Anthony Cornist v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: January 5, 2023
• Docket: 2022 CA 000253
• Status: Unknown

Opinion

RENDERED: JANUARY 6, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-0253-MR

ANTHONY CORNIST APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 20-CR-00967-001

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, JONES, AND MCNEILL, JUDGES.

CETRULO, JUDGE: Appellant Anthony Cornist (“Cornist”) appeals the order of

the Kenton Circuit Court denying his motion for directed verdict of acquittal and

asks this Court to reverse the jury verdict. We deny that request and affirm the

trial court. I. FACTUAL AND PROCEDURAL HISTORY

A jury convicted Cornist of complicity to first-degree burglary;

complicity to first-degree robbery; and, complicity to second-degree assault

following the events of June 5, 2020. On that date, Cornist called his nephew,

Robert Stone (“Co-Defendant Stone”),1 to meet him at the Golden Towers

apartment complex where Cornist lived. Once there, Cornist led Co-Defendant

Stone and an unidentified woman to James Thompson’s (“Thompson”) apartment.

Thompson also lived in the Golden Towers apartment complex and was an

acquaintance of Cornist.

Upon arrival at Thompson’s apartment, Cornist knocked on the door;

then he and Co-Defendant Stone waited out of view of the peephole and the

unidentified woman stood in clear view of the peephole. Once Thompson opened

his apartment door, the woman walked calmly back to the elevator and held it open

while Cornist and Co-Defendant Stone rushed into Thompson’s apartment. Co-

Defendant Stone then pushed Thompson back into the hallway and began beating

him. Co-Defendant Stone beat Thompson to the ground, kicked him in the chest,2

appeared to go through his pockets, and appeared to take something from around

1 Cornist and Co-Defendant Stone were tried together, but Co-Defendant Stone is not a party to this appeal. 2 Although the Commonwealth claimed that Co-Defendant Stone kicked Thompson in the face, Co-Defendant Stone testified that he had kicked him in the chest because the video showed his shoe below Thompson’s chin.

-2- his neck. The camera system of the apartment complex recorded these events from

multiple angles.

At trial in December 2021, the property manager at Golden Towers

(“Property Manager”) testified about the security cameras of the apartment

complex, and she explained that the videos did not contain audio. She further

identified Cornist in the video as the man leading Co-Defendant Stone and the

unidentified woman to Thompson’s apartment, where Cornist pointed out

Thompson’s door to the group.

Next, Thompson testified. He corroborated what was depicted in the

videos and stated that when he heard a knock on his door that night, he looked out

the peephole and saw a woman he did not recognize. When he opened the door,

Cornist and a man he did not know rushed in, there was a tussle, and he was

pushed out into the hallway and beaten. He testified that he passed out briefly, and

when he came to, he heard the men saying, “grab his TV” and “where’s the

money?” He also recounted that Co-Defendant Stone went through his pockets,

but he could not remember if anything was taken.

Thompson also testified that he went to the hospital following the

beating and was treated for a fractured orbital and broken arm, which later required

permanent pins to be placed in his arm. He explained that, as of the day of trial –

-3- 18 months after the attack – he still had sharp pain in his arm and pain in his

shoulder.

Following the Commonwealth’s case-in-chief, Cornist moved for

directed verdict of acquittal, arguing no rational juror could find he was guilty of

complicity with Co-Defendant Stone’s actions. Specifically, he claimed that there

was no evidence that the charged crimes – burglary, robbery, and assault – even

occurred and there was no indication that Cornist was involved or had conferred

with Co-Defendant Stone prior to the events. Further, he argued that Co-

Defendant Stone had pushed him, so he “could not be faulted” for entering the

apartment, and he claimed Thompson’s injuries did not constitute “serious physical

injury” so second-degree assault did not apply.

In response to the motion, the Commonwealth recounted the video

everyone had just watched, which showed Cornist leading the group into the

elevator, to Thompson’s floor, down the hallway to Thompson’s apartment, and

pointing out Thompson’s door. It then showed him knocking on the door while

hiding out of sight of the peephole. Once Thompson opened his door, the video

showed Cornist rounding the corner toward the apartment. The Commonwealth

argued that regardless of whether Co-Defendant Stone pushed Cornist into the

apartment, Cornist was making his way into the apartment, so any alleged push

simply would have gotten him there faster. Additionally, the Commonwealth

-4- argued that the testimony of its witnesses provided adequate evidence that the

crimes did occur, that Cornist was involved, and that Thompson’s injuries

constituted “serious physical injury.”

