Court of Appeals of Missouri, Eastern District, Fifth Division
from the Circuit Court of the City of St. Louis Case No.
1422-CR03035-01 Honorable Jimmie M. Edwards
M. Dowd Chief Judge
Cunningham appeals the judgment of conviction entered
following a jury trial in the Circuit Court of the City of
St. Louis finding him guilty of one count of second-degree
felony murder and one count of armed criminal action. On
appeal, Cunningham contends that there was insufficient
evidence to support the judgment of conviction on either
count. We affirm.
and Procedural Background
basic facts of this case are undisputed. In the early morning
of August 4, 2014, St. Louis City Police Officer Steven Saito
discovered Germone Cunningham walking near the intersection
of Angelica and Blair Streets in the City of St. Louis.
Officer Saito testified that when he turned his vehicle
toward Cunningham he noticed Cunningham pull a gun out of his
waistband and throw it into a nearby trash can. Officer Saito
searched the trash can and retrieved the gun. The gun was
later examined and traces of blood matching that of the
victim, Corwin Bates, were found. When Officer Saito
approached Cunningham, he observed that Cunningham was
carrying a baseball cap that had bloodstains and a bullet
hole and a side-view mirror that had been broken off of a
motor vehicle. Officer Saito also observed bloodstains on
Cunningham's shirt, pants, and boots that were later
determined to be consistent with Bates's blood.
Saito took Cunningham into custody and Cunningham was
interviewed by police detectives. During the interview,
Cunningham stated that Bates had approached Cunningham with a
scheme in which he and Bates would lure individuals seeking
to buy drugs and then Bates and Cunningham would rob them.
Cunningham claimed that his role was to serve as the lookout
during the planned robbery. Cunningham stated that at the
time of the planned robbery to which Bates brought a gun,
Bates announced the robbery, an exchange of gunfire occurred
with the purported robbery victims, and Bates was shot in the
back of the head and died.
time of the shooting, Cunningham was staying with Fred Allen,
who occasionally permitted Cunningham to use his vehicle.
Bates's mother testified that Bates and Cunningham left
her house in Allen's vehicle on the night of the robbery.
Allen's vehicle was later searched by police. The
passenger side-view mirror had been broken off. Inside the
vehicle, police found Bates's blood splattered on the
center console and passenger-seat headrest. Police also
recovered a bullet and a bullet cartridge from the vehicle. A
firearms examiner ruled the cartridge matched the gun seized
by Officer Saito from the trash can on the morning of
reviewing sufficiency-of-evidence claims, this Court decides
whether any rational fact finder could have found
guilt beyond a reasonable doubt. State v. Nash, 339
S.W.3d 500, 509 (Mo.banc 2011). This is not an assessment of
whether we believe that the evidence at trial established
guilt beyond a reasonable doubt but rather a question of
whether any rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt.
Id. This Court accepts as true all evidence and
inferences in the light most favorable to the State, and
disregards all contrary evidence and inferences. Id.
In reviewing the sufficiency of the evidence, we will neither
act as a "super juror" with veto powers nor will we
reweigh the evidence. Id. Instead, we give great
deference to the fact finder, who may believe all, some, or
none of the testimony of a witness when considered against
the background of all the other facts, circumstances, and
other evidence in the case. Id.
There was sufficient evidence to convict Cunningham of
second-degree felony murder.
trial, Cunningham was found guilty of second-degree felony
murder and armed criminal action both of which were
predicated on his commission of attempted robbery in the
first degree. On appeal, Cunningham argues the evidence was
insufficient to establish beyond a reasonable doubt that he
committed attempted first-degree robbery which rendered
fatally defective his convictions of second-degree felony
murder and armed criminal action. We disagree.
person commits second-degree felony murder if, in the
perpetration or in the attempted perpetration of a felony, a
homicide takes place. § 565.021. A person commits armed
criminal action if he commits a felony "by, with, or
through the use, assistance, or aid of a dangerous instrument
or deadly weapon." §571.015.
jury found Cunningham committed attempted robbery in the
first degree based on the theory of accomplice liability
because he acted in concert with Bates during a planned
robbery. Under the theory of accomplice liability, a person
is criminally responsible for the conduct of another if
"[e]ither 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." § 562.041. To convict Cunningham of
attempted robbery in the first degree under accomplice
liability, the State had to prove (1) Bates committed
first-degree attempted ...