ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SC 14/12

DATE: 20121219

RE: Her Majesty The Queen v. Sergey Linskyi

BEFORE: Mr. Justice Kenneth L. Campbell

COUNSEL: Stephania Fericean, for the Crown, respondent

Mark Halfyard, the accused, appellant

HEARD: November 21, 2012

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Sergey Linskyi, was tried by the Honourable Mr. Justice S. Merenda of the Ontario Court of Justice on charges of impaired driving, operating a motor vehicle while having a blood alcohol level over 80 mgs., and two counts of failing to remain at the scene of the accident. The offences were all alleged to have been committed on November 7, 2010.

[2] The trial unfolded as a blended proceeding, with the Crown leading evidence seeking to establish the alleged guilt of the appellant, while the appellant sought to establish that his constitutional rights under ss. 8, 9, and 10(b) the Charter of Rights had been violated by the police. Part way through the evidence, the Crown was permitted to withdraw the “over 80 mgs.” charge on the basis that there had not been a proper breath demand, and one of the “fail to remain” charges due to the unavailability of the witness to the accident. The trial then continued on the two remaining charges. However, after the Crown had closed its case and the appellant had elected to call no evidence, the Crown conceded, at the outset of closing arguments, the impaired driving charge on the basis of the appellant’s alleged Charter violations. Accordingly, by the time the parties were making their closing arguments, the only real issue between them was whether the Crown had established that the alleged guilt of the appellant in relation to the one remaining charge of “failing to remain” at the scene of an accident.

[3] At the conclusion of argument, the trial judge delivered oral Reasons for Judgment finding the appellant guilty of this single offence of failing to remain at the scene of an accident. Pursuant to the concession by the Crown, the appellant was acquitted of the impaired driving charge.

[4] The parties immediately moved to the issue of sentence, and effectively provided the trial judge with a joint submission of a fine of $1,100. Notwithstanding the “atrocious” driving by the appellant, the trial judge acceded to this request and fined the appellant $1,100.

[5] The appellant appeals against this conviction. The appellant advances three related arguments, all based on the duration of the time between the accident and when the appellant is found by the police in his vehicle and the possibility that someone else might have been driving his vehicle at the time of the accident. The other driver involved in the accident was not able to identify the appellant as the driver of his vehicle at the time of the accident.

[6] First, the appellant contends that the trial judge misapprehended the evidence as the period of time between the accident and the time the appellant was found sitting in his motor vehicle. Second, the appellant argues that, in any event, given the passage of time between the accident and the time the appellant was found in his vehicle, the verdict in this case was unreasonable. According to the appellant, no reasonable trier of fact could have concluded that the Crown had established beyond a reasonable doubt that he was driving his vehicle at the time of the accident. Third, the appellant argues that the trial judge’s Reasons for Judgment are legally insufficient, as he failed to explain how the appellant could be guilty of the alleged offence of “fail to remain” given the passage of time between the accident and the time the appellant was found sitting in his vehicle.

B. The Evidence at Trial

1. The Evidence of the Pizza Delivery Man – Long Gao

[7] Mr. Long Gao testified that in the early morning hours of November 7, 2010, he was working delivering pizza for “Pizza Pizza.” He was on Seaforth Avenue in Toronto, a one-way street westbound. As there were a lot of vehicles parked on the left side of the street, and no parking place for him, he parked his vehicle up on the sidewalk on the right side of the street. He was in a big rush as pizza delivery is a time-limited business, but he tried to leave enough room for other vehicles to pass on the road between his vehicle and the vehicles parked on the other side of Seaforth Avenue.

[8] Mr. Gao testified that before he was able to leave his vehicle, he saw another car driving toward him, travelling the wrong way (eastbound) on the one-way street. This car was driving “very fast.” Indeed, as this vehicle went between Mr. Gao’s vehicle and the parked cars on the other side of the road, it accelerated. Mr. Gao could hear the exhaust sound as the vehicle sped up. Mr. Gao thought that the other vehicle should have been slowing down to drive between the cars, but instead it was accelerating. As the other car went between the vehicles, it struck both Mr. Gao’s vehicle and the other parked cars. Mr. Gao felt his own vehicle “shake a little bit” from the impact, and noticed that it caused “big damage” to his car. There was a big scratch down the driver’s side of his vehicle. Accordingly, while he was scared, he backed out his vehicle and began to follow this other car. Mr. Gao was able to identify the other vehicle as a silver Saturn. As he chased the Saturn, Mr. Gao called 911 and reported the accident and reported the license plate number of the Saturn.

