Her Majesty the Queen - v. -, 2015 SKPC 123

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 123 Date: August 19, 2015 Information: 44664242 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kaylon Stonne Appearing: Will Collins For the Crown Mike Owens For the Accused JUDGMENT M.L. GRAY , J Background [ 1 ] Mr. Stonne was charged on August 9, 2013 with two counts of common assault–one on Vincent Sander and one on Tammy Cameron. Ms. Cameron did not testify at the trial but her identity was admitted by the accused who testified that Ms.

Cameron was his girlfriend and the mother of his children. The accused argues that any force applied to either Ms. Cameron or Mr. Sander was in self- defence. Two issues were left for the Court: (

i) Is a witness statement written on August 9, 2013, admissible as a past recollection recorded? and

(ii) Did the accused act in self-defence? Analysis (

i) Is a witness statement written on August 9, 2013, admissible as a past recollection recorded? [2] Cpl. Loucks testified by video and said that on August 9, 2013, he was working for a security company at the exhibitiongrounds. Shortly after he started his shift, he was asked to attend to an assault that was occurring at the Sports on Tap bar. He wentaround the corner of the building and saw a female bent forward over the railing outside the bar entrance while a male was “forcefully”yelling at her. Cpl. Loucks called for back-up before handcuffing and restraining that male. Cpl.

Loucks testified that he did not recallany physical contact between the male and the female. [3] He acknowledged that he provided a written witness statement to the police within 10 to 15 minutes of the incident occurringand that he had an opportunity to review that statement prior to testifying; however, it did not refresh his memory. He has noindependent recollection of seeing “the male punching the female as she was bent over the red railing to the south doors of Sports onTap” as he wrote in his statement.

Nor did he have an independent recollection of “notice(ing) one male assaulting a female as Iproceeded to make a call for back-up.” The statement in question was handwritten by Cpl. Loucks, without assistance. He “believedeverything to be truthful” in his statement so he signed it and handed it to the police: see transcript p. 211, lines 27-29. [4] The Court is satisfied that the statement sought to be tendered falls within the past recollection recorded exception to thehearsay rule. The question is whether the statement is sufficiently reliable for its admission for the truth of its contents.

Thepreconditions for admissibility were concisely set forth by the Ontario Court of Appeal in R v Richardson, (ON CA),2003 OJ No 3215 [Richardson] with reference to R v Fliss, 2002 SCC 16 [Fliss] and Wigmore on Evidence (Chadbourn rev. 1970), vol.3, c. 28, para. 744. At para 26, the Court listed the following conditions: 1. Reliable record: The past recollection must have been recorded in a reliable way. This requirement can be broken down into twoseparate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy ifsomeone else prepared it.

Second the original record must be used if it is available. 2. Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in thewitness’s mind to be vivid and likely accurate. 3. Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events. 4.

Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy ofthe assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertionswere recorded. [5] In the case at hand, the Court is satisfied that the first three conditions have been met. However, the Court is not satisfiedthat the witness has adequately vouched for the accuracy of the events for which he no longer has a memory. Although Cpl.

Louckstestified that he “believed everything to be truthful”, it is the view of the Court that this is not an unequivocal assertion that his statementcontained reference only to things he personally witnessed and that he accurately recorded those things in his statement. Without thatassurance, the Court cannot be satisfied of the reliability or accuracy of the statement made in the first instance. Accordingly, the Courtwill consider the viva voce evidence of Cpl. Loucks without reference to the written statements for which he had no memory.

(ii) Did the accused act in self-defence? [ 6 ] Charles Gallagher testified that he was employed as a bartender on August 9, 2013 at a business premises known as Sports on Tap. In the early afternoon, a couple came in and he served them drinks. The Court is satisfied from the evidence that this was the accused and the complainant, Ms. Cameron. After about an hour or so they left but later returned and had a few more drinks. They left a second time and he was serving customers on the floor when he again noticed the same couple. Over the noise of the crowded bar, he heard the accused yelling loudly at Ms. Cameron.

