COMMONWEALTH OF KENTUCKY V. JOSHUA SUTTLES
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RENDERED: APRIL 252002
TO BE PU LISHED
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2000-SC-0599-DG
COMMONWEALTH OF KENTUCKY
ON REVIEW FROM COURT OF APPEALS
99-CA-127-M R
KENTON CIRCUIT COURT NO. 98-CR-383
V.
APPELLEE
JOSHUA SUTTLES
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
REVERSING
This appeal is from a decision of the Court of Appeals which reversed the jury
verdict of the circuit court which had found Suttles guilty of complicity to commit firstdegree assault. The Court of Appeals had reversed the conviction because it
determined that there was insufficient evidence to support the complicity conviction.
The sole issue is whether there was sufficient evidence for the jury to convict
Suttles of complicity to commit first-degree assault.
In the early morning hours of June 28, 1998, Suttles, along with his brother and
two friends, Rahm and Charles, were walking to a local grocery store when a pickup
truck occupied by the victim and his brother approached them. According to the victim,
he yelled at the four individuals to get out of the road and continued on his route.
Rahm, on the other hand, testified that he and his companions were walking in the road
because there were no sidewalks; that the pickup truck swerved at them and that
someone in the vehicle yelled something he thought was expletives. In any event, the
pickup truck drove on and Rahm ran after it with Suttles following closely behind and the
remaining two following, The chase covered approximately three city blocks.
Eventually, the vehicle stopped in front of the home of the victim’s mother to drop off the
brother. When the four individuals caught up to the truck a verbal altercation ensued.
The victim’s brother went inside to call the police after Suttles allegedly threatened the
victim with a knife. At some point shortly thereafter, Charles, who had picked up a piece
of rock or concrete during the chase, struck the victim in the head. Suttles, Rahm and
Charles were charged with first-degree assault.
At trial, the victim and his brother stated that during the argument, Suttles had
threatened to cut him (the victim) with a knife. The victim’s brother specifically recalled
seeing a knife in Suttles’ hand. Suttles denied making any threats or cutting anyone
with the knife. Suttles and his companions fled the scene and were later arrested at
Rahm’s residence where a knife was discovered in Suttles’ pocket. Subsequent
laboratory tests on the knife taken from Suttles were negative for blood or hair evidence.
Suttles’ brother and Rahm testified that Suttles had neither threatened nor attacked the
victim.
The jury found Suttles not guilty of assault but convicted him of complicity to firstdegree assault. He waived jury sentencing and agreed to accept the minimum
punishment of ten years in prison. A majority of the Court of Appeals panel reversed
the conviction finding insufficient evidence to support the conviction. This Court
accepted discretionary review.
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On appeal, the Commonwealth argues that the Court of Appeals improperly
reversed the conviction because there was sufficient evidence for the jury to convict
Suttles of complicity to first-degree assault. Suttles responds that he was not a
complicitor in any crime and that Charles acted alone, taking everyone by surprise. He
argues that he did not encourage, aid or abet the actions of Charles and the prosecution
presented no evidence that he had any knowledge of, or intended to promote or
facilitate the commission of any crime.
The complicity statute, KRS 502.020(1)
and (2) reads as follows:
(1) A person is guilty of an offense committed by another
person when, with the intention of promoting or facilitating the
commission of the offense, he:
(a) Solicits, commands, or engages in a conspiracy with
such other person to commit the offense; or
(b) Aids, counsels or attempts to aid such person in
planning or committing the offense; or
(c) Having a legal duty to prevent the commission of the
offense, fails to make a proper effort to do so.
(2) When causing a particular result is an element of an
offense, a person who acts with the kind of culpability with
respect to the result that is sufficient for the commission of
the offense is guilty of that offense when he:
(a) Solicits or engages in a conspiracy with another
person to engage in the conduct causing such result; or
(b) Aids, counsels, or attempts to aid another person in
planning, or engaging in the conduct causing such result;
TJ) Having a legal duty to prevent the conduct causing
the result, fails to make a proper effort to do so.
The standard to be used in reviewing a claim of insufficient evidence is set out in
Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991). It is the same standard used
in reviewing a directed verdict to the effect that under the evidence as a whole, it would
be clearly unreasonable for a jury to find guilt. Only then is a defendant entitled to a
directed verdict of acquittal. Cf. Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983).
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The testimony of even a single witness is sufficient to support a finding of guilt, even
when other witnesses testified to the contrary if, after consideration of all of the
evidence, the finder of fact assigns greater weight to that evidence. Murphv v.
Sowders, 801 F.2d 205 (6th Cir. 1986). On review, the appellate court should not
reevaluate the evidence or substitute its judgment of the credibility of the witnesses for
that of the jury. Commonwealth v. Jones, Ky., 880 S.W.2d
544 (1994).
Here, upon reviewing the evidence presented, the trial judge properly determined
that a reasonable juror could believe, beyond a reasonable doubt, that Suttles was
guilty of complicity to first-degree assault. Thus, the trial judge correctly denied the
motion for a directed verdict based on the evidence before the jury.
The evidence presented by the prosecution is that Suttles, along with his three
companions, pursued the pickup truck at least three city blocks before the vehicle finally
stopped. Suttles stood within two feet of the victim as he and his three companions
confronted him. The victim and this brother testified that Suttles threatened to stab the
victim in the head with a knife and the brother specifically recalled seeing a knife in the
hand of Suttles. After Charles hit the victim in the head with a rock or piece of concrete,
all four fled the scene and were eventually tracked by police to Rahm’s apartment where
the police searched Suttles and found a knife in his pocket.