[9] When the 911 operator told him that it was dangerous to continue to chase the Saturn, he stopped. Mr. Gao thought that he had followed the Saturn for perhaps five or ten minutes. As he followed the Saturn, however, Mr. Gao noticed that it’s mirror on the driver’s side of the vehicle was damaged where it had come into contact with the windshield of his vehicle. Indeed, the mirror on the Saturn was “hanging” down on the driver’s side.

[10] Mr. Gao could not identify the driver of the other vehicle, but he testified that the driver of the Saturn was a male. While he told the 911 operator that there was only one person in the Saturn, at trial Mr. Gao agreed that he unable to say how many people were in the Saturn, as it all happened in a “flash.”

[11] As to the timing of this incident, Mr. Gao testified initially that he thought it happened “around midnight,” but he could not really remember. He then explained that it was “almost closing.” Mr. Gao elaborated that, when he spoke to the police “it was closing time,” so the incident must have been “before closing,” which was around “twelve to one o’clock.” In cross-examination, however, Mr. Gao agreed with the suggestion that he felt that it was “closer to midnight.” In re-examination, Mr. Gao testified that he called 911 approximately five minutes after the accident took place.

2. The Evidence of the Arresting Officer – Constable Collymore

[12] Constable Brian Collymore of the Toronto Police Service testified that, at 1:23 a.m. on November 7, 2010, he received information from the dispatcher, through a 911 call, about property damage involving a silver Saturn vehicle, license plate BKJT445. He did not know when the 911 call was actually made, but he was advised by the dispatcher that the complainant (Mr. Gao) had claimed that the accident took place at approximately 1:17 a.m.[^1] Having been told that the Saturn was last seen heading westbound on Davenport, and being “close by,” Constable Collymore proceeded southbound on Old Weston Road towards Davenport.

[13] Shortly thereafter, at 1:25 a.m. Constable Collymore located the silver Saturn parked in the curb lane, on Old Weston Road, behind a parked car, facing north. The license plate of the vehicle matched the license plate number that he had been given by the dispatcher. The Saturn was still running and its head lights were on. There was one male in the vehicle – the appellant – and he was seated in the driver’s seat. His head was down and he appeared to be texting or dialing a phone.

[14] Constable Collymore noticed that the driver’s side mirror of the Saturn was damaged, “dangling” six to eight inches down the side of the vehicle “by its wires.” The passenger side mirror was completely missing. The Saturn had damage down the driver’s side of the vehicle, on the door and the rear fender. The damage appeared “fresh.”

[15] Constable Collymore pulled his scout car in front of the Saturn to block him in, and got out of his car. The appellant got out of the Saturn and spoke to the officer. The appellant seemed “calm and collected” but “very, very confused” and kept repeating himself. He did not know where he was, and did not appear to know that he had been involved in an accident

[16] At one point during their interaction, the appellant produced a valid driver’s license, which established his identity as 31-year-old, Sergey Linskyi, and provided his home address in Richmond Hill.

[17] At 1:38 a.m., the police officer arrested the appellant, advised him of his rights to counsel, and read him the “drug recognition expert demand.” Later, when the officer smelled a slight odour of alcohol on the appellant’s breath, he continued to investigate the appellant in relation to potential “drinking and driving” offences. The appellant was very cooperative and a “model prisoner.” At the conclusion of the investigation, the appellant was released, and Constable Collymore drove the appellant home to his Richmond Hill residence.

