# In the Missouri Court of Appeals

Eastern District DIVISION THREE STATE OF MISSOURI, ) No. ED101278 ) Respondent, ) ) Appeal from the Circuit Court vs. ) of the City of St. Louis ) MARSHALL T. BURRAGE, ) Honorable Margaret M. Neill ) Appellant. ) Filed: June 30 , 2015 Marshall Burrage appeals from the judgment entered after a jury trial on his convictions for second degree felony murder, attempt ed deliver y of marijuana and armed criminal action. We affirm. Burrage and his cousin

— a known drug dealer from Kansas City

— were driving around St. Louis one day when Burrage got a call from a pe rson whose friend (hereafter “the victim”) was interested in purchasing marijuan a. Burrage was known to have a connection to people w h o sold marijuana, namely his cousin. Burrage asked his cousin the cost for three pounds of marijuana and the n conveyed that information to the person on the phone and told him to have the victim call Burrage

. When t he victim called, Burrage confirmed the price , and the victim agreed to buy three pound s of marijuana for $1950. Burrage expected to get “something” when
the deal was done. Burrage drove to his house

— w here his cousin was staying while in town

— to retrieve the marijuana stashed in his cousin’s suitcase s. They put the drugs in the vehicle, and Burrage called2

the buyers about where to meet. Burrage suggested a c ouple of places, but ultimately the buyers wanted to meet in their own neighborhood. Burrage drove to the designated meeting place, and , as they approached, his cousin slipp ed into the back passenger seat because he did not want any of the buyers sitting behind him.
As Burrage pulled up to the meeting spot, t he re were men waiting . When the vehicle
st opped, the victim walked around the back of the vehicle, got into the front passenger seat and kept the door propped open with his foot. Burrage and his cousin ask ed about the money , and then Burrage noticed one of the other men (hereafter “the victim’s accomplice”) approaching the vehicle . The victim’s accomplice attemp ted to get inside the back seat on the driver’s side . At this point, Burrage also notice d that the victim did not appear to have any money and figured out that they were going to be robbed. In fact, as it turned out, the victim and his accomplices never had any intention of paying for the drugs an d had always planned to rob Burra ge and his cousin. Burrage saw the vict i m’s accomplice reach for a bulge at his side and then saw the nose of a gun. Multiple s hots were fired . T he victim jumped out , and Burrage drove away. Burrage heard more shots being fired as they drove away , and the victim’s accomplice was seen on a surveillance video firing a .45 caliber gun as the vehicle drove away. All of the seven casings recovered from the scene were .45 caliber and had been fired from the same automatic weapon. But there was also a coppe r jacket found at the scene that could have been fired from an automatic weapon or a revolver. Unlike an automatic weapon, revolvers do not discharge their casings. Burrage knew his cousin usually carried a big revolver and told police that h e believed
h is cousin had his gun with him that day ; he also said he “probably” fired the gun during the incident. The victim was later found nearby, having died of a gunshot wound through his back. The nature of the wound was consistent with either being fired by a person seated behind the3

victim (which could have been Burrage’s cousin) or by a person off to the vict im’s left side (which could have been the victim’s accomplice).
T he jury found Burrage guilt y

— on a theory of accomplice liability

— of attempting to sell more than five grams of marijuana , armed criminal action and second degree felony murder

. On appeal, B urrage challenges the sufficiency of the evidence on all three counts. Our review is limited to determining whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v.
Bo wman , 337 S.W.3d 679, 688 (Mo. banc. 2011). The evidence is viewed in the light most favorable to the verdict. Id. The evidence and inferences supporting the conviction are accepted as true and all contrary evidence and inferences are disregarded “unles s they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them.”
State v. Grim , 854 S.W.2d 403, 411 (Mo. banc 1993). We must presume that any conflicting inferences were resolved in favor of the prosecution and must defer to that resolution. State v. Chaney , 967 S.W.2d 47, 53 (Mo. banc 1998). Burrage argues that there was insufficient evidence to support the attempted delivery of marijuana because he was merely present during the crime. He also contends that there was no evidence either he or his cousin had a weapon with them, and therefore, the armed criminal action conviction cannot stand. Finally, Burrage contends that there was insuff icient evidence to support the second degree felony murder conviction because he was not guilty of the underlying felony and because the victim’s death wa s a result of his own attempt to steal the drugs, not a result of the drug deal

. We disagree. First, there was overwhelming evidence of Burrage’s participation as an accomplice in the underlying felony of attempting to deliver the marijuana

. A person is criminally responsible4

for the conduct of another when “e ither before or during the commission of an o ffense 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. ” S ection
562.041 .1(2). Here, Burrage’s accomplice liability is based on his conduct in aiding his cousin in attempting to deliver a controlled substance

. See S ection 195.211.1 and S ection 564.011.1

. Burrage ’s claim that he was “ merely pr esent ” at the scene of the crime is b elie d by the record

.