Mr. Gallagher was about 25 feet away, but the room was well lit and he had a clear view. [ 7 ] He could not recall the words that were yelled but immediately after, the accused struck Ms. Cameron. His right hand was raised and he struck her on the back with enough force that she “flew hard into the bar top”. She was described as “jolting” forward. Mr. Gallagher did not see the female do anything to the male prior to this blow. Afterward, she began to cry. The accused looked angry. Mr. Gallagher set down his tray and went over to calm them down.

He focused on the accused who initially appeared quite angry with him. He reminded the accused of their earlier conversations and guided him away from the bar toward the foyer and the outside doors. Mr. Gallagher wanted to get the accused away from Ms. Cameron and out of the bar as they do not tolerate physical violence on the premises. [ 8 ] As they neared the exit, the accused stopped and threatened to punch Mr. Gallagher. He raised his right hand. Mr. Gallagher opined that the accused was intoxicated, as his words were slurred and he vacillated between being “a nice guy” and being aggressive.

At times he did not make sense. Near the exit, he became agitated; Mr. Gallagher stated “you’re not going to hit me” whereupon the accused turned and walked back into the bar. Another employee of the bar, Mr. Sander had accompanied them toward the door and intervened when the accused turned back inside. When the accused got close to Mr. Sander, he grabbed him and tripped him to the ground within five feet of Mr. Gallagher. This happened so quickly that Mr. Sander had no opportunity to react. While Mr. Sander was on the ground, Mr. Gallagher reached for the accused and escorted him outside the front doors. Mr.

Gallagher then noticed that Ms. Cameron was also outside and the two were yelling at each other. The accused slapped her face and it appeared that she bit his finger because it began to “pour blood”. The accused was also kicking at Ms. Cameron. His right leg connected with her left leg in what appeared to be a very hard kick. The accused used his right hand to hit Ms. Cameron on the upper body and then the face. After the first kick, Ms. Cameron was crying and saying “stop, stop, come on stop”. [ 9 ] It was not until after the first three of these blows that Mr.

Gallagher noticed that the accused was bleeding but could not say from which hand. He saw no blood while they were inside and said he would have reacted differently to avoid contact with blood. He did not see Ms. Cameron do anything other than defend herself. Flaman Security arrived, handcuffed the accused and held him for the police. He did not deal with Ms. Cameron so did not see any injuries to her. While the accused and Ms. Cameron were outside, they were face to face and near a railing that protected the entrance ramp. Ms. Cameron was against the rail but there was nothing behind the accused.

As the accused kicked her, she raised her leg as though to block the kicks and lifted her hands to block him from hitting her. [ 10 ] Ms. Cameron began to cry inside the bar and continued to cry outside. Mr. Gallagher did not see Ms. Cameron do anything to the accused before he hit and kicked her. He described her body language as defensive not aggressive. [ 11 ] In cross-examination, Mr. Gallagher said that the couple first showed up in the bar between noon and 1:00 p.m. when there were less than 200 people in the bar. They stayed for one to one and one-half hours.

He could not comment on the accused’s condition at that point although he “seemed okay” and did not have an excessive amount to drink while in the bar. The two appeared to be getting along well. On the second occasion, he could not say whether they sat at the table or at the bar or what time they returned. The third time, he saw them walking up to the bar between 6:30 p.m. and 7:00 p.m. but had not seen them entering the premises. He confirmed that the accused yelled before Ms. Cameron was struck but did not recall what was said. He did not see Ms.

Cameron strike the accused but had no knowledge of what transpired immediately before the yelling. He did not hear the accused say “ouch” or “it hurt”. When he approached the two, he simply asked the accused, who also appeared upset, to leave. [ 12 ] While being escorted out, the accused turned and became aggressive in the vestibule entry when Mr. Sander was five to 10 feet away. No conversation preceded his change in demeanour. The accused re-entered the lounge and met Mr. Sander near the tables. He did not recall Mr. Sander touching the accused on the shoulder or identifying himself as an employee. Mr.

Sander was close enough that the accused was able to sweep his feet out from under him. Mr. Gallagher then got behind the accused, put his hands around his

chest and walked him out. [ 13 ] Mr. Gallagher described himself as considerably smaller than the accused but was able to escort him out of the premises without any resistance. Mr. Gallagher was not sure if Ms. Cameron was already outside when the accused went out but he did see them standing within two feet of each other. They were approximately 10 to 15 feet away and were yelling and screaming at each other but he could not recall the words. He did not see Ms. Cameron kick the accused and did not believe he had missed anything in their encounter. He did not hear the accused shouting “quit kicking me”.