It has long been held by this Court that intent can be inferred from the act itself
and the surrounding circumstances. See Mills v. Commonwealth, Ky., 996 S.W.2d
(1999); Talbot v. Commonwealth, Ky., 968 S.W.2d 76 (1998); Dishman v.
Commonwealth, Ky., 906 S.W.2d
335 (1995); Stevens v. Commonwealth, Ky., 462
S.W.2d 182 (1970); See also Waters v. Kassulke, 916 F.2d 329 (6th Cir. 1990).
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473
This Court has held that because a person is presumed to intend the logical and
probable consequences of his conduct, a person’s state of mind may be inferred from
his actions preceding and following the charged offense. Hudson v. Commonwealth,
Ky., 979 S.W.2d 106 (1998); see also Parker v. Commonwealth, Ky., 952 S.W.2d 209
(1997); Wilson v. Commonwealth, Ky., 601 S.W.2d
280 (1980). Kessinqer v.
Commonwealth, Ky., 510 S.W.2d 244 (1974), held that a jury can believe that a
defendant is an accomplice to a crime when the evidence presented shows his
companion admitted that he is guilty of that crime.
Here, the evidence presented at trial was sufficient for the jury to reasonably infer
that Suttles intended to harm the victim. It was not clearly unreasonable for the jury to
find that he was guilty of complicity to first-degree assault.
The decision of the Court of Appeals is reversed and the judgment and jury
verdict is reinstated.
Lambert, C.J., Cooper, Graves, Keller, JJ., concur. Johnstone, J., dissents by
separate opinion joined by Stumbo, J.,
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COUNSEL FOR APPELLANT:
Albert B. Chandler III
Attorney General
John E. Zak
Assistant Attorney General
George G. Seelig
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Harry P. Hellings, Jr.
Hellings & Pisacano, P.S.C.
214 East Fourth Street
Covington, KY 41011
Dean A. Pisacano
Hellings & Pisacano
214 East Fourth Street
Covington, KY 41011
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RENDERED: APRIL 25,2002
TO BE PUBLISHED
COMMONWEALTH OF KENTUCKY
APPELLANT
ON REVIEW FROM COURT OF APPEALS
99-CA- 127-MR
KENTON CIRCUIT COURT NO. 98-CR-383
V.
JOSHUA SUTTLES
APPELLEE
DISSENTING OPINION BY JUSTICE JOHNSTONE
Because the evidence in this case does not support a finding that Suttles was
guilty of complicity to first-degree assault, I respectfully dissent.
KRS 502.020 provides two separate and distinct theories of complicity:
“complicity to the act” under subsection (l), and “complicity to the result” under
subsection (2). Tharp v. Commonwealth, Ky., 40 S.W.3d 356, 360 (2000), cert. denied,
~ U.S. -, 122 S. Ct. 289, 151 L. Ed. 2d 213 (2001). The definition o f complicity
included in the instructions in this case establishes that Suttles was convicted under
the “complicity to the act” prong of KRS 502.020:
[A] person is guilty of an offense committed by another person, when, with
the intent of promoting or facilitating the commission of the offense he
solicits, commands or engages in a conspiracy with such other persons to
commit the offense, or aids, counsels or attempts to aid such person in
planning or committing the offense.
The above definition mirrors the language of KRS 502.020(l):
A person is guilty of an offense committed by another person when, with
the intention of promoting or facilitating the commission of the offense, he:
(a) Solicits, commands, or engages in a conspiracy with such other
person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or
committing the offense; or
(c) Having a legal duty to prevent the commission of the offense, fails to
make a proper effort to do so.
A person can be guilty of complicity to the act under subsection (1) “only if he[]
possesses the intent that the principal actor commit the criminal act.” Tharp, 40
S.W.3d at 360 (emphasis in original). The evidence cited by the majority opinion does
not support a finding that Suttles intended the assault on Travis Smith, the victim:
The evidence presented by the prosecution is that Suttles, along
with his three companions, pursued the pickup truck at least three city
blocks before the vehicle finally stopped. Suttles stood within two feet of
the victim as he and his three companions confronted him. The victim
and his brother testified that Suttles threatened to stab the victim in the
head with a knife and the brother specifically recalled seeing a knife in the
hand of Suttles. After Charles hit the victim in the head with a rock or
piece of concrete, all four fled the scene and were eventually tracked by
police to Rahm’s apartment where the police searched Suttles and found
a knife in his pocket.
Slip op. at 4.
At most, the evidence shows that Suttles was present when the argument and
assault occurred. By itself, this is insufficient to support a conviction for complicity.
McIntosh v. Commonwealth, Ky. App., 582 S.W.2d 57, 60 (1979). The testimony that
Suttles had a knife and threatened to cut Smith with it does not support a conviction for
complicity. It is not proof of “active participation” in Charles’ act of assaulting Smith
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with the rock. See Gilbert v. Commonwealth, KY., 838 S.W.2d 376, 380 (1991).
Whether it might support a conviction for a complicity to the result under subsection (2)
is not at issue here. What is at issue is whether there is evidence that Suttles intended
Charles’ assault on Smith - including any act by Suttles from which the necessary
element of intent can be inferred. There is none. Therefore, I would affirm the Court of
Appeals.
Stumbo, J., joins this dissenting opinion.
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