Genesson Beraut v. Commonwealth of Kentucky ( 2023 )

RENDERED: MARCH 3, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0953-MR
GENESSON BERAUT APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
v. HONORABLE KAREN L. WILSON, JUDGE
ACTION NO. 20-CR-00005
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, JONES, AND MCNEILL, JUDGES.
JONES, JUDGE: Genesson Beraut appeals from the Henderson Circuit Court’s
judgment following conviction at his jury trial. The trial court sentenced Beraut to
ten years’ imprisonment after he was found guilty of complicity to a first-degree
robbery committed by his associate, Junior Balan. After a thorough review of the
facts and the law, we affirm.
I. BACKGROUND
At approximately 2:15 p.m. on November 13, 2019, Caitlyn Singh and
Kimberly McClure were working at 41 North Express Liquor, a spirit shop located
next to Highway 41 in Henderson, when two black men of about medium height
walked in wearing hooded sweatshirts or jackets. The raised hoods on both men
were cinched tight, partially obscuring their faces. Security camera video footage
from inside the store showed the men briefly conversing before one of the men,
later identified as Beraut, followed Caitlyn into the “employees only” storeroom.
He began chatting with her while simultaneously raising one leg and placing it on a
box across the aisle, blocking her exit into the main area of the store. Caitlyn
initially thought he was flirting with her, though she later testified that Beraut also
asked her, “what would [she] do if he had a gun?” At first, she thought he was
joking, but he seemed serious. Caitlyn became angry and ordered him out of the
storeroom. She tried to move past Beraut’s raised leg, and he eventually complied
and allowed her to pass.
When Caitlyn emerged into the main part of the store, she saw
Kimberly at the register, hands raised. While Beraut was with Caitlyn in the
storeroom, Balan had pointed a handgun at Kimberly and demanded the cash from
the register. After Kimberly handed over the money, Balan shouted, “let’s go!”
and the two men bolted out the front door of the establishment. Caitlyn and
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Kimberly ran out the door after them, attempting to keep Balan and Beraut in view
as they fled on foot. The two men ran away from Highway 41, down Watson Lane
and past a church, at which point the women lost sight of them.
Meanwhile, Dominique Milan, a friend of Kimberly’s, was driving
toward the store when she saw the women running from it. She asked Kimberly
what was happening, and Kimberly said the store had been robbed. Dominique got
to the store, turned around, and came back to find Kimberly. The women then saw
a gold Buick drive past with Beraut behind the wheel. Kimberly told Dominique
that those were the people who robbed her. At this point, Dominique, who was
still in her vehicle, called 911 to report the robbery, described the gold Buick as the
suspect vehicle, and also told the dispatcher that she was currently following the
Buick. She gave turn-by-turn directions to the police until they caught up to her
and initiated a stop of the Buick. The vehicle had three occupants: Beraut in the
driver’s seat, Beraut’s pregnant girlfriend in the passenger seat, and Balan in the
back seat. After obtaining a search warrant for the vehicle, police investigators
recovered $445 in cash inside a pink fanny pack located on the floorboard of the
front passenger seat, where it was covered by a black hooded jacket.
Approximately four months after this incident, a rusting handgun resembling the
one used in the robbery was found in the yard of a residence near the church where
the two men had fled.
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When questioned by Henderson police, Beraut initially declined to
provide his personal information and stated he did not know anything about the
robbery. He also initially told police he had not been inside the liquor store. In a
second interview, however, Beraut admitted his previous statement was false and
he had been inside the liquor store, but he was only there to flirt with the clerk.
The interviewer, Detective Jake Isonhood, stopped Beraut’s account to express his
disbelief that Beraut would go inside the liquor store and flirt with Caitlyn while
his pregnant girlfriend was waiting in the vehicle outside. Reviewing the security
camera footage from the store, Detective Isonhood later described it to the jury in
the following way:
They walk in, kind of walk around a little bit. At one
point in time, you see both of them go into the corner,
almost like they are talking, that is what it appears they
are doing, at which time Mr. Balan goes around, goes
toward the counter where Kim is, at which time Mr.
Beraut walks around and looks to see what Mr. Balan is
doing and then goes towards the back of the store.
Once in the back of the store, he places his leg on the
box, preventing Caitlyn from going out. You see her try
to shove the foot. She is not able to. She points and then
eventually they work their way out.
Whenever they work their way out you can hear, because
it is audio and video on the one where Kim is at, you can
hear Mr. Balan yell, “let’s go,” and that’s when both of
them, not just one of them, take off running out of the
store.