He saw the accused make contact with Ms. Cameron’s face once and take one kick for certain. He also saw him strike her left arm with an open hand. He did not recall Ms. Cameron holding onto the accused. The altercation outside lasted approximately 10 to 20 seconds. [ 14 ] Based on his experience working in a bar, he believed that both the accused and Ms.

Cameron were drunk based on their speech, behaviour and balance issues. [ 15 ] The next witness was Vincent Sander, another employee of Sports on Tap whose responsibilities included mixing and serving drinks, stocking supplies, asking people to leave and escorting them out of the premises if necessary. On August 9, 2013, he heard a commotion at the bar and saw the accused and Ms. Cameron standing about two feet apart engaged in what appeared to be a heated argument. They were yelling at each other and then the accused hit Ms.

Cameron with sufficient force that her earring came out and fell by the ice bucket on the bar. The blow almost knocked her off her feet and came “out of nowhere”. She was struck on her head and cheek and fell forward and to the side, onto the bar top. He got between the two and told the accused that he had to go. Mr. Gallagher came in quite quickly and began escorting the accused to the front of the building. Other staff remained to deal with Ms. Cameron so he followed behind Mr. Gallagher and to his left. At the foyer, the accused turned and began walking back into the bar so he stepped in front of him.

He did not approach the accused but merely stood his ground. When the accused was four feet away, he was told that he could not come back in the bar. The accused covered the distance between them, grabbed his shirt front and either body checked or threw him to the floor. He struck and injured his elbow on the metal base of a table. The accused also raised a fist as though to punch although Mr. Sander was uncertain if that occurred before or after he was thrown to the ground. [ 16 ] As Mr. Sander scrambled from the floor, Mr.

Gallagher came in, wrapped his arms around the accused from behind and escorted him to the door. He followed Mr. Gallagher and helped push the accused outside. To the best of his knowledge, Ms. Cameron was at the bar with other staff members. Once the accused was outside, Mr. Sander saw her come running out. Mr. Sander recalled lots of kicking, slapping and blood. When asked if they continued to fight, he responded that the accused was attacking Ms. Cameron and she “just took it” while the accused slapped and kicked her multiple times. Outside, Ms.

Cameron initially tried to talk to the accused but he started kicking and slapping her. They were between the door and the railing which was eight to 10 feet from the door. He described the kicks as “soccer kicks” directed at Ms. Cameron’s legs. He could not recall how many kicks there were except to say that there were more than two. He described the slapping as more violent than the strike in the bar. He also observed a blow to her head and saw her fall a couple of times as the momentum of the blows knocked her to the ground.

She was struck four to five times before anyone could get out to assist her as the accused kept kicking the doors shut whenever bar staff tried to intervene. [ 17 ] He and Mr. Gallagher were in the foyer which had large windows and a clear view of the accused and Ms. Cameron. Eventually he and Mr. Gallagher got outside and people started to gather around the accused. Ms. Cameron was removed from the area. Security staff arrested the accused and held him for the police. [ 18 ] He saw blood but did not know from whom it came. He did not see any injuries but saw blood on both Ms. Cameron and the accused.

He had no dealings with Ms. Cameron during the incident. Outside, Ms. Cameron was trying to talk to the accused as he was hitting and kicking her. She was not fighting back, but was simply trying to block any impact. She had her arms up and appeared to be entreating the accused to quit, to calm down, to go home. [ 19 ] Constable Mireau is a member of the Saskatoon Police Service and was dispatched to attend to a domestic disturbance at the Sports on Tap bar on August 9, 2013. When she arrived, the accused was handcuffed and being dealt with by other officers.

She noted that he had blood on his shirt and was bleeding quite profusely from a rough cut on one of his index fingers that she opined was a bite injury. She spoke to Ms. Cameron who was leaning against the railing in front of the bar and who seemed to be intoxicated. She had glossy eyes, a dazed look and smacked her dry lips as she spoke. She spoke slowly with slurred words and was not particularly coherent or cooperative. Constable Mireau also noted a two to three inch by one half inch abrasion on Ms. Cameron’s left elbow that was slightly oozing blood.

