ONTARIO COURT OF JUSTICE
CITATION: R. v. Pottinger, 2018 ONCJ 290
DATE: May 3, 2018
Scarborough - Toronto
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
RANDY POTTINGER
For the Crown: M. Pecknold
For the Defendant: P. Aubin
Heard: March 19 - 22, 2018
REASONS for JUDGMENT
RUSSELL SILVERSTEIN, J.:
A. INTRODUCTION
[1] On the evening of December 31, 2016, well after sundown, Andy Marks was at home in the basement of his mother’s house on Lilliane Drive in Scarborough. He saw a man lurking in his backyard wearing a ski mask. On January 2, 2017, just after Mr. Marks had gone to sleep, a man wearing a hat and dark clothes broke into Marks’s basement room and began to beat him and rifle through his drawers.
[2] The Crown alleges that the accused, Randy Pottinger, is the December 31 prowler and the January 2 intruder.
[3] In the early morning hours of January 24, 2017 Mr. Pottinger was driving his girlfriend’s car. He stopped at a gas station and attracted the attention of the police who came over to investigate. A pellet gun was found in the open trunk of the car.
[4] The Crown alleges that the accused was in possession of that pellet gun and thus in breach of a probation order forbidding him to possess the pellet gun.
[5] As concerns the alleged crimes at 146 Lilliane, Ms. Pecknold for the Crown argues that Mr. Marks’s identification of the accused as the perpetrator on both occasions, is reliable as it is supported by several pieces of circumstantial evidence. Mr. Aubin, on the other hand, argues that Mr. Marks’s identification of the accused is flawed and is undermined by the circumstantial evidence.
[6] As concerns the pellet gun, the issue is whether the Crown has proved that Mr. Pottinger knew the gun was in the trunk of the car, and if so, did he have control of it, as control is defined in the law of possession.
B. THE EVIDENCE
(a) Introduction
[7] The Crown called eight witnesses: Andy Marks; Ruth Marks, Andy’s mother; Officer Marc Lortie, who seized evidence at 146 Lilliane; Officer Connie Forsythe, who spoke to Mr. Marks on January 2, 2017; Officer Adam Day, who spoke to Mr. Marks on December 31, 2016; Officer Michael Palermo, who took a statement from the accused on January 24, 2017; Cameron Power, who examined certain items for fingerprints; and Officer Asad Khan who investigated the accused on January 24, 2017.
[8] The Crown also filed the tapes and transcripts of the 911 calls placed from Lilliane on December 31 and January 2, as well as the tape and transcript of Mr. Marks’s January 9, 2017 interview when he was shown a photo lineup. The lineup itself is also an exhibit. Lastly, the Crown filed a series of photographs depicting the accused and his car on January 24, 2017.
[9] The defence called one witness: Jeannie Durette, a former girlfriend of the accused and the owner of the car he was driving on January 24, 2017.
(b) The evidence for the Crown
[10] Andy Marks is the former boyfriend of Zoey Janes, who lived on Lilliane Drive across the street from Mr. Marks’s mother’s house, where Mr. Marks had been residing in the basement for a few months prior to the incidents here in question. Their relationship ended more than a year prior to the incidents as a result of Mr. Marks having assaulted Ms. Janes. According to Mr. Marks, he had not spoken to her in many months, although she had continued to regularly harass him since their breakup.
[11] While Janes and Marks had been dating in 2015 she told him about a former boyfriend named “Buddha” or Randy. The accused essentially admitted to the police that this was him. Marks had seen the accused on Lilliane Drive from time to time speaking to Janes and had come to recognize his blue Chrysler Seabring. He finally met the accused face to face a few months before the end of 2016. While Mr. Marks’s recollection of this encounter varies somewhat from Mr. Pottinger’s (as recounted to the police in his statement of January 24), I find that it involved the accused confronting Mr. Marks and warning him to stay away from Janes, who had told the accused that Marks had beaten her and robbed her. According to Marks, the accused (the man he had come to know as “Buddha”) had continued to harass him.
[12] Marks testified that when, on December 31, he saw a man lurking at night behind his house in dark clothes and a ski mask, he recognized him as “Buddha”. I do not accept this as an accurate recollection by Marks of his state of mind after that encounter. His true state of mind can be inferred from (1) what he told the police on the 911 tape, (2) what he told Officer Day later that night, and (3) what he did afterwards.
