



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 appellants submissions as to misapprehension of evidence and
    unreasonable verdict overlap on the issue of the firearm convictions. The
    convictions stem from the trial judges 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 hes 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 appellants knowledge, placed the firearm
    underneath the bed. The trial judge opined that one of the men, to the others
    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 judges 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-accuseds 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 appellants 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.