[ 20 ] Roddy Stonne, the father of the accused, testified that on the evening of August 9, Ms. Cameron came to his home at about 10:00 p.m. She was intoxicated and insisting upon going to her job at Creeway Gas. While he was speaking to her, the only light in the house was the stove light so he was unable to see whether she had any injuries. Sometime later that week, he saw the accused with a bandage on one of his left fingers. He was uncertain if there were stitches. [ 21 ] The accused testified that on August 9, 2013, he and Ms. Cameron went to the Exhibition at about 11:00 a.m.

After partaking of some rides, they went to the bar where they shared a pitcher of beer. They then went back to the rides where they met another couple in line. After a time, all four of them decided to go to Sports on Tap; en route the male showed him his Jeep that was in the parking lot. From there they all went to the bar where two pitchers of beer were ordered. Shots were also ordered and Ms. Cameron had two; he had none. The male then stated that he wanted to get high and Ms. Cameron left with him. The accused was “disappointed” with her because of promises she had made to stop using drugs.

Thirty or forty minutes after Ms. Cameron left the bar, he went to look for her. He went to the Jeep, tapped on the window and Ms. Cameron got out to speak to him. He believed that she had been smoking marihuana and asked her to leave. She became angry so he returned to the bar to pay for the drinks. He drank five beer over the day. [ 22 ] As he was standing at the bar, Ms. Cameron approached him and their argument continued. She lowered her arm and clenched her fist, causing him to believe that he would be struck as she had hit him three or four times before August 2013.

As she raised her arm, he told her not to hit and then he pushed her on her back in a forward motion. He agreed that he was near enough to her that he did not need to yell but only did so to prevent being hit. Mr. Gallagher separated them and escorted him toward the front door. As they were walking, he felt someone grab his shoulder without saying anything. This caused the accused to feel frightened so he grabbed that person’s arm, swept his legs out from under and knocked him to the ground. He discovered it was Mr. Sander after the fact. Mr. Gallagher then tried to put him in a headlock and walked him out.

He did not resist. [ 23 ] Once outside, he stood some distance from the doors as he did not know what to do. Ms. Cameron suddenly walked up and punched him in the mouth with her fist. She continued to try to punch him and he repeatedly batted down her hands. She then began kicking him in the shins so he kicked her back. She kept coming so he used both hands to push her whereupon she fell to the ground. When he tried to help her up, she bit two fingers on his left hand. She then got up and he held her against the railing because she kept trying to come at him.

He had his forearm across her back, causing her to bend forward over the railing. He held her in this fashion until they were separated and he was handcuffed. [ 24 ] In cross-examination, the accused said that Ms. Cameron is 5'9" tall and 220 pounds; he is 6'4" and at the time weighed about 310 pounds. He acknowledged that he had received training in wrestling, karate and boxing and had learned how to physically control people. [ 25 ] He denied that he was upset about Ms. Cameron going out to get high with a man they had just met; he was just disappointed.

He did not continue to drink while she was gone, nor did he converse with the female they had met because Ms. Cameron is “a very jealous woman” and he did not want to be caught talking to another woman. He denied that he was upset by Ms. Cameron telling him that he was ruining her fun; he was merely disappointed by her choices. He went to the Jeep because he wanted to leave. He denied feeling any effect from the alcohol that he had consumed. [ 26 ] When Ms.

Cameron approached him at the bar while he was waiting to pay the bill, he agreed that he could have simply stepped back rather than push her into the bar, but said he did not step away because “she already pushed me outside” (by the Jeep). He denied that he struck Ms. Cameron because when he hits, “they go down”. From his knowledge of boxing, he knows how to hit and how to put people down. He was aware that he could very easily physically handle Ms.

Cameron given his size and strength. [ 27 ] He agreed that he could readily distinguish between the staff at Sports on Tap and the patrons and agreed that when he felt a hand on his shoulder, he did not make any assessment of who might be behind him. He disagreed that it would be reasonable for another staff member to touch him as he was being ejected from the premises. He agreed the touch to the shoulder was not accompanied by any other force or by any threatening words.

