



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Middleton, 2017 ONCA 31

DATE: 20170117

DOCKET: C61148

Weiler, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lennie Middleton

Appellant

Alexander Ostroff, for the appellant

Andreea Baiasu, for the respondent

Heard: January 11, 2017

On appeal from the conviction entered on May 15, 2012 by
    Justice Jane E. Kelly of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for assault with a weapon,
    specifically, a lamp. An appeal from the sentence is proceeding separately as
    an inmate appeal. The appellant raises three grounds of appeal. They are:
    1) misapprehension of the evidence by the trial judge; 2) error by the
    trial judge in reversing the burden of proof and failing to appreciate relevant
    evidence; and 3) whether the trial judges reasons were sufficient and the
    conviction was unreasonable.

[2]

In relation to this first ground of appeal, the appellant relied on his
    factum. He submits that the trial judge misapprehended Mr. Cuthberts evidence
    regarding the appellants use of the lamp. In our opinion, the reasons read as
    a whole do not reflect any misapprehension of the evidence. Earlier in her
    reasons in discussing the timing of the assault in relation to the charge of
    robbery of which the trial judge used a shorthand reference that could be taken
    as the appellant submits namely that Mr. Cuthbert saw the appellant hit the complainant
    with a lamp. However, in the portion of her reasons dealing with whether the
    appellant assaulted the complainant with the lamp, she clearly held that
    Mr. Cuthbert saw the appellant swing the lamp at the complainant but did
    not see him hit the complainant with the lamp.

[3]

In relation to the second ground of appeal, the appellant alleges the
    trial judge reversed the burden of proof when she held that the photograph of
    the complainants injury seemed to be consistent with the use of a lamp and
    corroborated the complainants evidence and, no evidence was before me to
    suggest that a lamp such as the one photographed would not have caused the
    injury to Mr. Kamara [the complainant]. In our opinion the trial judges
    comment did not reverse the burden of proof. She was really saying that on the
    evidence no other inference was available. The appellant also submits that the
    trial judge failed to address whether Cuthberts machete attack could have
    caused the injury. There is no evidence to support a finding that Cuthberts
    machete caused the injury. The only evidence as to the use of the machete that
    night is that it was used to hit Mr. Duncan. There was no evidence about a
    different kind of assault on the complainant to address.

[4]

In relation to the third ground of appeal, the reasons for judgment
    address virtually all the evidentiary concerns raised by the appellant at para.
    41 of his factum. The trier of fact is entitled to accept some of the evidence
    of a witness, while rejecting other parts of that witness evidence. Contrary
    to the appellants submission, the evidence of Mr. Cuthbert that he saw the
    appellant pick up a lamp and swing it towards the complainant is actually
    confirmatory of the complainants testimony that an assault occurred as opposed
    to being contradictory of it. The contradictory evidence of when the assault
    occurred was not relevant to whether the assault occurred. Its relevance lay in
    the robbery charge of which the appellant was acquitted. Nor was the trial
    judge required to address every item of evidence. It was open to the trial
    judge to come to the conclusion she did on the evidence. Taken cumulatively,
    the factors relied on by the appellant do not meet the test for an unreasonable
    verdict. The reasons met the functional requirements of permitting appellate
    review and elucidating why the appellant was convicted of the assault with the
    lamp, while being acquitted on the separate count of robbery with a firearm. Accordingly,
    the appeal is dismissed.

K.M. Weiler J.A.

S.E. Pepall J.A.

G.T. Trotter J.A.