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As a result of this incident, the Henderson County grand jury indicted
Beraut on one count of complicity1 to first-degree robbery.2 During Beraut’s jury
trial, the Commonwealth presented testimony from Caitlyn, Dominique, and
Detective Isonhood detailing the aforementioned sequence of events. In addition,
Officer Jeremy Ebelhar, also of the Henderson Police Department, testified
regarding the physical items recovered from the scene, i.e., the clothing, fanny
pack, and cash recovered in the search of the gold Buick, as well as the handgun
which was found four months afterward. The Commonwealth also provided the
jury with the opportunity to view the liquor store’s security camera footage.
Beraut testified in his own defense. He conceded that the evidence
pointed to Balan robbing the liquor store but vigorously asserted that he knew
nothing about Balan’s plan. Beraut testified that he, his girlfriend, and Balan were
on a road trip to Alabama when they stopped to smoke marijuana. According to
Beraut, Balan did not want to drink the beer they had in the car, and so he went
inside the store to purchase liquor. Beraut claimed he followed Balan inside the
store because he was out of paper to roll marijuana cigarettes. He asserted the
hood was cinched tight around his face because it was cold outside. While inside
the store, Beraut said that Balan encouraged him to flirt with the clerk. Beraut
1
Kentucky Revised Statutes (KRS) 502.020.
2
KRS 515.020, a Class B felony.
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admitted he placed his leg on the box to prevent Caitlyn from walking away, but he
claimed that his goal was to keep her talking to him as long as possible to increase
his chances of getting her telephone number. Beraut admitted he may have talked
to Caitlyn about a gun, but he did not remember the specific context for that
particular topic. Beraut then claimed he did not know that Balan was carrying a
gun, nor that Balan intended to rob the clerk, and he ran when Balan yelled “let’s
go” because he wanted to get away from the situation.
Of particular relevance to this appeal, the prosecutor questioned
Beraut on cross-examination regarding his current relationship with Balan. The
prosecutor asked if Beraut was still upset with Balan about the robbery. When
Beraut answered affirmatively, the prosecutor asked why, if he were so upset with
Balan, that he continued to have conversations with him in telephone calls from
jail. Beraut answered that he still talks to him because this situation is not finished,
and he wants Balan to tell the truth about the incident. Beraut clarified that he does
not hate Balan, but he is no friend. The prosecutor, placing a different slant on the
conversations, asked Beraut if he was conversing with Balan in order to “get[] a
story straight,” i.e., collaborate on a narrative regarding the robbery.
After the prosecutor finished its cross-examination, defense counsel
approached the bench and asked to confer with Beraut before examining him on
redirect. The prosecutor objected, and defense counsel took issue with the use of
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Beraut’s telephone calls from the jail in the prosecutor’s cross-examination, stating
that these telephone calls were not disclosed to the defense in discovery. The
prosecutor pointed out that defense counsel had never actually moved for
discovery in this case; nonetheless, the prosecutor’s office had “tried to provide
[counsel] with everything [it] had, voluntarily.” Defense counsel admitted he was
aware Beraut had conversed with Balan, but he was not aware that the prosecutor
also had knowledge of those calls. The prosecutor stated he did not actually
possess the recorded telephone calls from the jail, but he had merely become aware
that Beraut had made calls to Balan the day before trial. In short, the prosecutor
asserted he had no evidence to disclose because he was unaware of the contents of
any specific conversations between the two men.
At this point, defense counsel moved for a mistrial on the basis that
the Commonwealth had withheld evidence which was inculpatory or exculpatory
or possibly both. The trial court denied the motion on the basis that defense
counsel was already aware of the contact between Beraut and Balan. The trial
court also expressed its wish for counsel to get away from this line of questioning
altogether. Defense counsel then expressed how it was unfair that he was unable to
question Beraut about the telephone calls on redirect in order to address what the
Commonwealth had brought up in cross-examination. The trial court then allowed
Beraut to testify by avowal that he did not conspire with Balan about collaborating
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on a story. Beraut asserted that Balan was willing to tell the truth about his
innocence, but he was now out of the country and residing in Haiti.3
After the submission of all evidence, the jury deliberated and found
Beraut guilty of complicity to first-degree robbery. The jury thereafter
recommended a sentence of ten years’ imprisonment, and the trial court sentenced
Beraut in accordance with the jury’s recommendation. This appeal followed.
II. ANALYSIS
Beraut presents three issues to this Court on appeal. First, he argues
the trial court erroneously denied his motion for a directed verdict of acquittal.
