COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mullings, 2016 ONCA 171

DATE: 20160301

DOCKET: C58150

Sharpe, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jennoi Mullings

Appellant

Richard Fedorowicz, for the appellant

Brock Jones, for the respondent

Heard: February 25, 2016

On appeal from the conviction entered on June 3, 2013 and the sentence imposed on September 19, 2013 by Justice Nancy Backhouse of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of various firearms offences, possession of marijuana for the purpose of trafficking, and possession of the proceeds of crime. He appeals on the basis that the trial judge misapprehended evidence and that the verdict was unreasonable.

A. Facts

[2] Police officers executed a search warrant on a suspected drug operation at around 5 a.m. on December 13, 2011. They broke down the front door of the residence and used two distraction devices – one near the front door and the other into the basement.

[3] Officers went downstairs to the basement and encountered the appellant and a co-accused near the bed in a bedroom. The two were wedged behind a box spring and mattress against a wall. The appellant was lying on his left side. There was an overturned television in the room. The police officers told them to raise their hands in the air. The co-accused complied; the appellant did not immediately raise his left hand. He did so after being asked three times. The appellant initially gave a false name to the police.

[4] At the time, the appellant was subject to two prohibition orders under s. 109 of the Criminal Code, R.S.C. 1985, c. C-46, having been convicted of firearms offences in 2007 and again in 2008.

[5] The officers found a loaded .40 calibre handgun under the mattress one to two feet from the appellant. The gun had 14 bullets in the magazine and 1 in the chamber. In the same basement bedroom, the police found 3.41 grams of marijuana on a desk, five working cell phones (none of which were associated with the appellant), three digital scales, and an accounting list. In the basement hall closet, police found 50 rounds of 9mm ammunition and $2,000 in bundled cash. Personal documents belonging to the co-accused were also found in the closet. In the basement storage room, the police found three empty vacuum bags that smelled of marijuana. In the living room/dining room, police found 13.34 grams of marijuana. The co-accused also had $1,000 in his pocket.

B. The trial

[6] The co-accused pleaded guilty to possession of marijuana for the purpose of trafficking and possession of the proceeds of crime, and was found guilty of three firearms-related offences.

[7] The trial judge held that the appellant had either joint or constructive possession of the firearm. She concluded that the appellant and the co-accused were involved in drug trafficking together and that they both had possession of the marijuana in the basement bedroom and the cash. The appellant was convicted of possession of a loaded prohibited firearm, possession of a firearm knowing its possession is unauthorized, possession of a prohibited device (a high capacity magazine), possession of the proceeds of crime, possession of marijuana for the purpose of trafficking, and breaching two s. 109 firearm prohibition orders.

C. The firearm convictions

[8] The appellant’s submissions as to misapprehension of evidence and unreasonable verdict overlap on the issue of the firearm convictions. The convictions stem from the trial judge’s conclusion that the appellant was in possession of the loaded weapon. The appellant submits that this conclusion was based on findings that ignored other reasonable inferences that raised a reasonable doubt.

[9] The first issue is why the appellant did not raise his arm quickly enough when told to do so. He submits that the trial judge ignored the reasonable inference that his arm was stuck either under him or in between the mattresses. He relies in part on the following testimony of Officer Overbeek:

Q. And might [his position on the left side of his body] pose some difficulty in him raising that left arm when he’s lying on top of that arm in a tight space?

A. Yes.

[10] The second reasonable inference allegedly ignored by the trial judge was that the co-accused had, without the appellant’s knowledge, placed the firearm underneath the bed. The trial judge opined that one of the men, to the other’s knowledge, put the gun under the mattress moments before the police came in so that it could be used by either of them. The appellant submits that there was no basis for this conclusion as there was no evidence about what transpired inside the bedroom prior to the police entry.

[11] According to the appellant, the trial judge’s rejection of these inferences amounts to a misapprehension of the evidence that led her to an unreasonable verdict. There was no evidence that the appellant had possession of the firearms – either actual or constructive.

[12] We do not agree.

[13] The trial judge found as a fact that the appellant understood the commands and did not raise his left hand in the air. She considered some of the discrepancies in the evidence of officers, but found that they were consistent on the key points that both the appellant and the co-accused were in close proximity to the firearm and that the appellant failed to raise his left arm immediately. She rejected the possibility that his hand was stuck. These findings were available on the evidence and disclose no misapprehension of the evidence.

[14] The trial judge based her conclusion that the appellant knew the firearm was next to him on the whole of the circumstances, including the defensive position he took when the police entered, that the gun was loaded and ready to be used, his proximity to the gun, and the delay in raising his hand. This conclusion was supported by the evidence and was not unreasonable.

D. The Convictions for possession of the proceeds of crime and Possession of marijuana for the purpose of trafficking

[15] The appellant submits that the verdicts in relation to the possession of the proceeds of crime and the drugs found in the basement bedroom were unreasonable.

[16] The trial judge found that the appellant and the co-accused were engaged in the drug trafficking business together. They therefore had joint or constructive possession of all the items in the basement. Those jointly engaged in a criminal enterprise would be expected to share in the proceeds.

[17] The appellant submits that there was no evidence that he was involved in the illegal drug operation and no evidence connecting him to the money or the drugs.

[18] On this issue, we agree with the appellant.

[19] The trial judge based her conclusions on these counts on evidence that the items in the home were tied to an illegal drug operation. But there was no evidence that the appellant was part of that operation. In particular, there was no evidence connecting him to the $1,000 found in the co-accused’s pocket or the $2,000 found in the closet in the basement hallway. There was no evidence that he knew of or had control over the money.

[20] There was also nothing connecting the appellant to the marijuana. The officer who seized it did not say where on the desk the marijuana was located, or that it was in plain view. Officer Caton testified that he did not recall seeing drugs or drug paraphernalia on the desk when he entered the basement bedroom. Simply put, other than the appellant’s presence in the basement, there was no evidence connecting him to the drugs or the money.

E. Sentence

[21] The appellant was sentenced to nine and a half years’ imprisonment, less credit for pre-sentence custody. He received eight and a half years for possession of a loaded firearm and an additional year for the breaches of two prohibition orders. The sentences for the other charges were to run concurrently and did not impact the total sentence.

[22] The appeal as to sentence rests entirely on the appeal from conviction. Despite our conclusion on the convictions for possession of the proceeds of crime and possession for the purpose of trafficking, the overall sentence is not affected and remains fit.

F. Disposition

[23] The appeal is allowed in part. The convictions for possession of the proceeds of crime and possession for the purpose of trafficking are quashed and acquittals are entered. The appeal relating to the firearms offences is dismissed. The sentence appeal is dismissed.

“Robert J. Sharpe J.A.”

“M.L. Benotto J.A.”

“Grant Huscroft J.A.”