to match the disclosure. It was open to the trial judge to find that P.C. Phillips’ evidence was of no assistance to him.

[7] We see no error in the trial judge’s factual findings in this regard.

Lulic’s evidence

[8] Lulic testified that she planned the home invasion with the appellant and two other men. There was a shotgun in the appellant’s bedroom. Lulic was told that the gun would be loaded in front of the house’s occupants in order to scare them. She carried the shotgun to her car underneath her jacket and drove to the target home.

[9] At the residence, Lulic rang the doorbell, while the three accused stood out of sight. The appellant and one co-accused rushed the door when it was opened. She said she walked back to her car to wait. The second co-accused went into the home. She said that the appellant loaded two televisions and a plastic bucket into her car. The appellant got into the passenger seat and put the bucket on his lap. She drove off. They then went to a motel and tried to check in but were soon arrested.

[10] Lulic admitted that she provided false information to the police on at least three occasions. She also fabricated a person she said was involved. She admitted that she was intoxicated at the time of the robbery, also that she was unpredictable, unstable, unreliable, and addicted to OxyContin, and that she was testifying to secure a personal advantage. Clearly, Lulic was an unsavoury witness.

[11] The trial judge appropriately cautioned himself. He nonetheless accepted her evidence against the appellant based on other confirmatory evidence, in particular:

• Lulic testified that she transported a shotgun in her car to the targeted home where it was removed by one of the robbers. The victim confirmed that the robbers used a sawed off shotgun.

• Lulic had testified that a shotgun was in the appellant’s bedroom and while planning the home invasion, the group discussed opening the shotgun and inserting a shell to scare the victims.

• The sawed-off shotgun found in Lulic’s car with one shell loaded, was consistent with the victim’s testimony that a robber inserted one shell into a sawed-off shotgun before pointing it at him.

• The victim testified that he opened the door to a woman knocking and that three men burst in afterward. This confirmed Lulic’s testimony.

• The police located Lulic, her car, the appellant, and the stolen property 22 minutes after the robbery. They were at a nearby motel.

• The victim’s identification was found in the motel office, shortly after Lulic and the appellant had been there.

• The appellant’s fingerprints were found on items that had been stolen, including a television. This confirmed Lulic’s testimony that the appellant loaded a television into her car.

[12] The appellant submits that the trial judge should not have considered much of the evidence to be confirmatory, in particular, the evidence relating to the gun. It is argued that Lulic would have known the facts from the Crown disclosure. The trial judge was aware of and considered the frailties of Lulic’s evidence. Even if we accept the appellant’s proposition, the evidence of the fingerprints, the timing of the arrest and the victim’s identification in the motel provided powerful confirmation of Lulic’s evidence.

[13] We see no error in the trial judge’s consideration of the confirmatory evidence.

[14] The appeal against conviction is dismissed.

[15] The ten year sentence, while severe given the appellant’s age, is reflective of the seriousness of the offence and the criminal record of the appellant. There was no error in principle. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

“David Watt. J.A.”

“S.E. Pepall J.A.”

“M.L. Benotto J.A.”