Second, Beraut argues the trial court erroneously denied his request to instruct the
jury on facilitation. Third, Beraut argues the Commonwealth failed to disclose
exculpatory evidence when it did not inform defense counsel about his telephone
calls to Balan from jail. We will consider each issue in turn.
In his first issue on appeal, Beraut contends the trial court erroneously
failed to grant his motion for a directed verdict, asserting the Commonwealth failed
to produce evidence showing he “had the requisite prior knowledge and intent to
justify a conviction for complicity to commit robbery.” (Appellant’s Brief at 10.)
3
The record does not explicitly state what happened to Junior Balan following the robbery.
After the police stopped the gold Buick, Beraut and his girlfriend were taken to the police station
while Balan was taken away separately by ambulance for unknown reasons. There is nothing in
the record to indicate whether Balan was in jail awaiting trial, imprisoned, found innocent after a
separate trial – or whether he somehow ended up in Haiti, as Beraut attested.
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Beraut asserts the Commonwealth’s case fails to prove that he knew Balan
intended to rob the liquor store or that he aided Balan in the commission of the
robbery.
In a preserved motion for directed verdict, “the trial court must draw
all fair and reasonable inferences from the evidence in favor of the
Commonwealth” and “must assume that the evidence for the Commonwealth is
true[.]” Hall v. Commonwealth, 645 S.W.3d 383, 392 (Ky. 2022) (quoting
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)). Furthermore, to
defeat a preserved motion for directed verdict, “the Commonwealth must only
produce ‘more than a mere scintilla of evidence.’” Lackey v. Commonwealth, 468
S.W.3d 348, 352 (Ky. 2015) (quoting Benham, 816 S.W.2d at 187). Beraut
contends this issue is “partially preserved” because he moved for a directed verdict
at the conclusion of the Commonwealth’s case but failed to renew the motion at
the close of the defense’s case. Beraut’s claim of “partial preservation” is incorrect
because a failure to renew a directed verdict motion results in unpreserved error.
“[E]ven the most specific motion for a directed verdict that is made at the close of
the Commonwealth’s case but not renewed at the close of all evidence . . . is
insufficient to preserve an error based on insufficiency of the evidence.” Early v.
Commonwealth, 470 S.W.3d 729, 733 (Ky. 2015) (internal quotation marks and
citation omitted).
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Nonetheless, an unpreserved directed verdict motion may still be
reviewed for palpable error under RCr4 10.26; see Potts v. Commonwealth, 172
S.W.3d 345, 348 (Ky. 2005). “Palpable error requires a showing that the alleged
error affected the ‘substantial rights’ of a defendant, where relief may be granted
‘upon a determination that manifest injustice has resulted from the error.’” McCoy
v. Commonwealth, 553 S.W.3d 816, 822 (Ky. 2018) (quoting RCr 10.26).
Manifest injustice occurs when “the error so seriously affected the fairness,
integrity, or public reputation of the proceeding as to be ‘shocking or
jurisprudentially intolerable.’” Id. (quoting Martin v. Commonwealth, 207 S.W.3d
1, 4 (Ky. 2006)).
The trial court’s instruction on complicity mirrored the relevant
statutory language from KRS 502.020:
(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[.]
Beraut claims he was entitled to a directed verdict because the Commonwealth
failed to produce evidence that Beraut knew Balan intended to rob the liquor store
4
Kentucky Rules of Criminal Procedure.
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or that he aided Balan in the attempt. However, in determining criminal liability
for complicity, “[i]ntent can be inferred from the actions of an accused and the
surrounding circumstances” and “[t]he jury has wide latitude in inferring intent
from the evidence.” McCoy, 553 S.W.3d at 822 (citations omitted).
The Commonwealth’s evidence showed Beraut and Balan entered the
liquor store with their faces partially concealed by the tightly cinched hoods on
their sweatshirts. The two then briefly conferred before splitting up, at which point
Beraut distracted one clerk while Balan robbed the other. The evidence then
showed that Beraut immediately fled along with Balan when Balan shouted “let’s
go.”5 Following their flight from the liquor store, Beraut and Balan were
apprehended in a vehicle Beraut was driving. The Commonwealth’s evidence is
largely circumstantial, but “[i]t has long been the law that the Commonwealth can
prove all the elements of a crime by circumstantial evidence.” Commonwealth v.
Goss, 428 S.W.3d 619, 625 (Ky. 2014). Similarly, a motion for directed verdict
may be defeated by the Commonwealth’s circumstantial evidence “as long as the
evidence taken as a whole shows that it was not clearly unreasonable for the jury to
find guilt.” Id. at 626 (quoting Bussell v. Commonwealth, 882 S.W.2d 111, 114
(Ky. 1994)).
