COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marini, 2016 ONCA 383

DATE: 20160519

DOCKET: C57763

MacPherson, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Marini

Appellant

Melanie Webb, for the appellant

Katie Doherty, for the respondent

Heard: May 16, 2016

On appeal from the conviction entered on April 4, 2013 and the sentence imposed on June 21, 2013 by Justice W. Larry Whalen of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of a single count of break and enter and commission of an indictable offence (theft) by Whalen J. of the Superior Court of Justice. He received a sentence of 45 months imprisonment less nine months credit for pre-trial custody. The appellant appeals his conviction and sentence.

[2] The break, entry and theft occurred at a store in Sault Ste. Marie. A security video recorded a man break a storefront window, enter the store, and leave with a generator valued at $172.37. The male thief was well-covered by dark clothing. His head and face were covered and he wore gloves. It was impossible to identify the thief from the video.

[3] When the police attended the store the morning after the break-in, they noticed blood on the frame of the door with the broken window. The police thought that the blood looked “fresh” so they sent it for testing. The results showed that there was a one in 8.2 quadrillion chance that the blood was not the appellant’s.

[4] The appellant did not testify at trial.

[5] Justice Whalen convicted the appellant. He concluded:

In all of the circumstances, I conclude that the blood found on Trio’s front door and identified as the accused’s was rationally and logically linked to the circumstances of the unlawful entry and theft. I find this evidence sufficiently compelling to conclude beyond a reasonable doubt that the accused was the perpetrator. For all these reasons, a conviction will be registered.

Conviction appeal

[6] The appellant appeals the conviction on four grounds, all under the umbrella of unreasonable verdict.

[7] First, the appellant contends that the trial judge misapplied the test for guilt where the evidence is wholly circumstantial.

[8] We disagree. The trial judge accepted the defence position that the blood evidence was circumstantial evidence and that there was no other evidence connecting the appellant to the crime. He then proceeded carefully in his assessment of that evidence:

I accept that where the Crown’s case depends wholly or even largely on circumstantial evidence, I should be careful in weighing it. A decision made or inference drawn from such circumstantial evidence should be logically and rationally based on the evidence as a whole. The circumstantial evidence should have a rational, logical connection to the accused and the act complained of for there to be a valid finding of guilt. The inference should be free of speculation, presumption or bias. In short, it must be compelling….

[9] In our view, this is an appropriate analytic framework for considering circumstantial evidence.

[10] Second, the appellant submits that when the trial judge said that it was “very likely” that the blood was deposited in the course of the theft and that it “very probably” happened while the perpetrator was exiting the store, he was reasoning at a level below the criminal standard of proof of guilt beyond a reasonable doubt.

[11] We are not persuaded by this submission. The trial judge referenced the appropriate standard numerous times. He did not need to use the wording necessary to reach an ultimate verdict of guilt in his discussion of each item of evidence or each factual conclusion he made.

[12] Third, the appellant asserts that the trial judge relied on impermissible speculation about the visibility and freshness of the blood on the door frame.

[13] We do not accept this submission. These conclusions flowed logically from police and other evidence at the trial.

[14] Fourth, the appellant contends that the trial judge erred by convicting the appellant in the absence of any evidence tying him to the crime.

[15] We disagree. The appellant’s blood was on the door frame where the window had been broken by the thief. The police testimony was that the blood appeared to be fresh. This is hardly no evidence. The appellant did not testify and offer any explanation for his blood being at the crime scene.

[16] In summary, the conviction was an entirely reasonable verdict.

Sentence appeal

[17] The appellant submits that a global sentence of 45 months imprisonment was too harsh for a theft causing total damage (stolen generator and repaired window) of less than $500.

[18] The appellant has a 30 plus year criminal record with 70 plus convictions, many for break and entry and theft.

[19] The sentence was fit.

Disposition

[20] The conviction and sentence appeals are dismissed.

“J.C. MacPherson J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”