In spite of this however, he had every reason to believe that he was going to be hurt because he is a large person and “everyone wants to hurt and fight the big guy”. Even though he did not know who had touched his shoulder or whether that person was male or female, he denied that he overreacted. He agreed that Mr. Sander was put to the ground with a lot of force but denied that there was a table within five feet of where that happened.

[ 28 ] He could not say how much time elapsed between being evicted and Ms. Cameron’s appearance outside. Outside, Ms. Cameron came after him, tried to strike him five or six times and actually struck him twice. The other blows he was able to deflect by swatting them down with the palm of his hand. He acknowledged that he kicked her shin and pushed her to the ground where she fell on her elbow. When he reached out to help her up, she grabbed his hand and bit his fingers. She bit hard and he pulled strenuously to free his hand.

When he disengaged his fingers, she came at him again, so he placed his forearm against her back and held her until the others arrived. [ 29 ] He never reported any assault by Ms. Cameron and acknowledged that they have had two children together since the incident in spite of a ‘no contact’ order. He says they have stayed away from each other “for the most part”. [ 30 ] The task of the Court is to weigh the evidence and the conflicting accounts to determine whether assaults occurred.

If the evidence does establish the assaults beyond a reasonable doubt, the Court must go on to consider whether the evidence establishes beyond a reasonable doubt that self-defence does not apply in the circumstances of this case. The accused is not required to prove his innocence: R v Merasty and Corrigal, 2014 SKQB 268 [ Merasty ] at para 178 . In that same paragraph Danyliuk J. quotes R v English , 2012 NLCA 64 : . . .If the accused establishes an air of reality with respect to the components of the defence, the Crown must prove beyond a reasonable doubt that the defence does not apply.

An air of reality is established if “there is evidence on the record upon which a properly instructed jury acting reasonably could acquit. . .” [ 31 ] In the case at hand, the Court is satisfied that the accused committed an assault on both Vincent Sander and on Tammy Cameron. Not only does the evidence of Mr. Gallagher and Mr. Sander support that finding, it is confirmed by the evidence of the accused that he struck and kicked Ms. Cameron and that he grabbed Mr. Sander and put him to the floor. There are, however, discrepancies in the evidence as to the manner and context in which that physical contact occurred.

These differences must be resolved with reference to the principles enunciated in R v W. D . (1991), 1991 CarswellOnt 1015 and R v McKenzie (1996), 1996 CarswellSask 182 (Sask CA) before the question of self-defence is addressed. [ 32 ] After considering all of the evidence, I accept that of Mr. Gallagher and Mr. Sander. Both were sober and objective bystanders with a particular interest in the accused who had disturbed the peace that they were bound to maintain within the bar. They were independent witnesses who were strangers to both the accused and the complainant. They had no agenda except to maintain order.

They gave a coherent, chronological and compelling description of the events inside and outside the bar. They presented in a straightforward manner with no change in their demeanour under questioning by both Crown and defence counsel. They were unshaken in cross-examination. The testimony of the accused was, in my view, less reliable. He had been consuming alcohol, on and off, since midday. According to Mr. Gallagher, whose experience working in a bar would make him eminently qualified to express an opinion on sobriety, the accused was intoxicated.

By his own admission, the accused went from yelling and shoving Ms. Cameron to being calm and non-resistant with Mr. Gallagher to throwing Mr. Sander to the floor. These vacillations are more consistent with drunkenness than sobriety. Further, at times, the accused seemed to make up answers as he went along. For example, when asked why he shoved Ms. Cameron at the bar rather than just step away, he responded that she had pushed him earlier when they were by the Jeep yet he did not mention this important fact in his initial narrative. [ 33 ] Accordingly, the Court makes the following findings of fact.

There is no dispute that, while standing at the bar, the accused pushed Ms. Cameron causing her to fall forward into the bar top. I accept that the accused was angry and shoved her with significant force. Ms. Cameron responded by bursting into tears which is more consistent with her being the victim of an assault, not the aggressor as she was portrayed by the accused. Further, the accused admitted that he could have easily stepped away from Ms. Cameron instead of pushing her. [ 34 ] The next instance in the sequence of events occurred while the accused was being evicted from the premises.