The trial court agreed with the Commonwealth and noted that,

according to the video, there appeared to be a preconceived plan: Cornist, Co-

Defendant Stone, and the unidentified woman passed numerous other apartments

to target a specific apartment (Thompson’s), which Cornist pointed out.

Additionally, they each appeared to have specific roles, with the female standing in

view of the peephole then going to hold the elevator once the apartment door

opened, and Cornist and Co-Defendant Stone appearing to hide from the peephole

before rushing into the apartment.

After a detailed discussion of Thompson’s testimony, which noted the

entry into his apartment, his extensive injuries, the search of his pockets, and the

discussions of other items to take, the trial court found that a rational juror could

analyze the evidence provided and find the elements were met for each of the

crimes charged. Therefore, the trial court denied Cornist’s motion for directed

verdict.

Next, Co-Defendant Stone testified, in pertinent part, that he met up

with Cornist only because he called him in a frenzy, stating there was a problem.

Co-Defendant Stone admitted that things got out of hand once they reached

-5- Thompson’s apartment, but that he had no intention of committing a crime when

he went to Thompson’s apartment. Lastly, he claimed he never reached inside

Thompson’s pockets. Cornist did not testify.

When the defense rested its case, Cornist renewed his motion for

directed verdict, then-supplemented with the testimony of Co-Defendant Stone.

The Commonwealth incorporated each of its previous responses to the motion and

noted that testimony of Co-Defendant Stone did not negate the previous witnesses’

testimony.

The trial court agreed and found the testimony of Co-Defendant Stone

did not affect its earlier determination that a rational juror could find Cornist guilty

of the crimes charged. Specifically, the trial court acknowledged that a jury could

garner intent for the crimes from the circumstances surrounding the events, despite

testimony of Co-Defendant Stone that he did not intend to commit any crimes.

The jury then convicted Cornist of complicity to first-degree burglary;

complicity to first-degree robbery; and, complicity to second-degree assault. He

appeals all convictions and argues the trial court erroneously denied his motion for

directed verdict of acquittal.

STANDARD OF REVIEW

This Court reviews the denial of a motion for directed verdict under

an “any rational juror” standard, i.e., we must determine whether any rational juror

-6- could have found all the elements of the crime, “viewing the evidence in the light

most favorable to the Commonwealth[.]” Quisenberry v. Commonwealth, 336

S.W.3d 19, 35 (Ky. 2011) (citing Commonwealth v. Benham, 816 S.W.2d 186, 187

(Ky. 1991) (“On appellate review, the test of a directed verdict is, if under the

evidence as a whole, it would be clearly unreasonable for a jury to find guilt[.]”)).

“For the purpose of ruling on the motion, the trial court must assume that the

evidence for the Commonwealth is true, but reserving to the jury questions as to

the credibility and weight to be given to such testimony.” Benham, 816 S.W.2d at

187.

ANALYSIS

Cornist argues that the Commonwealth did not present sufficient

evidence at trial to convict him of his three charges: (A) complicity to first-degree

burglary; (B) complicity to first-degree robbery; and (C) complicity to second-

degree assault. Therefore, he claims the trial court erred when it denied his motion

for a directed verdict of acquittal. We will address each of his convictions in turn.

Importantly, each of Cornist’s convictions were for complicity to

crimes that Co-Defendant Stone committed, not for the commission of the crimes

themselves. As such, it is valuable to first discuss what constitutes “complicity.”

Under KRS3 502.020, “Liability for conduct of another; complicity,” a person is

3 Kentucky Revised Statute.

-7- guilty by complicity “when, with the intention of promoting or facilitating the

commission of the offense” he or she “[s]olicits, commands, or engages in a

conspiracy with such other person to commit the offense” or “[a]ids, counsels, or

attempts to aid such person in planning or committing the offense[.]”

KRS 502.020(1).

Cornist argues that the Commonwealth failed to prove that he

intended to promote or facilitate the commission of a burglary, robbery, or assault

on Thompson. However, the Kentucky Supreme Court has acknowledged that

“[s]eldom is there direct evidence of a defendant’s state of mind, but direct

evidence is not required.” Quisenberry, 336 S.W.3d at 36. In Quisenberry, the

Kentucky Supreme Court – citing Rogers v. Commonwealth, 315 S.W.3d 303 (Ky.

