



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Hoppe,









2017 BCCA 25




Date: 20170112

Docket: CA43385

Between:

Regina

Respondent

And

Peter Hoppe

Appellant




Before:



The Honourable Chief Justice Bauman

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Fitch




On appeal from: An
order of the Provincial Court of British Columbia, dated October 15, 2015 (
R.
v. Hoppe
, New Westminster Docket 78358-1).

Oral Reasons for Judgment




Counsel for the Appellant:



K.B. Westell





Counsel for the Respondent:



S.E. Elliott





Place and Date of Hearing:



Vancouver, British
  Columbia

January 12, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 12, 2017








Summary:

Appeal by H. from his
conviction on a charge of breaking and entering a restaurant. H.s fingerprint
was found on the underside of the cash register which had been moved from the
front counter into another room. The trial judge rejected H.s evidence that he
had touched the cash register on an earlier occasion when he stole money from
the till. Held: Appeal dismissed. It was open to the trial judge to draw the
inferences she did. Her verdict was not unreasonable nor did she misapprehend
the evidence.

[1]

FRANKEL J.A.
: Peter Hoppe appeals his conviction on a charge of
breaking and entering with intent to commit an indictable offence following a
trial before Judge Alexander of the Provincial Court of British Columbia. The
place broken into was a small family-run restaurant. Mr. Hoppes fingerprint
was found on the underside of the restaurants cash register. In convicting Mr.
Hoppe, the trial judge rejected his evidence that he placed his fingerprint on
the cash register when, at a time prior to the break-in, he stole money from
the till.

[2]

The break-on occurred while the restaurant was closed over New Years. Forced
entry was gained through a window facing the alley; an unsuccessful effort had
been made to pry the back door open. The restaurant was ransacked and food and
other items taken. The cash register, which ordinarily sits on the front
counter, had been moved into another room and placed on a table. The drawer for
the till was on the floor and money had been removed. The restaurant owners
husband discovered the break-in on the morning of January 2, 2015, and notified
the police. Two other small businesses and a vacant unit on the same block had
also been broken into.

[3]

Mr. Hoppe was a regular customer of the restaurant. He worked at nearby
store that sold locks among other things; he was somewhat of a handyman. In
2014 the owners son asked Mr. Hoppe to install a new lock on the
restaurants front door and to fix the back door. Both the son and the owner
were present while Mr. Hoppe did so. The owner was in the habit of leaving the
cash registers drawer open when she was in the restaurant.

[4]

A police forensic-identification officer located two fingerprints on the
underside of the cash register by tilting the register on its side; it weighed
approximately 30 pounds. The officer was able to lift only one of those prints.
That print, which was on the left side of the register, was from Mr. Hoppes
left middle finger. The prints orientation was such that Mr. Hoppe would have
been facing the register as you would to operate it when he touched the underside.

[5]

The officer also recovered fingerprints consistent with someone pulling
themselves through the back window but those prints could not be matched to
anyone. The officer testified those prints did not contain sufficient detail to
exclude Mr. Hoppe.

[6]

A pry bar was found in one of the other businesses that had been broken
into and a latex glove was found in the vacant unit. No DNA or fingerprints
were found on the pry bar. DNA was found on the inside and outside of the latex
glove but was not sufficient for analysis.

[7]

Mr. Hoppe testified that he was addicted to heroin when he fixed the
restaurants doors. He said just before finishing that work he could see that the
cash registers till was open and seized the opportunity to quickly steal $16.
In cross-examination he said that he hit the bottom of the till and then that
he grabbed the bottom of it. With respect to why he grabbed the cash register
he said (while making a gesture with his left hand) (verbatim):

The whole till opens. Pulled it
open cause I didnt know how -- where the drawers went, if it was the whole
piece to pull it and again it popped open, the whole square so

[8]

The trial judge instructed herself in accordance with
R. v. W.(D.)
,
[1991] 1 S.C.R. 742. She rejected Mr. Hoppes testimony and found that, on the
evidence she accepted, that the Crown had proven its case beyond a reasonable
doubt. In so doing, the judge stated:

[13]      When considering the evidence, I
find the explanation of the defendant for the presence of his fingerprint
underneath the cash register to be contrived. It is apparent on the evidence of
the two owners, the mother and the son, that the cash drawer was frequently
left open or partly open, and in the circumstances it is not credible that the
defendant would reach underneath what was testified by Cst. Robinson as a
30-pound cash register to access funds from the till when the drawer was
already partly open. It is also not credible that he would do this at a time
when the defendant testified himself that he was unsure of the exact whereabouts
of the shop owners, keeping in mind that this is a small premises and he
testified that
Mr. Husang (phonetic) was close behind
him.