[13] In the 911 call Marks tells the dispatcher that the prowler was “really big…tall, like 6’4”, 6’3”, with a ski mask, black”. Although Marks wasn’t asked if he knew who the intruder was, he did not volunteer that information.
[14] He told Officer Day later that night that the prowler “might be black” and that it was Janes’s new boyfriend.
[15] Mr. Marks went across the street to see his ex-girlfriend Zoey Janes the next day to talk about the incident. He told police on January 9, 2017 that he went there because he thought she might know who the prowler was. Marks further told police on January 9 that Janes said that “it must be Buddha”.
[16] Mr. Marks’s opportunity to identify the prowler was extremely limited. The prowler never said a word and never entered the house. The opportunity to identify him was so limited that Marks could only tell the police (twice) that the prowler “might be” black. The discussion he reported to the police having had with Janes doesn’t support the proposition that Marks recognized the prowler as “Buddha”.
[17] As to what he and Janes said to each other is unclear. It may be that she merely said that it was something she could imagine the accused doing, or it might even have been that she told Marks that in fact it was the accused, which is what Marks told the 911 operator two days later. Marks’s evidence is unclear on this point, and Janes did not testify.
[18] I have no doubt, however, that as of the morning of January 1, and before the break-in of January 2, Marks firmly believed that the accused was the December 31 prowler.
[19] Between December 31 and January 2 Mr. Marks spent most of the time at a nearby motel, drinking, doing drugs, and not sleeping. As a result, when he got home in the early morning hours of January 2 he was not in a particularly clear state of mind. According to Marks, just as he was falling asleep he heard a crash and was immediately set upon by a black man wearing a tuque. The man immediately proceeded to beat him with what Marks observed to be a two-tone pistol that looked like a 9 mm. The man alternated between rifling through his drawers and beating him. He didn’t say a word. The entire episode lasted somewhere between three and six minutes.
[20] Marks testified that he recognized the intruder as the accused. He was black, had the same build and a similar distinctive scar on his face that Marks had noticed on the accused when he encountered him previously.
[21] When asked by the 911 operator on January 2 whether he knew who the intruder was he said: “Yeah. Yesterday, when you guys came here, right, I said that, I said that it had to do with someone across the street…” He added: “I found out a nickname for him, but no one-,I, I-, I’m gonna find out his last name right now”. He gave the 911 operator the perpetrator’s nickname as “Buddha”.
[22] Marks told the 911 operator that the intruder was 6’3” or 6’4”.
[23] Later on the 2nd of January Marks spoke to police again. He told them that since moving back in with his mother every new boyfriend of Zoey Janes would come around. In reference to the January 2nd intruder he said he saw a black male that looks just like him but couldn’t be sure and that it was really dark in the room. He said that the intruder had a scar that was similar.
[24] On January 9, 2016, Mr. Marks was shown the line up by D.C. Butler who was a stranger to the investigation. It was conducted at Marks’s home and was audio recorded.
[25] A photo of the accused was included as #12 in the lineup. The date the photo was taken is not in evidence. It shows the accused with a light beard. A scar on the right side of his face is visible in the photo but is by no means prominent, probably because of the beard.
[26] Photo #12 bears a strong resemblance to the accused as he appeared in court before me. Mr. Pottinger’s appearance in the month of January 2016 can be seen in the video of his police statement on January 24 and the series of photos taken by a CCTV at the gas station where he was arrested on that day. Neither of these sources is particularly clear, although it can be said that he looks quite similar in those media to how he appears in lineup photo #12, and here in court.
[27] Mr. Marks was told during the lineup procedure that he was being shown the photographs “to see if [he recognizes] anyone in the photographs for any reason”. He was also told that he only had two options; “yes you recognize the person, or no you do not…if you do recognize the person in the photograph for any reason, please tell me yes and why you recognize the person”.
[28] Mr. Marks looked at each picture one at a time. After looking at photo #4 Marks asked if he could come back and look at it again. He was told he could not. After seeing photo #4 Marks told Butler: “I think once I see him, I’ll have no doubt”.