5
We note here that it is a long-standing principle of Kentucky law that “flight is always some
evidence of a sense of guilt.” Day v. Commonwealth, 361 S.W.3d 299, 303 (Ky. 2012) (quoting
Rodriguez v. Commonwealth, 107 S.W.3d 215 (Ky. 2003) (quoting Hord v. Commonwealth, 227
Ky. 439, 13 S.W.2d 244, 246 (1928))).
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Under the facts of this case, the Commonwealth’s evidence amounts
to more than a scintilla, which would suffice to defeat even a preserved directed
verdict motion. Here, when the motion was not preserved for our review, we
cannot say Beraut was entitled to a directed verdict as a matter of manifest
injustice sufficient to show palpable error.
For his second issue on appeal, Beraut contends the trial court
erroneously denied the jury an opportunity to convict him on a lesser offense when
it denied his proffered jury instruction on facilitation. First-degree robbery is
defined in KRS 515.020(2) as a Class B felony, punishable by a term of ten to
twenty years in prison. The trial court declined to offer an instruction on
facilitation, which would have allowed the jury to convict and sentence Beraut to a
term of one to five years in prison as a Class D felony offender pursuant to KRS
506.080. Under that statute,
[a] person is guilty of criminal facilitation when, acting
with knowledge that another person is committing or
intends to commit a crime, he engages in conduct which
knowingly provides such person with means or
opportunity for the commission of the crime and which in
fact aids such person to commit the crime.
KRS 506.080(1).
“Generally, a trial court is obligated to instruct the jury upon every
theory reasonably supported by the evidence. Each party to an action is entitled to
an instruction upon his theory of the case if there is evidence to sustain it.”
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Jackson v. Commonwealth, 481 S.W.3d 794, 797 (Ky. 2016) (emphasis added)
(internal quotation marks and citation omitted). “[A] trial court’s decision on
whether to instruct on a specific claim will be reviewed for abuse of discretion[.]”
Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015), overruled on other grounds
by University Medical Center, Inc. v. Shwab, 628 S.W.3d 112 (Ky. 2021). “[A]
trial court abuses its discretion when its decision is arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Id. at 203 (citing Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999)).
Beraut correctly states that facilitation is a lesser-included offense of
complicity, citing Chumbler v. Commonwealth, 905 S.W.2d 488, 499 (Ky. 1995).
However, “[a]n instruction on a lesser included offense requiring a different mental
state from the primary offense is unwarranted unless there is evidence supporting
the existence of both mental states.” Murray v. Commonwealth, 399 S.W.3d 398,
410 (Ky. 2013) (quoting Taylor v. Commonwealth, 995 S.W.2d 355, 362 (Ky.
1999)). Both complicity and facilitation
require knowledge that “the principal actor is committing
or intends to commit a crime.” But to prove criminal
facilitation, evidence must be shown that the accused
only “provided the means or opportunity to commit a
crime” and is designed to convict an individual “who is
‘wholly indifferent’ to the actual completion of the
crime.” On the other hand, complicity requires the
accused to “intend that the crime be committed” and
engage in “solicitation, conspiracy, or some form of
assistance.”
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Id. at 411 (quoting Thompkins v. Commonwealth, 54 S.W3d 147, 150 (Ky. 2001)).
Here, the facts of the case did not support a facilitation instruction. If
the jury believed the Commonwealth’s version of the facts, Beraut was guilty of
complicity to first-degree robbery. However, the defense’s evidence, adduced
through Beraut’s testimony, was that Beraut possessed no knowledge that Balan
intended to rob the liquor store. Facilitation requires “knowledge that another
person is committing or intends to commit a crime[.]” KRS 506.080(1). Beraut’s
evidence, if the jury accepted it as true, would make him an innocent bystander and
not a facilitator.
This issue has been raised in a number of similar previous cases
brought to the Kentucky Supreme Court; see, e.g., Fairley v. Commonwealth, 527
S.W.3d 792 (Ky. 2017); Murray v. Commonwealth, 399 S.W.3d 398 (Ky. 2013);
Monroe v. Commonwealth, 244 S.W.3d 69 (Ky. 2008); and White v.
Commonwealth, 178 S.W.3d 470 (Ky. 2005). These precedents indicate that when
the “evidence at trial supported only two theories: that Appellant was an active
participant in planning the crime and intended that it be carried out, or that he was
an innocent bystander . . . [t]here was no middle-ground violation of the facilitation
statute.” Murray, 399 S.W.3d at 411 (quoting White, 178 S.W.3d at 490-91). “As
[the appellant] denied knowing that a robbery was ongoing, he lacked the requisite
mental state to commit facilitation to first-degree robbery. Accordingly, the trial
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court properly denied [the appellant’s] requested jury instruction.” Fairley, 527
S.W.3d at 800. We discern no abuse of discretion in the trial court’s decision not
to grant a facilitation instruction.
