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State v. Cunningham

Court of Appeals of Missouri, Southern District, Second Division

September 27, 2017

STATE OF MISSOURI, Respondent,
v.
LAKE CUNNINGHAM, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF POLK COUNTY Honorable Michael O. Hendrickson, Presiding Judge

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         Lake Cunningham ("Cunningham") appeals the judgment of the trial court following his conviction for the class A felony of domestic assault in the first degree, [1] pursuant to section 565.072.[2] Following a bench trial, the trial court found Cunningham guilty. In one point on appeal, Cunningham challenges the sufficiency of the evidence to support his conviction for domestic assault in the first degree. Finding no merit to Cunningham's point, we affirm the judgment of the trial court.

         Factual and Procedural Background

         Cunningham challenges the sufficiency of the evidence to support his conviction for domestic assault in the first degree. "Our standard of review in a bench-tried case is the same as in a jury-tried case." State v. Harrell, 367 S.W.3d 122, 126 (Mo.App. S.D. 2012). "This Court must consider the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the [judgment], while disregarding all inferences to the contrary." Id. The following summary of the relevant facts is presented in accord with these principles.

         Cunningham, Victim, [3] Victim's daughter ("S.A."), and Cunningham's father all resided together in the same residence. Victim filed for divorce from Cunningham's father, and his father was served with the summons and petition on February 9, 2015.

         Michael Swearingen ("Swearingen"), worked with Victim at a nursing home for approximately a year and a half. Swearingen had been trying to sell a 1998 Pontiac Firebird, and Victim expressed interest in purchasing the vehicle for S.A. Swearingen and Victim agreed that Swearingen would come to the family residence on the evening of February 10, 2015, to allow Victim and S.A. to inspect the vehicle. Swearingen arrived at around 8:30 p.m.

         When Victim and S.A. came out of the family residence, Victim observed Cunningham watching them from an upstairs window. Victim explained to Swearingen that the person in the window was her stepson. Victim and S.A. got into Swearingen's car, and the three drove to a local convenience store. Victim went into the store, purchased a few items including candy and three "little airplane bottles" of cinnamon whiskey, and returned to the car.

         The three then returned to the family residence. Swearingen parked his car in the driveway. Victim, observing that her husband had not returned home yet, communicated that she wanted to take the opportunity to show Swearingen her camper, which she was interested in selling, and her newly rebuilt house. Victim, S.A., and Swearingen walked toward the camper, which was located approximately 15 to 20 feet in front of the house in the driveway.

         At this time, Cunningham, observing that the three had returned, retrieved his father's loaded gun, a Ruger .357 Magnum, to "scare [Swearingen] off." Cunningham appeared outside the family residence with the gun in his hand. Victim, uneasy with Cunningham's stationary presence outside of the house, asked him, "[W]hat's going on?" Cunningham began yelling obscenities, demanding of Swearingen "who the [f***] he was and what the [f***] he was doing there."

         Cunningham said that Swearingen was not welcome, that the house was his "dad's territory[, ]" and that he was "protecting" it. He directed Swearingen to "[g]et the F-out." Swearingen did not reply. Victim attempted to intervene and told Cunningham to stop. Cunningham, now within a few steps of Victim, S.A., and Swearingen, raised the gun and pointed it at Swearingen and S.A. Cunningham indicated that he "would like to kill all of you[.]" Victim "swerved in front of" S.A. when Cunningham pointed the gun at S.A., which redirected Cunningham's attention, causing him to again point the gun at Victim. Cunningham continued to demand that Swearingen depart, using coarse and profane language, while Victim yelled back at Cunningham. While Cunningham pointed the gun at Victim, Victim asked, "Do you really want to shoot me . . . ?" Cunningham replied, "I would love to [f-ing] kill you."

         Swearingen turned around and walked back to his car, along with S.A. Victim, hoping to stall Cunningham long enough for Swearingen and S.A. to make it to Swearingen's car, grabbed the gun Cunningham was pointing at her.

         Swearingen got into the driver's seat and started the car while S.A. stood by the front driver's side of the vehicle. Victim heard the car start, and satisfied that S.A. and Swearingen would be able to get away and call 911, let go of the gun. Cunningham said he wanted to kill Victim, and then hit Victim in the eye with the butt of the pistol, with such force it broke Victim's glasses. Victim stood there dazed for a moment, and Cunningham shoved her to the ground. Victim was laying prone with one elbow on the ground, while Cunningham stood at her feet with the gun pointed at her head. Victim extended her left hand in front of her head where she discerned the gun was pointed. Cunningham pulled the trigger three times; the gun failed to fire on the first two trigger pulls, but discharged on the third, sending a bullet through Victim's left hand and wrist.

         Hearing the gunshot, S.A. entered Swearingen's car. Cunningham approached the vehicle, pointing the gun at Swearingen and S.A. At that point, Swearingen drove off with S.A. in his car, and S.A. called 911. The two ...


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