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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JAMES DUANE CUNNINGHAM, Defendant-Appellant.

UNPUBLISHED November 15, 2007

No. 270990 St. Clair Circuit Court LC No. 05-002852-FC

Before: Wilder, P.J., and Cavanagh and Hood, JJ. PER CURIAM. A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), kidnapping, MCL 750.349, and conspiracy to commit kidnapping, MCL 750.157a. The trial court sentenced defendant as a fourth-felony habitual offender, MCL 769.12, to life imprisonment for the murder and concurrent terms of 30 to 50 years' imprisonment for the kidnapping and conspiracy convictions. He appeals as of right. We vacate defendant's kidnapping conviction and sentence on double jeopardy grounds, but affirm his remaining convictions and sentences. Defendant's convictions arise from the kidnapping and beating death of Ryan Rich at the hands of defendant and five codefendants, Michael Hills, Robert Hills, Stewart Ginnetti, Nicholas Dobson, and Michael Bowman. Defendant first argues that there was insufficient evidence of malice to support his felony-murder conviction. We disagree. A sufficiency of the evidence claim is evaluated by reviewing the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could find every element of the crime proven beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268270; 380 NW2d 11 (1985). The resolution of credibility disputes is within the exclusive province of the trier of fact, which may also draw reasonable inferences from the evidence. People v Reddick, 187 Mich App 547, 551; 468 NW2d 278 (1991); People v Vaughn, 186 Mich App 376, 380; 465 NW2d 365 (1990). "The elements of first-degree felony murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [MCL 750.316(1)(b)]." People v Smith, 478 Mich 292, -1-


318-319; 733 NW2d 351 (2007) (citations and internal quotations omitted). Kidnapping is an enumerated felony. See MCL 750.316(1)(b). To be convicted of aiding and abetting felony murder, "[t]he requisite intent is that necessary to be convicted of the crime as a principal," that is, malice. People v Kelly, 423 Mich 261, 278; 378 NW2d 365 (1985). "[I]t therefore must be shown that the aider and abettor had the intent to kill, the intent to cause great bodily harm or wantonly and wilfully disregarded the likelihood of the natural tendency of his behavior to cause death or great bodily harm." Id.; see also People v Barrera, 451 Mich 261, 294; 547 NW2d 280 (1996). "[I]f the aider and abettor participates in a crime with knowledge of his principal's intent to kill or to cause great bodily harm, he is acting with `wanton and willful disregard' sufficient to support a finding of malice . . . ." Kelly, supra at 278-279 (citation omitted); see also People v McKenzie, 206 Mich App 425, 428-429; 522 NW2d 661 (1994). This case is similar to People v Robinson, 475 Mich 1, 11; 715 NW2d 44 (2006). In Robinson, the defendant drove with his codefendant to the victim's house, knowing that the codefendant was very angry at the victim, for the express purpose of allowing the codefendant to assault the victim. The defendant initiated the attack, causing the victim to fall to the ground, following which the codefendant beat and kicked him, and finally shot him. Id. at 11-12. The defendant left the scene before the codefendant killed the victim, after telling the codefendant, "That's enough." Id. The Supreme Court noted that, having helped create the situation, the defendant did nothing to protect the victim or diffuse the codefendant's anger, and instead left the victim alone with the enraged codefendant. Id. at 12. The evidence in this case shows that defendant knew in advance that Ginnetti was angry at the victim, and intended to tie him up and inflict a severe beating on him. There was evidence that Ginnetti told defendant that "we're going to kick this motherf--ker's ass . . . we're going to beat the f--king sh-t out of him" and that Ginnetti asked defendant to "grab him and f--king hold him, take him to the ground and we'll beat the sh-t out of him." After hearing this, on Ginnetti's signal, defendant was the first person to tackle the victim and also helped hold the victim down while Ginnetti tied him up. Defendant subsequently left, but did nothing to protect the victim or to diffuse the situation that he helped create. Viewed in a light most favorable to the prosecution, the evidence was sufficient to enable the jury to find beyond a reasonable doubt that defendant assisted in the crime, with knowledge that Ginnetti intended to inflict great bodily harm upon the victim, and therefore, acted with willful and wanton disregard of the natural and likely consequences of his actions, sufficient to support a finding of malice. We reject defendant's argument that he could not be convicted of felony murder because he abandoned the criminal enterprise before the beating began. "Abandonment is an affirmative defense, and the burden is on the defendant to establish by a preponderance of the evidence voluntary and complete abandonment of a criminal purpose." People v Akins, 259 Mich App 545, 555; 675 NW2d 863 (2003), quoting People v Cross, 187 Mich App 204, 206; 466 NW2d 368 (1991). "Abandonment by the defendant is `voluntary' when it is the result of repentance or a genuine change of heart." Cross, supra at 206, quoting Dressler, Understanding Criminal Law,

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