COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Arsabekov, 2016 ONCA 169

DATE: 20160301

DOCKET: C52359

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Timur Arsabekov

Appellant

Margaret Bojanowska, for the appellant

Alexander Hrybinsky, for the respondent

Heard: February 25, 2016

On appeal from the conviction entered on February 19, 2010 by Justice Feroza Bhabha of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals from conviction for fraudulent possession of credit card data and possession of a credit card forgery device. The appellant was convicted following a trial in the Ontario Court of Justice but was acquitted of a charge of possession of break-in instruments.

[2] A USB device containing credit card information and a credit card swiping device (reader) were found in a console in the appellant’s car. The appellant concedes that he had control over these objects, so the Crown was required only to establish knowledge in order to make out the possession charges.

[3] The appellant submits that the verdict was unreasonable and that the trial judge failed to conduct a proper analysis concerning the appellant’s knowledge.

[4] We disagree.

[5] In our view there was ample circumstantial evidence to support an inference of knowledge. The trial judge found that the appellant attempted to evade the police when he was followed. The USB device found in appellant’s car contained credit card information belonging to American Express and CIBC clients. It was found alongside a credit card reader. The trial judge recognized that a credit card reader is not a prohibited device per se, but it is an item that can be used for fraudulent purposes in dealing with credit cards. Finally, the trial judge rejected the appellant’s testimony, including his claim that items had been left in the car by a third party, describing it as a “complete fabrication”.

[6] In these circumstances, the inference that the appellant had knowledge of the objects in his possession was open to the trial judge, and her decision to draw that inference is not inconsistent with her decision to acquit the appellant on the charge of possession of break-in instruments.

[7] We recognize that the Crown failed to prove that the appellant was involved in the credit card skimming operation the police were investigating at a Green P parking lot. That, however, was not fatal to the Crown’s case as the balance of the evidence led by the Crown was sufficient to support the appellant’s convictions for possession of the credit card data and possession of a credit card forgery device. Nor was the Crown required to establish that the appellant had used the USB or the credit card reader in order to establish the appellant’s knowledge of them.

[8] The trial judge properly instructed herself as to the requirements of R. v. W. (D.). and properly applied the reasonable doubt standard. She did not make a finding against the appellant based solely on rejection of his evidence.

[9] The appeal is dismissed.

“Robert J. Sharpe J.A.”

“M.L. Benotto J.A.”

“Grant Huscroft J.A.”