Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of the City of St. Louis. Honorable Margaret M. Neill.
FOR APPELLANT: Maleaner R. Harvey, St. Louis, MO.
FOR RESPONDENT: Chris Koster, Attorney General, Richard A. Starnes, Asst. Attorney General, Jefferson City, MO.
ROBERT G. DOWD, JR.
Marshall Burrage appeals from the judgment entered after a jury trial on his convictions for second degree felony murder, attempted delivery of marijuana and armed criminal action. We affirm.
Burrage and his cousin--a known drug dealer from Kansas City--were driving around St. Louis one day when Burrage got a call from a person whose friend (hereafter " the victim" ) was interested in purchasing marijuana. Burrage was known to have a connection to people who sold marijuana, namely his cousin. Burrage asked his cousin the cost for three pounds of marijuana and then conveyed that information to the person on the phone and told him to have the victim call Burrage. When the victim called, Burrage confirmed the price, and the victim agreed to buy three pounds of marijuana for $1950. Burrage expected to get " something" when the deal was done.
Burrage drove to his house--where his cousin was staying while in town--to retrieve the marijuana stashed in his cousin's suitcases. They put the drugs in the vehicle, and Burrage called the buyers about where to meet. Burrage suggested a couple of places, but ultimately the buyers wanted to meet in their own neighborhood. Burrage drove to the designated meeting place, and, as they approached, his cousin slipped into the back passenger seat because he did not want any of the buyers sitting behind him.
As Burrage pulled up to the meeting spot, there were men waiting. When the vehicle stopped, the victim walked around the back of the vehicle, got into the front passenger seat and kept the door propped open with his foot. Burrage and his cousin asked about the money, and then Burrage noticed one of the other men (hereafter " the victim's accomplice" ) approaching the vehicle. The victim's accomplice attempted to get inside the back seat on the driver's side. At this point, Burrage also noticed that the victim did not appear to have any money and figured out that they were going to be robbed. In fact, as it turned out, the victim and his accomplices never had any intention of paying for the drugs and had always planned to rob Burrage and his cousin.
Burrage saw the victim's accomplice reach for a bulge at his side and then saw the nose of a gun. Multiple shots were fired. The victim jumped out, and Burrage drove away. Burrage heard more shots being fired as they drove away, and the victim's accomplice was seen on a surveillance video firing a .45 caliber gun as the vehicle drove away. All of the seven casings recovered from the scene were .45 caliber and had been fired from the same automatic weapon. But there was also a copper jacket found at the scene that could have been fired from an automatic weapon or a revolver. Unlike an automatic weapon, revolvers do not discharge their casings. Burrage knew his cousin usually carried a big revolver and told police that he believed his cousin had his gun with him that day; he also said he " probably" fired the gun during the incident. The victim was later found nearby, having died of a gunshot wound through his back. The nature of the wound was consistent with either being fired by a person seated behind the victim (which could have been Burrage's cousin) or by a person off to the victim's left side (which could have been the victim's accomplice).
The jury found Burrage guilty--on a theory of accomplice liability--of attempting to sell more than five grams of marijuana, armed criminal action and second degree felony murder. On appeal, Burrage challenges the sufficiency of the evidence on all three counts.
Our review is limited to determining whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Bowman, 337 S.W.3d 679, 688 (Mo. banc. 2011). The evidence is viewed in the light most favorable to the verdict. Id. The evidence and inferences supporting the conviction are accepted as true and all contrary evidence and inferences are disregarded " unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them." State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). We must presume that any conflicting inferences were resolved in favor of the prosecution and must defer to that resolution. State v. Chaney, 967 S.W.2d 47, 53 (Mo. banc 1998).
Burrage argues that there was insufficient evidence to support the attempted delivery of marijuana because he was merely present during the crime. He also contends that there was no evidence either he or his cousin had a weapon with them, and therefore, the armed criminal action conviction cannot stand. Finally, Burrage contends that there was insufficient evidence to support the second degree felony murder conviction because he was not guilty of the underlying felony and because the victim's death was a result of his own attempt to steal the drugs, not a result of the drug deal. We disagree.
First, there was overwhelming evidence of Burrage's participation as an accomplice in the underlying felony of attempting to deliver the marijuana. A person is criminally responsible for the conduct of another when " either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense." Section 562.041.1(2). Here, Burrage's accomplice liability is based on his conduct in aiding his cousin in attempting to deliver a controlled substance. See Section 195.211.1 and Section 564.011.1. Burrage's claim that he was " merely present" at the scene of the crime is belied by the record. " While merely being present before or during the commission of a crime is not sufficient to find accomplice liability, any affirmative act, even mere encouragement, is enough. Encouragement is the equivalent of conduct that by any means countenances or approves the criminal action of another." State v. Hoosier, 267 S.W.3d 767, 771 (Mo. App. S.D. 2008) (internal citations and quotation marks omitted).
Here, Burrage was more than just aware of his cousin's criminal conduct, he was an active and affirmative participant in the attempt to sell the marijuana. He set up the deal, speaking to both interested parties on his cousin's behalf as to amount, price and location for delivery. He drove to retrieve the drugs, which were stored at his home. He drove to the delivery location. He stayed in the vehicle when the victim got in and asked him for the money. He drove himself and his cousin away from the scene after the shots were fired. See id. at 771-72 (defendant went along to drug transaction, witnessed entire transaction, did not try to stop it and showed no sign of surprise at what was happening); see also State v. Jones,296 S.W.3d 506, 510 (Mo. App. E.D. 2009) (defendant knew of robbery and drove accomplice away); State v. Meuir,138 S.W.3d ...