APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 21580-11. HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE.
John F. DeRosier, District Attorney, Fourteenth Judicial District Court, Carla S. Sigler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, COUNSEL FOR APPELLEE: State of Louisiana.
Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, COUNSEL FOR DEFENDANT/APPELLANT: David Caleb Fontenot.
David Caleb Fontenot, Pro se, Angola, LA.
Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
[14-835 La.App. 3 Cir. 1]
Shannon J. Gremillion, Judge.
On April 13, 2011, Defendant, David Caleb Fontenot, fired a handgun at Stephin Bergeron and Bergeron's mother's fiancé e, Chance Bourgeois, from the cab of a truck. Twenty-year-old Bergeron was shot three times and died as a result of his wounds.
Defendant was charged with second degree murder, a violation of La.R.S. 14:30.1, and attempted second degree murder, violations of La.R.S. 14:27 and 14:30.1. A jury trial commenced, following which Defendant was found guilty as charged. Defendant was sentenced to life imprisonment without the possibility of parole, probation, or suspension of sentence on the conviction for second degree murder and fifty years without the possibility of parole, probation, or suspension of sentence on the conviction for attempted second degree murder, to be served concurrently with the life sentence.
Defendant has perfected a timely appeal, alleging one attorney-filed assignment of error and three pro se assignments of error. We affirm Defendant's convictions and sentences.
SUFFICIENCY OF THE EVIDENCE
Defendant argues tat the evidence was insufficient to sustain the verdicts of second degree murder and attempted second degree murder. In the alternative, Defendant argues that the jury should have found him guilty of manslaughter and attempted manslaughter.
This court has stated that sufficiency of the evidence questions are considered using the following standard of review:
[A] reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense [14-835 La.App. 3 Cir. 2] were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.
State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ denied, 03-2913 (La. 2/13/04), 867 So.2d 686. Furthermore, in State v. Williams, 13-497, pp. 4-5 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, 1240, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024, this court noted:
" Evidence may be either direct or circumstantial." State v. Jacobs, 07-887, p. 12 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 551,
writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, __ U.S. __, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). We note that, whether the conviction is based on direct evidence or solely on circumstantial evidence, the review is the same under the Jackson v. Virginia standard. State v. Williams, 33,881 (La.App. 2 Cir. 9/27/00), 768 So.2d 728 (citing State v. Sutton, 436 So.2d 471 (La. 1983)), writ denied, 00-99 (La.10/5/01), 798 So.2d 963. Circumstantial evidence is that where the main fact can be inferred, using reason and common experience, from proof of collateral facts and circumstances. Id. Where the conviction is based on circumstantial evidence, in order to convict, " assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La.R.S. 15:438.
In State v. Chism, 436 So.2d 464, 469 (La. 1983) (citations omitted), the supreme court discussed the use of circumstantial evidence, stating:
Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion.
[14-835 La.App. 3 Cir. 3] Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.
Second degree murder is the killing of a human being " [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]" La.R.S. 14:30.1(A)(1). Attempt is defined as:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under ...