Even if the Court was to accept the evidence of the accused that he threw Mr. Sander to the ground in response to a hand on his shoulder, this would still constitute an assault as the force used by the accused was far in excess of what was necessary in the circumstances. However, I accept the evidence of Mr. Gallagher and Mr. Sander that the accused became agitated near the door and attempted to return to the bar. When waylaid by Mr. Sander, he tossed him to the floor, likely for no other reason but that he could.

The accused says the hand on his shoulder caused him to feel threatened as a result of some of his previous life experiences yet he took no steps to ascertain who was behind him before the assault. Frankly, this version does not make sense. The accused was well aware that he was being escorted out of the premises and that his presence was no longer welcome; it is illogical that he would be attacked from behind under those

circumstances. Further, for someone of the accused’s stature with the training he has, it is incomprehensible that his use of force wouldbe so indiscriminate given his admitted ability to readily injure people. It is, however, completely consistent with the actions of a drunkand angry man as described by Mr. Gallagher and Mr. Sander. [35] The third segment of this incident occurred outside the doors of Sports on Tap. I accept the evidence of Mr. Gallagher and Mr.Sander that the accused was the aggressor. Both were clear that the accused continued to slap and kick Ms. Cameron while she beggedhim to stop.

She did not strike any retaliatory blows but was merely trying to avoid being struck by the accused. Mr. Sander describedthis incident, not as a fight, but as an attack by the accused upon Ms. Cameron who “just took it”. Further, Mr. Gallagher was clear andunshaken in his testimony that there was no blood-letting until after Ms. Cameron had sustained three blows. He was clear on this pointfor good reason: protocol would require that he take a different course of action if there was any risk of exposure to blood. His evidenceas to what transpired outside is supported by the evidence of Mr. Sander.

I accept that while outside, the accused slapped Ms. Cameronon the face and head three times before she bit his finger. He continued to slap and kick her, while she attempted to block the kicks andbegged him to stop. [36] Having rejected the evidence of the accused, I turn to the consideration of whether I am left with a reasonable doubt by thatevidence.

In R v Edwards, 2012 ONSC 3373 , 2012 OJ No 2596 [Edwards] (Ont SC), Code J. wrote at para 20: Accordingly, the so-called “second branch” of W.D. does not require a trier of fact to take evidence that has been completely rejected anduse it as a basis for finding reasonable doubt. This is not rational. The middle ground in W.D. is an “alternative” to complete belief orcomplete rejection and arises when a trier cannot “resolve the conflicting evidence” and cannot find “exactly where the truth of thematter lay”, as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk.

It refers to a state of indecision or uncertainty where thetrier is not “able to select one version in preference to the other”, as Cory J. put it in W.D.S. In the case at bar, Budzinski J. completelyrejected Edwards’ account and completely accepted T.B.’s account. In other words, he was able to resolve the conflict in the evidenceand he was not left in a state of uncertainty.

By stating definitively, “I disbelieve the defendant”, the trial judge could not have been leftin reasonable doubt by that testimony. [37] Having listened carefully to and having thoroughly reviewed all of the evidence, the Court disbelieves and rejects theexplanations of the accused and accepts the evidence of Mr. Gallagher and Mr. Sander where it differs from that of the accused. TheCourt is not left with any reasonable doubt as to the guilt of the accused. [38] Having reached these conclusions, there is no air of reality to self-defence.

This defence requires that the accused act in thebelief that he needs to defend himself against a perceived threat; however, an accused must be reasonable in his apprehension of thatthreat and the force that he uses in response. Thus, there is both a subjective and objective component to this defence: Merasty, para 129. [39] The case at hand is very similar to the recent decision of my brother Judge Jackson in R v Washkowsky, 2014 SKPC 43, 2014 SKPC 043, where the Court rejected the evidence of the accused and accepted the testimony of the complainant.

Indoing so, there was no foundation for self-defence and the accused was convicted. [40] The Court has no hesitation in finding that any blows struck by the accused were unprovoked and not in response to anyassault or threat of assault. Even if the Court had accepted that the accused was responding to the threats of force that he described, hisresponse went far beyond what was necessary particularly given his stature and his training in various forms of physical combat. Inconclusion, the accused is convicted of both counts of common assault on the information. ________________________ M. L. Gray J