2010) – reiterated that “state of mind – intent in that case – may be established by

circumstantial evidence. That evidence includes the defendant’s ‘actions

preceding and following the charged offense,’ . . . as well as the defendant’s

knowledge and the surrounding circumstances.” Id. (citations omitted). We will

keep this complicity standard in mind as we address each of the charges.

A. Complicity to First-Degree Burglary

Cornist argues that no rational juror could have found him to be

complicit in the burglary because there was no “voluntary act on the part of Cornist

that enables him to be liable for crossing the threshold through the doorway[,]”

-8- because Co-Defendant Stone allegedly shoved him. However, as discussed, the

standard for complicity is not whether the defendant committed the offense, but

whether Cornist engaged in a conspiracy with Co-Defendant Stone to commit the

offense or attempted to aid Co-Defendant Stone in planning or committing the

offense.

Pursuant to KRS 511.020(1)(b),

[a] person is guilty of burglary in the first degree when, with the intent to commit a crime, he or she knowingly enters . . . a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or she or another participant in the crime:

(b) Causes physical injury to any person who is not a participant in the crime[.]

Here, the Commonwealth presented adequate evidence for a rational

juror to find Cornist engaged in a conspiracy with Co-Defendant Stone or aided

him in entering Thompson’s apartment and beating him. The security video

clearly showed Cornist leading Co-Defendant Stone to Thompson’s door, pointing

it out to Co-Defendant Stone (suggesting Co-Defendant Stone would not have

known which door was Thompson’s, otherwise), and hiding with Co-Defendant

Stone before rushing into Thompson’s apartment. Further, Thompson testified that

Cornist held the door open while Co-Defendant Stone beat him and then stood

beside Co-Defendant Stone as he continued to beat him and search his pockets.

-9- Cornist argues that such evidence was not adequate because it failed

to show that there was any agreement between Cornist and Co-Defendant Stone, or

that there was prior knowledge that a criminal act would occur. However, as the

Kentucky Supreme Court emphasized in Quisenberry, intent can be established by

circumstantial evidence. Quisenberry, 336 S.W.3d at 36. That means the jury

could reasonably rely on the security footage and Thompson’s testimony to

determine whether Cornist and Co-Defendant Stone had discussed a plan prior to

going to Thompson’s apartment. The almost-choreographed nature of the events

provided evidence that reasonably could have been perceived as intent to commit

the crimes. Therefore, the trial court did not err when it denied a directed verdict

on this count.

B. Complicity to First-Degree Robbery

Under KRS 515.020(1)(a),

[a] person is guilty of robbery in the first degree when, in the course of committing theft, he or she uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he or she: Causes physical injury to any person who is not a participant in the crime[.]

In Quisenberry, the Kentucky Supreme Court specifically addressed

complicity to robbery: “With respect to robbery, moreover, we also noted in

Rogers [v. Commonwealth, 315 S.W.3d 303 (Ky. 2010)] that to be convicted of

that crime, ‘the accused need not have taken any money or other property from the

-10- victim with his own hands, or actually participated in any other act of force or

violence; it is sufficient that he came and went with the robbers, was present when

the robbery was committed, and acquiesced.’” Quisenberry, 336 S.W.3d at 36.

(emphasis added) (citing Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999)).

There, unlike here, the evidence was entirely circumstantial. There

had been no direct evidence that the defendant had been at the place of the crime

and still, the Kentucky Supreme Court found that there was sufficient evidence to

deny a motion for directed verdict. Id. at 37. Even more convincing, here, we

have a video clearly depicting Cornist leading Co-Defendant Stone to Thompson’s

apartment, pointing it out, hiding until Thompson answered the door, rushing in,

and watching as Co-Defendant Stone beat Thompson and appeared to take

something. Further, Thompson testified that Cornist and Co-Defendant Stone

asked where the money was and contemplated taking his TV after beating him.

In Quisenberry, specifically, the Kentucky Supreme Court concluded

that from the circumstantial evidence presented – i.e., phone records and testimony

that the Co-Defendants had been together on the day of the robbery – a rational

juror could have found that the complicit defendant

was not a mere bystander at the robbery, but that he initiated contact with [the victim], that he shared with [the Co-Defendant] the purpose of [the crime], that he drove the pair to [the victim’s] home, and, however the robbery may have commenced, acquiesced in it once it had, and assisted in the getaway.

-11- Id. at 37.

Therefore, our Supreme Court found there was sufficient evidence of

the defendant’s complicity in the robbery and the trial court did not err. Id.

