Reasons for Judgment

Court File No.: CR-22-91104309
Date: 2025-01-15
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Yorcaef Jesus Rodriguez-Martinez, Defendant

Appearances:
Robert Scott, for the Crown
Maurizio Stellato, for the Defendant

Heard: April 29–30, 2024

Judge: Joseph Di Luca

Introduction

[1] Mr. Rodriguez-Martinez is charged with the following offences alleged to have been committed on May 25, 2022:

a. Sexual Assault Cause Bodily Harm;
b. Choking with Intent to Enable or Assist Sexual Assault;
c. Unlawfully Entering a Dwelling;
d. Fail to Comply with Probation Order dated August 6, 2021; and
e. Fail to Comply with Probation Order dated November 19, 2019.

[2] The complainant is BH. BH did not testify at trial. She is elderly and battling terminal cancer. On consent, a transcript of her police statement was tendered into evidence along with her call to 911.

[3] At the end of the trial evidence, the defence agreed that the Crown had met its burden on each charge. A finding of guilt was entered, though convictions were not entered at that time. I indicated that I would provide brief reasons at a later time.

[4] The defence then sought an order for a further NCR assessment. An earlier assessment report had been prepared but it did not support an NCR defence. In view of the nature of the offences, the presentation of the defendant as set out in the evidence, and the consent of the Crown, I held that a second NCR assessment was appropriate.

[5] The second assessment was completed by Dr. Karen DeFreitas on July 9, 2024. This assessment also did not support an NCR defence.

[6] The Crown is now seeking an order under s.752.1 for a Dangerous Offender/Long Term Offender assessment report. This is not a new development as the Crown has earlier in the proceedings advised the defence that should an NCR defence not be pursued, it would be seeking a D.O./L.T.O. finding at the sentencing stage.

[7] I now provide these brief reasons explaining the factual findings I make in support of the convictions that will be entered on all counts set out in the indictment.

Overview of the Evidence and Factual Findings

[8] BH lived on her own in a house on a residential street in Newmarket. Mr. Rodriguez-Martinez lived in the garage of a house on the same street, across and down the street from BH. Mr. Rodriguez-Martinez’s family resided in the main dwelling of that house.

[9] On May 25, 2022, at approximately 4:20 pm, BH was viciously assaulted in the garage of her home. She managed to contact 911 at approximately 4:21 pm. Emergency services attended and she was transported to hospital where she remained until June 1, 2022.

[10] BH explained that she opened her garage door in order to carry out her recycling bin. When she got to the end of her driveway, she noticed a man standing across the street. It appeared odd to her as the man just appeared to be standing there.

[11] The man approached her and offered to help her with the bin. She thanked him and returned to her garage to deal with a battery charger she had placed on her car. While interacting with this man, she noted that he had “a slushy or ice tea or something like that” in a clear cup.

[12] The man then followed her into the garage and approached her as she was standing by the open hood of her car. She asked him what he was doing and noticed that he had his penis out of his pants and was waving it around.

[13] The man then grabbed her in a “half-Nelson” with his forearm around her neck. He stated words to the effect, “You want me to do this.” He then started pounding all over her head and grabbed her by the neck, choking her. At moments, the choking was hard enough that BH could not breathe.

[14] BH felt him grabbing at her pants and underwear. He was trying to pull her pants down and managed to get them halfway down her buttocks. She reached back and grabbed his genitals and pinched as hard as she could. She could feel wetness and he started rubbing up and down against her.

[15] The man then resumed pounding BH’s head, “like a gorilla.” He was saying “Don’t struggle. Don’t fight. Just relax.” She told him to “go home” and he backed off and left the garage.

[16] BH managed to close the garage door and immediately called 911.

[17] BH described her attacker as having darker skin, though not black. He had black curly hair and had a very husky or burly body build. She noted that he had a light-coloured sweatshirt with a blue and maybe pink band or stripe on it. He also had light coloured blue track pants on, though she noted “I could be wrong on that.” She also noted black ankle high running shoes.

[18] In terms of injuries, BH suffered multiple bruises around her face, head and body. She was bleeding from several injuries to her hand and nose. Diagrams and photographs depicting these injuries were tendered into evidence. BH also reported being sore all over. As indicated, she remained in hospital for several days.

[19] Based on BH’s evidence, there is no issue that she was violently sexually assaulted in the garage of her home. The sexual assault included choking and repeated blows to the head and body. The injuries suffered by BH readily amount to “bodily harm” as that term is defined in the law. I accept BH’s evidence and the medical evidence that supports it. I am satisfied that the choking was undertaken for the purpose of committing the sexual assault. Lastly, I am satisfied that the attacker unlawfully entered the garage in order to commit the sexual assault. Subject to proof of identification, this evidence readily makes out the offences set out in Counts 1-3 of the indictment.

[20] I turn next to the only live issue at trial which is identification.