C. Analysis

1. Did the Trial Judge Misapprehend the Important Evidence?

[18] The appellant argues that the trial judge misapprehended the key evidence as to the period of time between the accident and the time the appellant was found sitting in his motor vehicle. In his Reasons for Judgment, the trial judge summarized the testimony of Mr. Gao as estimating that the accident took place “between twelve and one a.m.” on the night in question, and accurately observed that Constable Collymore found the appellant in his car at 1:25 a.m. that night. The appellant contends that the testimony of Mr. Gao was more nuanced than simply a general estimate that the accident happened between midnight and 1:00 a.m. and supported the appellant’s position that the temporal gap between the time of the accident and the time the appellant is seen in his vehicle was approximately an hour and a half. The appellant argues that in failing to note the nuances of this evidence and analyze the defence argument on this issue, the trial judge misapprehended the evidence.

[19] I reject this argument. While the trial judge did not review all of the nuances of the testimony of Mr. Gao, his brief summary of the testimony was not inaccurate in any material way. Moreover, it is clear that the trial judge fully understood the potential significance of this evidence from the appellant’s perspective.

[20] When initially asked about the timing of the accident in examination-in-chief, Mr. Gao advised that he “cannot really remember about the time,” but thought that it happened “around midnight.” When asked how sure he was about the timing of the accident, he explained that when he was talking to the police it was “closing time,” which was “around twelve to one o’clock,” and so the accident must have been “before closing.” When asked about this “pretty big window” of time between “twelve to one a.m.,” Mr. Gao agreed with the suggestion that he felt that the accident was “closer to midnight.” When asked to clarify this in re-examination, Mr. Gao testified that he called 911 approximately five minutes after the accident took place.

[21] Based on this testimony, it was not inaccurate for the trial judge to say that Mr. Gao “estimated” that the accident took place “between twelve and one a.m.” It was apparent from his evidence that Mr. Gao could not really remember the time of the accident. At one point, he tied the accident temporally to just before “closing time,” but he described “closing time as “around twelve to one o’clock.” The only nuance on this “pretty big window” of time, was his evidence in cross-examination where Mr. Gao agreed that he felt the accident happened “closer to midnight.” In my view, in failing to expressly note this refinement of Mr. Gao’s evidence in his Reasons for Judgment, it cannot fairly and accurately be said that the trial judge misapprehended the evidence of Mr. Gao.

[22] This conclusion is reinforced by the fact that during the course of the closing arguments, the details of this evidence were clearly and accurately highlighted by counsel and Merenda J. clearly expressed his understanding of this evidence. More particularly, in his closing argument, defence counsel relied heavily on the fact that the police did not find the appellant in his motor vehicle until approximately “an hour and a half” after the accident involving Mr. Gao’s vehicle. Defence counsel repeated the essence of this submission a number of times, arguing that the Crown could not establish beyond a reasonable doubt that it was the appellant who was operating his motor vehicle at the time of the accident. Indeed, at one point, when defence counsel was advancing this argument and asked rhetorically where the evidence was that the appellant was the driver of his vehicle “at the time of the accident,” given that he was not found in the vehicle until “[a]n hour and a half later,” Merenda J. commented that this was a “good point … [b]ut that’s the evidence I have” on the issue. Defence counsel reiterated his position in relation to this issue very clearly in his reply argument. More particularly, in his final words to the trial judge, defence counsel said:

So, the only evidence we have of the time of this accident would be somewhere around midnight … The stop is made, 1:23 which is almost an hour and a half later. And anybody could have been driving that car, an hour and a half before. Anybody.

[23] In light of the clarity and simplicity of this argument, and the clear appreciation of this evidence and its potential significance to the appellant’s position by the trial judge, I cannot conclude that the trial judge misapprehended this evidence. While Merenda J. may not have fully communicated his nuanced understanding of this evidence in his Reasons for Judgment, I am nevertheless satisfied that the trial judge did not misapprehend this evidence, or misunderstand its potential significance. See: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 538-541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Wadforth (2009), 2009 ONCA 716, 247 C.C.C. (3d) 466 (Ont.C.A.) at para. 79-81.

2. Is the Verdict Unreasonable?

[24] The appellant argues that, in any event, given the passage of time between the accident and the time the appellant was found in his vehicle, the verdict in this case was unreasonable. According to the appellant, no reasonable trier of fact could have concluded that the Crown had established beyond a reasonable doubt that he was driving his vehicle at the time of the accident.

