State v. Lake Cunningham

530 S.W.3d 567
CourtMissouri Court of Appeals
DecidedSeptember 27, 2017
DocketNo. SD 34470
StatusPublished
Cited by1 cases

This text of 530 S.W.3d 567 (State v. Lake Cunningham) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lake Cunningham, 530 S.W.3d 567 (Mo. Ct. App. 2017).

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. Swearin-gen 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 Swearin-gen’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, “[Wjhat’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 Swearin-gen 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 Swear-ingen 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 Swearin-gen and S.A. At that point, Swearingen drove off with S.A. in his car, and S.A. called 911. The two went to Swearingen’s house, and then to the sheriffs office.

After Cunningham shot Victim, large amounts of blood flowed from Victim’s hand and wrist. Victim applied pressure by placing her hand on her abdomen in an effort to staunch the bleeding. Victim pretended to be dead. Cunningham approached, waved the gun over Victim, and said, “Are you dead yet, I should shoot you again.”

Cunningham walked away for a few moments, and Victim was able to call 911 on her cell phone. After giving basic information to the 911 operator, Victim saw Cunningham approach again. She said, “You know you don’t want to do this you know, you’re going to go to prison for the. rest of your life, and I’m hurt really, really bad. And we need an ambulance.” Cunningham grabbed the phone out of Victim’s hand and told the 911 operator, “We need an ambulance, I just shot my mom, and she is hurt really, really bad.” Thereafter, police and paramedics arrived at the scene.

Cunningham was charged, by Amended Felony Information, with domestic assault in the first degree (section 565.072), and unlawful use of a weapon (section 571.030.1(4)).4

Following a bench trial on March 21, 2016, the trial court found Cunningham guilty of both charges. On May 31, 2016, the trial court sentenced Cunningham to four years in the Department of Corrections on the unlawful use of a weapon conviction; sentenced Cunningham to 10 years in the Department of Corrections on the domestic assault conviction, suspended execution of that sentence and placed him on.5 years’ probation; and ordered the domestic assault sentence, if ever executed, to run consecutively to.the unlawful use of a weapon sentence. This appeal followed.

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Bluebook (online)
530 S.W.3d 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lake-cunningham-moctapp-2017.