Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF POLK COUNTY Honorable Michael O.
Hendrickson, Presiding Judge
WILLIAM W. FRANCIS, JR., J.
Cunningham ("Cunningham") appeals the judgment of
the trial court following his conviction for the class A
felony of domestic assault in the first degree,
pursuant to section 565.072. 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.
and Procedural Background
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
Victim,  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.
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.
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.
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.
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."
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."
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.
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.
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 ...