[25] In considering this argument, regard must be had to the proper scope of appellate review under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, chap. C-46, which is made applicable to summary conviction appeals by s. 822(1) of the Code. The governing authorities have made it clear that in discharging this reviewing function as to the sufficiency of the evidence, an appellate court must determine, on the whole of the evidence adduced at trial, whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. This process requires more than simply determining whether there is any evidence to support the verdict. The appellate court must thoroughly review, analyze and weigh the evidence. However, this is not an entirely de novo assessment of the evidence wherein the appellate court substitutes its own view for that of the trier of fact. Indeed, an appellate court may only interfere with a verdict if it can clearly articulate the basis on which the verdict is inconsistent with the requirements of a judicial appreciation of the evidence. See: R. v. Yebes (1987), 1987 17 (SCC), 36 C.C.C. (3d) 417 (S.C.C.) at pp. 428-430; R. v. W.(R.) (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.) at pp. 140-142; R. v. Burns (1994), 1994 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.) at pp. 198-199; R. v. François (1994), 1994 52 (SCC), 91 C.C.C. (3d) 289 (S.C.C.) at pp. 295-297; R. v. Burke (1996), 1996 229 (SCC), 105 C.C.C. (3d) 205 (S.C.C.) at pp. 210-212; R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.) at para. 24, 36-42; R. v. G.(A.) (2000), 2000 SCC 17, 143 C.C.C. (3d) 46 (S.C.C.) at para. 6, 27-30; R. v. T.(H.R.) (2000), 2001 14562 (ON CA), 159 C.C.C. (3d) 180 (Ont.C.A.) at para. 31; R. v. Baltovitch (2004), 2005 16569 (ON CA), 194 C.C.C. (3d) 289 (Ont.C.A.) at para. 153-155; R. v. Dell (2005), 159 C.C.C. (3d) 180 (Ont.C.A.) at para. 24-26; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 4, 12-13, 67-70, 76-84; R. v. R.(J.S.) (2012), 2012 ONCA 568, 112 O.R. (3d) 81 (C.A.) at para. 69-72.

[26] Having carefully scrutinized all of the evidence in this case according to this governing standard of appellate review, I have concluded that the verdict reached by the trial judge is a reasonable verdict supported by the evidence. In reaching this conclusion, I have taken into account the following circumstances:

• Minimum Temporal Gap is Just 46 Minutes: The time period between the accident involving Mr. Gao and when the Constable Collymore finds the appellant in is vehicle is not actually an hour and a half as counsel for the appellant suggested at trial. As Mr. Halfyard for the appellant candidly acknowledged on appeal, because Mr. Gao testified only that he felt the accident was “closer” to midnight in the temporal window between midnight and 1:00 a.m., all that could be said on the basis of this vague evidence is that the accident was not likely later than 12:29 a.m. As the appellant was found in his vehicle at 1:25 a.m., based on Mr. Gao’s vague estimate, the minimum temporal gap between the accident and the police finding the appellant was only one of 46 minutes.

• The Circumstances of the Appellant on Arrest: When the appellant was found by Constable Collymore at 1:23 a.m. on November 7, 2010, he was sitting in the driver’s seat of his parked silver Saturn vehicle. The Saturn was running and its head lights were on. The damage to his vehicle was “fresh.” There was no one else in the vehicle or observed around the vehicle. These circumstances all point to the appellant as being the sole operator of his vehicle. The fact that the engine of the vehicle was running and the lights were on, while the appellant was in the driver’s seat, suggest that the appellant had, in fact, been driving the vehicle. Moreover, nothing in these circumstances surrounding the discovery of the appellant suggests that someone else might have somehow recently been operating the appellant’s vehicle. It was not as if there were others seated in the appellant’s vehicle, or in the vicinity of the car, who might have had easy access to the vehicle.