Here, the case is even more straightforward. The jury did not need to

infer that Cornist initiated contact with the victim or Co-Defendant Stone, nor did

it need to infer that Cornist took Co-Defendant Stone to the location of the crime or

was present and acquiesced once the crime commenced, because it was on the

security footage for the jury to watch first-hand.

Lastly, there was ample evidence that Thompson suffered physical

injury in the course of the robbery. Aside from the video showing Co-Defendant

Stone beating Thompson until he was hunched over on the floor and then kicking

him in the chest, Thompson further testified that during the beating, Co-Defendant

Stone fractured his orbital bone and broke his arm, both of which required medical

attention.

Under these circumstances, a rational juror could have determined that

Cornist engaged in a conspiracy with Co-Defendant Stone to commit the robbery

or that he aided in its commission. As such, the trial court did not err when it

denied Cornist’s motion for directed verdict on this offense.

C. Complicity to Second-Degree Assault

“A person is guilty of assault in the second degree when:

-12- (a) He intentionally causes serious physical injury to another person[.]” KRS

508.020. KRS 500.080(17) defines “serious physical injury,” in pertinent part, as

“physical injury which creates a substantial risk of death, or which causes serious

and prolonged disfigurement, prolonged impairment of health, or prolonged loss or

impairment of the function of any bodily organ.”

Although Cornist acknowledges that the Commonwealth was not

required to present medical testimony to prove “serious physical injury” –

McDaniel v. Commonwealth, 415 S.W.3d 643, 660 (Ky. 2013) (citation omitted) –

he argues that the Commonwealth needed to provide “a more exacting level of

proof” than Thompson’s testimony. Specifically, Cornist claims the

Commonwealth “presented no evidence of Thompson’s shoulder and arm pain, or

how much time, if any, Thompson took to recover.”

However, the Commonwealth argues that, at trial, approximately 18

months after the date of the events, Thompson testified that he still suffered pain in

his shoulder and sharp pain in his arm as a result of the assault by Co-Defendant

Stone’s. Further, Thompson testified that he went to the hospital following the

events and was treated for a fractured orbital and broken arm. To set the arm,

Thompson had to have permanent pins placed in his arm. Thus, the

Commonwealth claims there was sufficient evidence that Thompson suffered

-13- prolonged pain, and therefore serious physical injury, from the assault by Co-

Defendant Stone. We agree.

The Kentucky Supreme Court has held that pain is an impairment of

health and “if it is prolonged, then it is a ‘serious physical injury.’” Parson v.

Commonwealth, 144 S.W.3d 775, 787 (Ky. 2004), overruled on other grounds by

Shields v. Commonwealth, 647 S.W.3d 144 (Ky. 2022). In Parson, the defendant

crashed his car into the victim’s vehicle while driving under the influence. Id. at

777-78. There, the victim testified that she continued to suffer neck pain, muscle

spasms, and numbness in her arm five months after the assault. Id. at 787. She

also testified that she was suffering the effects of her injury at trial, which had

occurred 19 months after the assault. Id. The Kentucky Supreme Court concluded

that “[a] jury could also believe that [the victim] was still suffering from the effects

of her injuries on the day of trial, nineteen months after the assault, and that the

duration of those effects constituted a ‘prolonged impairment of health.’” Id.

As the Commonwealth detailed, Thompson experienced similar

prolonged pain, which had persisted to the date of trial, 18 months or so after the

event. Similar to Parson, here, a jury could have believed that, at trial, Thompson

was still suffering from the injuries from the assault and therefore had a prolonged

impairment of health.

-14- Moreover, a rational juror could have determined that Thompson

sustained a serious physical injury and that Cornist engaged in a conspiracy with

Co-Defendant Stone to commit the second-degree assault or that Cornist aided in

its commission. Therefore, the trial court did not err when it denied Cornist’s

motion for directed verdict on this offense.

CONCLUSION

Based on the evidence presented, viewed in a light most favorable to

the Commonwealth, a rational juror could have determined that Cornist met the

elements of complicity to first-degree burglary, complicity to first-degree robbery,

and complicity to second-degree assault; therefore, the trial court did not err when

it denied the motion for directed verdict of acquittal of Cornist on those counts. As

such, we AFFIRM the trial court.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Chase Cox Daniel Cameron Covington, Kentucky Attorney General of Kentucky

Robert Baldridge Assistant Attorney General Frankfort, Kentucky

-15-