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State v. Cunningham

Court of Appeals of Missouri, Eastern District, Fifth Division

April 17, 2018

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

          Appeal from the Circuit Court of the City of St. Louis Case No. 1422-CR03035-01 Honorable Jimmie M. Edwards

          OPINION

          James M. Dowd Chief Judge

         Germone 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.

         Factual and Procedural Background

         The 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.

         Officer 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.

         At the 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 Cunningham's arrest.

         Standard of Review

         When 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.

         Discussion

         1. There was sufficient evidence to convict Cunningham of second-degree felony murder.

         At 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.

         A person commits second-degree felony murder if, in the perpetration or in the attempted perpetration of a felony, a homicide takes place. § 565.021[1]. 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.

         The 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 ...


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