• The Silence of the Appellant: As was his right, the appellant elected to remain silent and not testify at the trial of this matter. The trial Judge could not (and did not) rely on this factor in deciding that the Crown had established the guilt of the appellant beyond a reasonable doubt. See: R. v. Prokofiew, 2012 SCC 49. However, the law is clear that, on appeal, where the reasonableness of the trial verdict is attacked, an appeal court is entitled to view the silence of the accused at trial as indicating that he could not provide an innocent explanation of his conduct. See: R. v. Corbett (1975), 1973 199 (SCC), 14 C.C.C. (2d) 385 (S.C.C.) at pp. 387-388; R. v. B.(J.N.) (1989), 1989 213 (MB CA), 48 C.C.C. (3d) 71 (Man.C.A.); Affirmed: 1991 111 (SCC), [1991] 1 S.C.R. 66; R. v. Peer and Katz (1995), 1995 1395 (BC CA), 100 C.C.C. (3d) 251 (B.C.C.A.) at p. 267; R. v. Noble (1997), 1997 388 (SCC), 114 C.C.C. (3d) 385 (S.C.C.) at pp. 428-429; R. v. Jolivet (1998), 1998 12773 (QC CA), 125 C.C.C. (3d) 210 (Que.C.A.) at p. 276; R. v. Rowley and Currie (1999), 1999 3804 (ON CA), 140 C.C.C. (3d) 361 (Ont.C.A.) at para. 19-21; R. v. Wang and Lo (2001), 2001 20933 (ON CA), 153 C.C.C. (3d) 321 (Ont.C.A.) at para. 44; R. v. Dell, at para. 35; R. v. Glave, 2011 ONCA 111, at para. 11.

In the circumstances of this case it is especially appropriate to conclude that the appellant could not have provided any “innocent explanation.” Practically speaking, the appellant must have known whether he (or someone else) had been driving his vehicle in the time period immediately prior to his arrest. If he had, for example, loaned his vehicle to someone, or simply been a passenger in the car while driven by another, or if the car had been recently stolen and then returned, the appellant was perfectly positioned to say so. It was, after all, his vehicle, and he was sitting in its driver’s seat at 1:23 a.m. However, instead of testifying in support of any such theoretical, exculpatory factual scenario, the appellant remained silent, leaving these potential alternative explanations steeped in the hypothetical without the support of any evidence.

• Appellant was Nowhere Near Home When Arrested: When the appellant was found by Constable Collymore and arrested, he was sitting parked in his vehicle on Old Weston Road in Toronto. However, the appellant lived at a residence located in Richmond Hill. Later than evening, at the conclusion of the police investigation, Constable Collymore drove the appellant home to that location. The fact that the appellant, when arrested, was separated by such distance from his residence, also undermines the possibility of at least some of the potential alternative factual scenarios posed by defence counsel, and increases the likelihood that the appellant had spent the latter part of the evening in his vehicle.

• Indicia of Impairment Explain Appellant’s Flight From Accident: According to Constable Collymore, when he approached the appellant at 1:25 a.m. on November 7, 2010, he observed certain indicia of impairment in the appellant. While the appellant seemed “calm and collected,” he was also “very, very confused” and kept repeating himself. He did not know where he was and did not appear to know that he had been involved in an accident. The police officer thought that the appellant was impaired by drugs and made a “Drug Recognition Expert” demand. Later, Constable Collymore noticed a slight odour of alcohol on the appellant’s breath and demanded that the appellant provide a roadside sample of his breath. When the appellant provided that breath sample, the Approved Screening Device registered a “fail” result, which, given the calibration of the device, indicated that the appellant had in excess of 100 mgs. of alcohol in his blood. These indicia of drug or alcohol impairment on the part of the appellant provide the appellant with a demonstrable motive for fleeing from the scene of the accident with Mr. Gao.

3. Are the Reasons for Judgment Legally Sufficient?

[27] The appellant also argues that the oral Reasons for Judgment that were provided by the trial judge are legally insufficient, as he failed to explain how had concluded that he was satisfied beyond a reasonable doubt that the appellant was guilty of this offence. In this regard, the appellant notes that the trial judge did not expressly address the argument that the appellant might not have been the driver of his vehicle at the time of the accident, given the temporal gap between the accident and the discovery of the appellant by Constable Collymore. While he had commented during argument that this was a “good point,” the trial judge, in his Reasons for Judgment, did not explain why this argument did not cause him to harbor a reasonable doubt as to the guilt of the appellant.