[29] After viewing the accused’s photo Marks said: “This person has the closest to a scar, although it doesn’t look like the guy. It looks off. He looks too old. None of these guys look like it, actually…this dude right here like, that’s the only dude that has scars and it kind, I seen a guy wearing a shirt like this, but I can’t say for sure that it’s him…I don’t know if this is him. I can’t tell…I’ll just say no for now. I can’t put like, not sure?”
[30] Officer Butler responded by saying: “You can, uh, yeah just on the back here”.
[31] Marks wrote “NO” on the back of the accused’s picture.
[32] In his testimony Marks recalled telling the police at the lineup that he was 90% sure that photo #12 was the perpetrator. According to Detective Palermo, Marks told him after the lineup that he was 80 or 90% sure, although he has no notes of this discussion.
[33] Andy Mark’s mother, Ruth Marks, testified that on January 2, 2017 she awoke to the sound of a struggle downstairs. She saw a tall slim man with long legs and dark clothing running north in front of the house.
[34] According to Ms. Marks, Andy had complained to her about strangers in the backyard and that Janes was bothering him. He had called the police a week before the break in to complain of two men in the back yard.
[35] The evidence suggests that Mr. Pottinger was between 5’9’ and 5’10” at the material time, and weighed 91 kg. I would describe him as lean and well-built at trial.
[36] Two items of interest were found by police at the scene of the January 2 break-in. An ammunition magazine identical to the one inside the pellet gun found in the trunk of the car operated by the accused on January 24 was found in Marks’s backyard. No fingerprints were found on either magazine. A black tuque was found on the road north of Marks’s home. It contained four DNA profiles all of which were suitable for comparison and were indeed compared to the accused’s DNA. The accused was excluded as a source of all four profiles.
[37] Mr. Marks also testified that he saw Mr. Pottinger’s blue Seabring parked down the street in the early morning hours after the December 31 incident.
(c) The defence evidence
[38] Jeannie Durette is Mr. Pottinger’s former girlfriend. They lived together for a brief period that included December 2016 – January 2017. She was the owner of a blue Chrysler Seabring that the accused was arrested with on January 24, 2017. He had his own set of keys and would help himself to the car when she wasn’t using it.
[39] The accused had told her about his prior relationship with Zoey Janes. He continued to visit Janes very often because she was a troubled heroin addict. Durette would sometimes accompany the accused to Janes’s home on Lilliane Drive. The accused sometimes went twice a day.
[40] She remembered being under the weather over the 2016-2017 holiday season. She and the accused had gone to Napanee for a few days but she wasn’t sure when.
[41] Ms. Durette identified the pellet gun seized from the trunk of her car as the pellet gun she had bought for her teenaged son. She last saw the pellet gun after she had put it in a box in the trunk of the car.
C. ANALYSIS
(a) The breach of probation charge
On January 24, 2017 the accused was forbidden by a probation order to possess a pellet gun. The CCTV video from the gas station shows that the gun is not visible in the open trunk until Mr. Pottinger briefly approached the trunk. Then, suddenly the gun is clearly visible atop a sweater in the trunk. No one else could have placed it there. Although I accept the evidence of Ms. Durette, it does not exonerate the accused on this count. I am convinced beyond a reasonable doubt that the accused placed the gun in the position where it was found by the police. He is thus guilty of breaching his probation.
(b) The incidents at 146 Lilliane
[42] The accused is presumed innocent and need prove nothing. The burden is on the Crown throughout to prove guilt beyond a reasonable doubt.
[43] The Crown led Mr. Pottinger’s statement to the police in which he emphatically denied committing the offences on the 31st and the 2nd. If I believe his denial he must be acquitted. Even if I don’t believe it, if it raises a reasonable doubt he must be acquitted.
[44] Mr. Pottinger told the police: “when I go to see Zoey, I go with my girlfriend”. He repeated this to them more than once. Yet, Ms. Durette said that while he went there often, she rarely accompanied him. I found Ms. Durette’s testimony to be candid and forthright. She was subpoenaed to court at the 11th hour and was clearly not out to favour either the Crown or the accused. I believe her testimony in every regard. I do not believe the accused’s statement on this issue. I am thus unable to accept the balance of his statement to police. Moreover, given the circumstances of the statement – Mr. Pottinger was being accused of a serious crime – his bare bones denial does not, in and of itself raise a reasonable doubt.