For Beraut’s third and final issue on appeal, he contends the
Commonwealth failed to disclose to the defense that it had learned of his telephone
calls to Balan. In so doing, Beraut argues the Commonwealth violated its duty to
disclose exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963). As summarized by our Supreme Court, “[i]n
Brady, the United States Supreme Court held that ‘the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.’” Commonwealth v. Parrish, 471
S.W.3d 694, 697 (Ky. 2015) (quoting Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97).
The current version of the Brady doctrine requires the prosecutor to always
disclose material exculpatory evidence to the defense. “The duty to disclose
exculpatory evidence is applicable regardless of whether or not there has been a
request by the accused[.]” Commonwealth v. Bussell, 226 S.W.3d 96, 100 (Ky.
2007) (citing United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2397, 49 L.
Ed. 2d 342 (1976)).
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Beraut admits he did not file a request for discovery as outlined in
RCr 7.24. “Non-exculpatory discovery is a vehicle driven by the defense. . . .
When ‘the present appellant made no request for any discovery permitted by the
rules,’ there are no grounds for reversal on the purported discovery violation.”
Dixon v. Commonwealth, 519 S.W.3d 396, 400 (Ky. App. 2017) (footnote omitted)
(quoting Davis v. Commonwealth, 463 S.W.2d 133, 135 (Ky. 1970)). The
exception to this rule, as previously noted, is for material exculpatory evidence
pursuant to Brady. The resolution of Beraut’s current issue, therefore, lies in
whether the Commonwealth’s general knowledge that Beraut had conversed with
Balan in jail was material exculpatory evidence falling under Brady. We hold it
was not.
First, “Brady only applies to information ‘which had been known to
the prosecution but unknown to the defense.’” Bussell, 226 S.W.3d at 100
(quoting Agurs, 427 U.S. at 103, 96 S. Ct. at 2397). As the trial court noted during
the trial, defense counsel admitted knowing Beraut was in contact with Balan.
This alone removes the issue from Brady. Defense counsel argued during the trial
that he knew Beraut and Balan had been speaking, but he was unaware that the
Commonwealth was aware of that information. This is unconvincing at best;
inmates and criminal defense attorneys are generally aware that jail telephone calls
are recorded. See Ward v. Commonwealth, 587 S.W.3d 312, 319 (Ky. 2019)
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(“Another prosecutor explained that both parties to a jail call receive a recorded
message stating that the call is being recorded, but defense counsel responded to
that assertion by stating that the message also includes an assurance that attorney-
client conversations are not recorded.”).
Secondly, to fall under the Brady rule, the evidence must be material.
“Undisclosed evidence is material if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different. A reasonable probability is the probability sufficient to undermine
the confidence in the outcome.” Shegog v. Commonwealth, 275 S.W.3d 728, 731
(Ky. App. 2008) (internal quotation marks and citations omitted). The
Commonwealth provided significant evidence at trial included surveillance video
of Beraut and Balan in the liquor store, eyewitness testimony, and clothing and
cash seized from the vehicle. The defense case consisted of Beraut’s admission
that Balan committed the robbery but denial of knowledge of Balan’s intention to
commit the crime. On the whole, there is no reasonable probability that disclosure
to the defense would have resulted in a different verdict. Beraut and Balan were
friends before the robbery, and it is not surprising that they would be talking to
each other after the robbery. The exact substance of those conversations was never
submitted for the jury’s consideration. The Commonwealth’s knowledge that
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Beraut and Balan conversed in jail telephone calls, without more, did not amount
to material evidence.
Finally, the Brady rule requires the undisclosed evidence to be
exculpatory. Here, the Commonwealth asked about Beraut’s conversations with
Balan in such a way as to define them as inculpatory, if anything, suggesting that
the two men were concocting a common narrative to defend against the robbery
charges. Beraut’s own explanation of the conversations was that he was trying to
convince Balan to take responsibility for the robbery and exonerate him. The
Commonwealth admitted during the bench conference with the trial court that it
did not know the exact substance of the conversations. Under these circumstances,
we cannot say the Commonwealth withheld exculpatory information from the
defense. We discern no error.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kayla D. Deatherage Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Christina L. Romano
Assistant Attorney General
Frankfort, Kentucky
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