Identification Evidence

[21] AB is a neighbour who lives across the street from BH. On May 25, 2022, she happened to be looking out her main bedroom window when she observed a male walking quickly across the driveway. It appeared to her that his speed was increasing as he walked. She noted that he was carrying a clear cup that appeared to have some pink on it. She noted that the male was of medium build, he was wearing a hoodie and his clothing was light coloured.

[22] EL is another neighbour who lives across the street from BH. On May 25, 2022, as she was pulling into her driveway, she observed a young man, who she recognized as a neighbour, standing near a tree at the foot of the driveway. She knew this young man as “Yorca” and had seen him walking on the sidewalk many times. On this occasion, it did not appear that he was simply moving along. This made her feel uneasy, so she remained in her car for a while. She noted that he was wearing light pink track pants, a light-coloured sweatshirt and running shoes. She did not see anything in his hands.

[23] Det. Quigley was the forensic officer who processed the defendant’s home following execution of a search warrant. In the garage, he located a pair of black Nike running shoes, a grey hoodie and pink track pants. The hoodie had what appeared to be blood staining on it. He also found a clear Wendy’s drink cup with a pink liquid in it. The cup was approximately half full. There is a Wendy’s logo printed on the clear cup. Det. Quigley also located medication bottles in the defendant’s name on a table inside the garage.

[24] Dr. James Morrow is a forensic biologist at the Centre of Forensic Sciences. He conducted testing on items seized during the investigation. He explained that blood was detected on a stain on the right cuff of the light-coloured hoodie sweatshirt found in the garage of the defendant’s home. The blood was tested for a DNA profile and compared with a DNA sample taken from BH. The likelihood of someone other than BH being the donor of the DNA found on the bloodstained cuff was over 1 trillion to 1. As such, he concluded that it was “almost inconceivable that it would be someone other than her.”

[25] While blood staining was also found on the sweatpants seized from the garage, no testing was done in view of the result obtained from the hoodie sample.

[26] PC Liana Storoniak is one of the officers involved in the investigation. She collected security videos from a nearby Wendy’s restaurant and from two nearby residences on BH’s street at the date and time proximate to the alleged offences. Stills from these videos were compiled into video logs which were tendered into evidence.

[27] The Wendy’s video compilation shows an individual wearing a grey hoodie and pink track pants similar to those seized from the defendant’s home. The individual is wearing a mask, but his face is observable when his mask is pulled down while he is drinking from a clear cup that appears to be filled with a pink liquid. Based on the arrest photos and the similarity of the clothing items, including the presence of the clear cup with pink fluid, I find that the individual in the Wendy’s is Mr. Rodriguez-Martinez.

[28] In the video taken from a neighbouring house, BH can be seen taking out her green bin and recycling bin. A person wearing pink track pants can also be seen interacting with her.

[29] Lastly, in the video taken from another neighbourhood house which captures the front of Mr. Rodriguez-Martinez’s home, he can be seen initially wearing pink track pants and a red t-shirt. In a later clip, a male wearing a grey hoodie and pink track pants can be seen. This male appears to be carrying a cup in his hand. I am readily satisfied that the male in the grey hoodie and pink track pants is the same person seen earlier wearing a red t-shirt and pink track pants. In other words, it is Mr. Rodriguez-Martinez.

Conclusion

[30] The evidence viewed as a whole supports one singular conclusion which is that the defendant is the person who attacked BH in her garage on May 25, 2022. In short, there is no other reasonable alternative. This singular conclusion is based on the following:

a. The timing and nature of the civilian witness observations coupled with the evidence of BH support a finding that it was Mr. Rodriguez-Martinez who walked over to BH and offered to help her with her garbage bins.

b. The civilian evidence is supported by the video evidence and also the still image/video produced by police taken from the two neighbouring houses.

c. The attacker is wearing pink track pants, black shoes and a grey hoodie. The pink track pants can be clearly seen in the video stills depicting a person having an interaction with BH.

d. Clothing matching this description was found in the garage of the defendant’s home which doubled as his bedroom.

e. A person wearing the same clothing is seen in the Wendy’s video. The person in the Wendy’s video is seen with a cup with liquid in it. One of the civilian witnesses describes the same cup. BH also describes a similar cup. When police search the residence, a half-filled clear Wendy’s cup with pink liquid is located in the garage.

f. When the person in the Wendy’s video takes his mask down, he can be identified as Mr. Rodriguez-Martinez as seen in the arrest photos.

g. DNA testing of a blood stain on the cuff of the sweatshirt found in Mr. Rodriguez-Martinez’s bedroom is virtually conclusive of the fact that the blood came from BH.

[31] When all this evidence is taken together, the only reasonable inference is that Mr. Rodriguez-Martinez is the person who committed the offences against BH. As a result, he is guilty on counts 1, 2 and 3 in the indictment. In view of the admissions relating to the probation orders that were in place at the time, he is also guilty of counts 4 and 5.

[32] As a result, Mr. Rodriguez-Martinez is found guilty and convictions are entered on all counts.

Released: January 15, 2025