[45] I turn then to the balance of the evidence to see if the Crown has proven her case against the accused beyond a reasonable doubt.
[46] Ms. Pecknold argues that this is essentially a recognition case. Mr. Marks had met the accused and had thus come to know what he looked like. The encounter on the 2nd of January was a close one that lasted long enough for Marks to get a good look at the invader and to recognize him as Buddha. The mention of the unusual scar to the police strengthens the reliability of Marks’s identification as does the finding at the scene of the magazine identical to the one inside the pellet gun found in the trunk of the accused’s car on January 24, 2017. She also points to the accused’s admitted motive and Marks’s testimony as to the presence of the Seabring on Lilliane Drive a short time after the December 31st incident.
[47] Mr. Aubin argues that there are so many material discrepancies between Marks’s initial description and the characteristics of the accused that I cannot be sure that the accused is responsible. In particular, both Marks and his mother describe the perpetrator as tall and slim – Mr. Marks gave his height as between 6’2’ and 6’4”. He further argues that the lineup procedure exculpates the accused and that Marks’s many other comments to the police after the January 2nd home invasion demonstrate his uncertainty. The presence of four other persons’ DNA profile on the hat further exculpates the accused.
[48] According to Mr. Aubin, while Marks clearly now firmly believes Mr. Pottinger is responsible, this is not as a result of his observations, but rather is a result of his initial suspicions, as confirmed by his discussion with Zoey Janes after the December 31st incident.
[49] Mr. Aubin attributes Marks’s mention of the scar to the police as Marks describing “Buddha” as he remembered him, and not the perpetrator as he saw him.
[50] After reviewing all the evidence and the submissions of counsel I make the following findings:
[51] Well before December 31, 2016, as he himself said, Andy Marks believed that Zoey Janes was seeking retribution for what he had done to her months previously. He also believed that Janes and her former boyfriend, whom he had met, and knew as “Buddha”, were conspiring to do him harm. When, on December 31, 2016 a masked man appeared in his backyard he strongly suspected it was Buddha, although he could barely make out his features. After speaking to Janes about it the next day he was convinced that it was him.
[52] On the 2nd of January, Marks was attacked in his bedroom. Marks was certain it must be Buddha. I am not at all convinced, however, that he saw the intruder well enough to identify him. Marks’s various statements to police support this conclusion.
[53] While there is no doubt that Mr. Pottinger had a strong motive to commit this offence, Andy and Ruth Marks’s description of the perpetrator as tall point to someone else, as do the DNA findings in the recovered tuque. Moreover, Marks told the police that since moving back to his mother’s basement he had been “visited” by several of Janes’s new boyfriends. The accused was a former boyfriend of Janes, and Marks knew this well.
[54] As for the pellet gun magazine, Marks’s description of the intruder’s gun does not match the solid black pellet gun found in the trunk. As for the blue Seabring being spotted by Marks on the 31st, the accused’s habit of visiting Janes often may well explain that. As for Marks telling the police that the perpetrator had a scar on the right side of his face, this might simply have been Marks describing Buddha as he remembered him, rather than Marks describing the perpetrator as he saw him.
[55] The police lineup casts further doubt on the accused’s guilt. If Mr. Marks had indeed recognized the accused as the January 2nd intruder I would have expected him to recognize the photo of the accused in the lineup. Instead, Marks’s comments to the officer conducting the lineup suggest a significant degree of uncertainty.
[56] Even if the perpetrator was not the accused, it is curious that Marks did not recognize the accused in the lineup having seen him several months prior. But this oddity does not take away from the extent to which Marks’s failure to identify the accused in the lineup undermines the Crown’s case.
[57] It is quite possible that the accused was the man who committed these offences. It may indeed be likely. But this is not proof beyond a reasonable doubt. The accused can only be found guilty if I am sure he is the perpetrator, and I am not.
D. CONCLUSION
[58] In the result I find the accused not guilty of all counts on the information save and except the count alleging breach of probation on January 24, 2017. I find him guilty of that charge.
Released on May 3, 2018
Justice Russell Silverstein