“ While merely being present before or during the commission of a crime is not sufficient to find accomplice liability, any affirmative act, even mere encouragement, is enough. Encouragement is the equivalent of conduct that by any means countenances or approves the criminal action of another. ” State v. Hoosier , 267 S.W.3d 767, 771 (Mo. App. S.D. 2008) (internal citations and quotation marks omitted)

. H ere, Burrage was more than just aware of his cousin’s criminal conduct, he was an active and affirmative participant in the attempt to sell th e marijuana . H e set up the deal, speaking to both interested parties on his cousin’s behalf as to amount, price and location for delivery . H e drove to retrieve the drugs, which w ere stored at his home. H e drove to the delivery locatio n . H e stayed in the vehicle when the victim got in and asked him for the money

. H e drove himself and his cousin away from the scene after the shots were fired. See id

. at 771

- 72 (defendant went along to drug transaction, witnessed entire transaction , did not try to stop it and showed no sign of surprise at what was happening ) ; see also State v. Jones , 296 S.W.3d 506, 510 (Mo. App. E.D. 2009) (defendant knew of robbery and drove accomplice away); State v. Meuir , 138 S.W.3d 137, 143

- 44 (Mo. App. S.D. 200 4) (defendant helped plan robbery and acted

as driver and lookout)

. This is sufficient evidence from which the jury could find Burrage guilty of attempt to deliver a controlled substance.5

Second, Burrage’s claim that there was no evidence that he or his c ousin had a weapon with them is also belied by the record

. Burrage’s own statements to police support the
conclusion that his cousin had the gun he usually carried with him th e day of this drug deal and that h is cousin fired it during the attempted commission of the crime

. Moreover, the physical

e vidence supports the inference that another gun besides the .45 caliber automatic weapon fired by the victim’s accomplice could have been fired from directly behind the victim , suggest ing that Burrage’s cousin had and used his weapon. Therefore, there was sufficient evidence to support the armed criminal action conviction on an accomplice theory. See S ection 571.015.1. Finally , there was sufficient evidence from which a reasonable juror could conclude that the victim’s death was a result of the attempted delivery of drugs. A person commits second degree felony murder if he “[c] ommits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such fe lony or in the flight from the perpetration or attempted perpetration of such felony, another person is killed as a result of the perpetration or attempted perpetration of such felony or immediate flight from the perpetration of such felony or attempted
pe rpetration of such felony. ” Section 5 65.021 .1(2). We use a “ foreseeability

- proximate cause

con cept of homicide responsibility” in felony murder cases

. State v. Manuel , 443 S.W.3d 669,
676 (Mo. App. W.D. 2014) (citing State v. Baker, 607 S.W.2d 153, 156 (Mo. banc 1980) and State v. Moore, 580 S.W.2d 747, 752 (Mo. banc 1979) )

. T he identit y of the actual killer is irrelevant , and a defendant may be responsible for any deaths that are the natural and proximate result of the crime unless there is an independent intervening cause

. Moore , 580 S.W.2d at 7 52. Thus, i n Moore , a bystander firing a weapon to thwart a robbery

— which ended up killing

a nother innocent bystander

— was deemed not to be an independent intervening cause of that death. Id

. at 752

- 53. Rather, it wa s foreseeable that a robbery attempt would meet with or6

provoke resistance, and thus the robbery attempt “set into motion the chain of events” that
caused that death. Id

. Thus, those involved in the robbery were also guilty of felony murder. Likewise, in general “i t is foreseeable a death could result [from] an illegal drug deal. ” State v. Blunt , 863 S.W.2d 370 , 372 (Mo. App. E.D. 1993)

. In Blunt , a d rug - buyer was shot by the defendant’s accomplice drug

- dealer after she resisted paying for the drugs

. Id . T his Court held that the death was a foreseeable result of the drug deal , without addressing whether there was any evidence that the defendant had been aware of the pr esence of weapons or expected that the buyer might try not to pay. Id

. Death is a foreseeable part of an illegal drug transaction because guns are commonly carried and used by participants in drug deals

. One reason a person might bring a weapon to a drug deal is to protect their drugs or their money from being stolen. Thus, robberies are themselves a foreseeable part of an illegal drug deal as well. Burrage acknowledged these general real ities when he claimed that he did not carry a gun becaus e he did not feel threatened

— even with a valuable amount of drugs in his possession

— but admitted that sometimes thin gs g o wrong in a drug deal.
I n addition to the general foreseeability of violen t robberies as part of any drug deal , there
was spec ific ev idence of foreseeability in this case . Burrage’s cousin brought a weapon to the drug deal and took measures to make sure no one was behind him by getting into the back seat. Burrage himself was able to quickly identify that this deal was going wrong when the victim appeared to have no money and his accomplice approached the car. This suggests that the robbery was foreseeable to both Burrage and his cousin

. Because the robbery itself was also a foreseeable part of the drug deal, Burrage ’s claim
that this was a “robbery gone bad” and not a “drug deal gone bad” has no merit. T he foreseeab ility of this attempted robbery does not depend on w hether or not the buyers ever7

intend ed to purchase the drugs

. In Manuel , the victim initiated the drug buy and, then upon suspicion that the drugs were fake , drove away and was shot and killed. 443 S.W.3d at 677. The court pointed out that w hether the victim was “ attempting to steal drugs ” or “ simply became

nervous ” that the drugs were fake is “ immaterial. ” Id

. Rather, t he attempt to sell the drugs and the victim’s death “ were parts of one continuous transaction, and were closely connected in time, place and causal relation.” Id

. Likewise, in this case, the attempt to sell the drugs and the victim’s death were part of one transaction, and it is immaterial that the buyer was attempting to si multaneously steal the drugs

. Moreover, t he robbery could not have been attempted unless and until Burrage and his cousin arrived and attempted to sell the drugs

. Thus, it cannot be said that the robbery was independent of the dru g deal, such that it relieves Burrage of criminal responsibility for this death. In sum, there was sufficient evidence from which a juror could have concluded that the victim in this case died as a natural and proximate result of the attempt to deliver drugs, a crime for which there was ample evidence of Burrage’s participation therein. The attempted robbery during the attempt to del iver the drugs was not an independent intervening cause of the victim’s
death. All points are denied, and the judgment is affirmed.

ROBERT G. DOWD, JR., Judge

Kurt S. Odenwald, P.J. and Gary M. Gaertner, Jr., J., concur.