[14]      The location of the cash register
was also in the front of the shop where it would have been visible to anyone
passing by on the street or other customers and it is unclear if there were any
other customers in the shop, but as I have indicated both the complainant and
her son were working that day and did not see the defendant at any time access
the cash register.

[15]      I find that on the whole of the
evidence that the fingerprint was put on the cash register when the defendant
moved it during the break and enter over the New Year's period from the front
room to the middle room of the premises. I find that he was the perpetrator of
the break and enter.

[16]      The
other events in nearby properties and who the perpetrators may have been is
pure speculation. I find that the evidence of the defendant, I do not believe
it, it does not raise a reasonable doubt, and on the whole of the evidence I
find him guilty as charged.

[9]

On appeal, Mr. Hoppe contends that: (a) the verdict is unreasonable; (b)
the circumstantial evidence left open a reasonable inference inconsistent with
guilt; and (c) the trial judge misapprehended the evidence. In oral submissions
he concentrated on the first of those grounds. I would not accede to any of his
arguments, some of which overlap.

[10]

For the most part, Mr. Hoppe seeks to have this Court retry the case and
make a credibility finding in his favour that the trial judge was not prepared
to make. He seeks to dissect and isolate aspects of the judges reasons in an
attempt to show she made findings incompatible with the evidence. For example,
he submits the statement in para. 14 of those reasons  that neither the owner
nor her son saw Mr. Hoppe access the cash register on the day he fixed
the doors  ignores the fact that both witnesses acknowledged there may have
been times when they lost sight of him. However, in reviewing the evidence of
those witnesses the judge stated that while they believed they had
Mr. Hoppe in view at all times, they could not say they had never lost
sight of him: para. 11.

[11]

Another example is Mr. Hoppes argument that the weight of the cash
register, which the trial judge refers to in para. 13 of her reasons, was
irrelevant. I disagree. It was common ground that the cash registers drawer
was left open. As a matter of common sense, the judge was entitled to consider whether
someone who intended to steal money from an open till would place his other
hand underneath the cash register.

[12]

As the cases indicate, a single fingerprint can support a conviction: see
R. v. ONeill
(1996), 71 B.C.A.C. 295;
R. v. Gauthier
, 2009 BCCA
24, 264 B.C.A.C. 298;
R. v. Chudley
, 2015 BCCA 315. In the absence of a
credible explanation for how Mr. Hoppes fingerprint came to be on the underside
of the cash register, it was open to the trial judge to find that it was placed
there when Mr. Hoppe moved the cash register away from the front counter of
the restaurant.

[13]

With respect to Mr. Hoppes arguments that the trial judge
misapprehended the evidence, in my view those are nothing more than
disagreements with the judges interpretation of the evidence. As Madam Justice
Stromberg-Stein stated in
R. v. Swales
, 2014 BCCA 350, 360 B.C.A.C. 291,
leave to appeal refd [2016] S.C.C.A. No. 68:

[49]      It is not enough for
the appellant to merely suggest a different interpretation of the evidence, or
merely point to some evidence which arguably weighs against the trial judges
finding. Mere differences in interpretation on factual matters are not
misapprehensions but simple disagreement with the judge's differing view of the
evidence.

[14]

The last argument I will address is Mr. Hoppes submission that the
trial judge erred because she did not, after rejecting his evidence, go on to
consider the possibility that he could have placed his fingerprint on the cash
register at some other time. There is, however, no evidence from Mr. Hoppe or
any other witness that Mr. Hoppe ever touched the cash register when he
attended at the restaurant as a customer. Indeed, as a customer he would have
had no reason to come into contact with the cash register, let alone its underside.
The suggestion now made  which was not made at trial  is completely speculative
and is not one that the Crown needed to negate: see
R. v. Villaroman
,
2016 SCC 33 at paras. 36

38,
338 C.C.C. (3d) 1.

[15]

I would dismiss this appeal.

[16]

BAUMAN C.J.B.C.
: I agree.

[17]

FITCH J.A.
: I agree.

[18]

BAUMAN C.J.B.C.
: The appeal is dismissed. We thank counsel for
their excellent submissions.

The Honourable Mr. Justice Frankel


