dissenting.
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 (1), 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 of 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(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.
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.
Op. at 426.
At most, the evidence shows that Suttles was present when the argument and as*428sault occurred. By itself, this is insufficient to support a conviction for complicity. McIntosh v. Commonwealth, Ky.App., 582 S.W.2d 54, 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 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.