[28] I agree with the appellant that the Reasons provided by Merenda J. in this case are brief, and could have provided a more detailed explanation for the verdict reached. However, I do not agree that his Reasons are insufficient. In my view, in the circumstances of this case, they were legally adequate. Viewed from a functional and context-specific approach, and read in their entirety against the background of the evidence and live issue in this case, in my opinion the Reasons of the trial judge adequately explain why the accused was convicted, provide public accountability for the verdict, and permit effective appellate review of the decision. Moreover, the verdict reached by the trial judge is “intelligible” in that there is a logical connection between the verdict and the basis for the verdict. See: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 24-28, 46-52, 55; R. v. Braich, [2002] 1 S.C.R. 905, at para. 31; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 12-16, 19; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 19-20; R. v. M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15-57.

[29] In his Reasons for Judgment, the trial judge accurately reviewed the important aspects of the evidence in this case, including the fact that Mr. Gao estimated that the accident took place between midnight and 1:00 a.m., and the fact that Constable Collymore testified that he located the appellant parked in his vehicle at 1:25 a.m. Merenda J. then concluded:

When I consider all of the circumstances, I am satisfied beyond a reasonable doubt that the accused was indeed the person that was involved in the accident with Mr. Gao and drove the vehicle described by Mr. Gao. And I am satisfied beyond a reasonable doubt that he left the scene of that accident with intent to escape civil or criminal liability in accordance with the requirements of the section. And when I consider the evidence in its totality, there is no doubt in my mind it was the same person who struck the vehicles in the manner that he did and ended up on St. Clair and Weston Road where the police officers found him. Accordingly, there will be a finding of guilt as I am satisfied beyond a reasonable doubt that the accused is the person or was the person involved in the motor vehicle accident with Mr. Gao.

[30] While this analysis is brief and somewhat conclusory, it is important to recall that this was a short, two-witness trial that raised, essentially, only one issue for determination by the trial judge – whether or not he was satisfied beyond a reasonable doubt that it was the appellant who was driving his vehicle at the time of its involvement in the accident with Mr. Gao. In convicting the appellant, it is apparent that the speculative possibility that some other unknown and unnamed person may have, in fact, been driving the appellant’s car at the time of the accident, a defence theory unsupported by any evidence, simply did not raise a reasonable doubt in the mind of the trial judge.

[31] There was no need for the trial judge to comment expressly on the circumstantial nature of the evidence in this case. As Charron J. stated in R. v. Griffin (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), in delivering the judgment of the majority of the court, at para. 33, we have “long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one of identification.” Moreover, concluding that “the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty” is no more than an alternative formulation of the Crown’s normal burden of “proof beyond a reasonable doubt.” The law does not insist on any particular formulaic articulation of this fundamental and well-known burden of proof. See: R. v. Cooper, 1977 11 (SCC), [1978] 1 S.C.R. 860; R. v. Fleet (1997), 1997 867 (ON CA), 120 C.C.C. (3d) 457 (Ont.C.A.) at para. 20; R. v. Tombran (2000), 2000 2688 (ON CA), 142 C.C.C. (3d) 380 (Ont.C.A.) at para. 19-30. Of course, trial judges are presumed to know the law with which they work on a day in and day out basis. See: R. v. Burns, at 199-200; R. v. M.(R.E.), at para. 45. Indeed, articulating the Crown’s legal burden of proof beyond a reasonable doubt in the context of a case based upon circumstantial evidence is precisely the kind of “boilerplate” that is not legally required in a busy trial judge’s Reasons for Judgment.

D. Conclusion

[32] In the result, the appeal must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

RELEASED: December 19, 2012

[^1]: This evidence about the timing of the accident was admitted at trial for “very limited’ evidentiary purposes, namely, as part of the narrative and to show the officer’s grounds for further steps in his investigation. The evidence was not admitted for its truth.