Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Fabre

Court of Appeals of Louisiana, First Circuit

December 21, 2017

STATE OF LOUISIANA
v.
SHAWNATHON LAMON FABRE

         On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 548281 Honorable August J. Hand, Judge Presiding

          Warren L. Montgomery District Attorney Mary Watson Smith Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana

          Bertha M. Hillman Louisiana Appellate Project Covington, Louisiana Counsel for Defendant/ Appellant Shawnation Lamon Fabre

          BEFORE MCCLENDON, WELCH, AND THERIOT JUDGE.

          MCCLENDON, JUDGE.

         The defendant, Shawnathon L. Fabre, was charged by amended bill of information with domestic abuse aggravated assault on count one, a violation of LSA-R.S. 14:37.7, possession of marijuana, second offense, on count two, a violation of LSA-R.S. 40:966(C)(2)(a), possession of a firearm by a convicted felon, on count three, a violation of LSA-R.S. 14:95.1, and aggravated assault with a firearm on count four, a violation of LSA-R.S. 14:37a[1] He entered a plea of not guilty on all counts. Count one was severed, and the matter proceeded to trial on counts two, three, and four.[2] After a trial by jury, the defendant was found guilty as charged on counts two and three, and guilty of the responsive offense[3] of attempted aggravated assault with a firearm on count four, in violation of LSA-R.S. 14:37.4 and 14:27. He was sentenced to five years imprisonment at hard labor on counts two and four, and to fifteen years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count three, to be served concurrently.

         The State filed a habitual offender bill of information seeking to enhance the sentence on count four.[4] The defendant withdrew his former not guilty plea on count one, pled guilty as charged, and was sentenced to five years imprisonment at hard labor. He stipulated to his status as a second-felony habitual offender, the original sentence on count four was vacated, and the defendant was resentenced on count four to an agreed upon sentence of ten years imprisonment at hard labor, to be served consecutive to the sentences imposed on counts one, two, and three.[5] He now appeals, assigning error to the sufficiency of the evidence on counts three and four. For the following reasons, we affirm the convictions and sentences on counts two and four. We also affirm the conviction on count three, but amend the sentence on count three and affirm as amended.

         STATEMENT OF FACTS

         On April 16, 2014, at 9:28 a.m., officers of the Covington Police Department (CPD) were dispatched to 303 West 29th Avenue, based on the complaint that the defendant brandished a gun. In addition to providing the defendant's name, the caller further described the defendant as wearing a gray sweater and blue jeans at the time. That morning Kandi Laurent asked her mother, Kathy Montana, to accompany her as she dropped off clothing that belonged to the defendant, her boyfriend, with whom she had an argument the night before.[6] They left baskets of clothing in the defendant's mother's yard and then drove to Carla Montana's house, Kandi's sister, who lived a block away from the defendant's mother's residence. While they were in Kandi's vehicle in Carla's driveway, the defendant drove up behind them and began "fussing" at Kandi and "calling her names." Kathy stepped out of the vehicle to confront the defendant as he exited his vehicle and approached Kandi's vehicle. At that point, Kathy saw a gun in the defendant's hand.[7] The defendant brandished the gun, raising it upward, and Kathy told Kandi to call the police. The defendant then drove off toward his mother's residence. CPD officers began arriving at the scene minutes later.

         Lieutenant Steven Culotta approached the scene and began speaking to Kathy and Kandi. They pointed out the defendant, who was down the street at 203 West 29th Avenue, and informed the officer that the defendant was armed with a gun. Lieutenant Culotta immediately pursued the defendant, a black male wearing a gray sweater and jeans, fitting the description provided in the dispatch. The defendant was observed on foot walking between two houses located at 203 and 209 West 29th Avenue. Lieutenant Culotta apprehended the defendant, escorted him to the nearest police car, and conducted a pat-down search. Detective James Blackwell motioned to Lieutenant Culotta to check the defendant's bulging right front pocket, where a plastic bag tied in a knot containing suspected marijuana was discovered. At that point, the defendant was handcuffed and advised that he was being placed under arrest. Other officers secured and remained posted at the scene. Subsequently, Officer Joel Crawford discovered a gun in an outdoor fire pit located between the two houses, where Lieutenant Culotta observed the defendant on foot before he was escorted to the police unit.[8]

         SUFFICIENCY OF THE EVIDENCE

         In his sole assignment of error, the defendant argues that the evidence is insufficient to support the convictions of possession of a firearm by a convicted felon and attempted aggravated assault with a firearm. The defendant is not contesting the other convictions. The defendant specifically contends that the State failed to prove that he possessed a gun. He notes that a gun was not found in his possession, and contends that there was no fingerprint evidence or scientific certainty that the DNA sample from the gun found in the fire pit near the scene included the defendant as a donor. The defendant further notes that Kathy testified that she did not believe that the defendant had a gun and admitted that she was in shock at the time of her police statement. Thus, the defendant concludes that the eyewitnesses did not establish that he possessed a gun. Finally, the defendant argues that the evidence did not exclude a reasonable hypothesis of innocence that the gun in the fire pit was thrown there by someone else. In further support of this position, defendant notes that three of his male relatives-two brothers and a cousin-live in the house near the area where the gun was found. The defendant also notes that all male relatives along his paternal lineage cannot be excluded as DNA donors of the sample from the firearm.

         A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; LSA-Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged and defendant's identity as the perpetrator of that crime beyond a reasonable doubt. State v. Jones, 596 So.2d 1360, 1369 (La.App. 1 dr.), writ denied, 598 So.2d 373 (La. 1992); see also LSA-C.Cr.P. art. 821(B); State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987).

         Louisiana Revised Statutes 14:95.1(A) makes it unlawful for any person who has been convicted of certain felonies to possess a firearm. To prove a violation of LSA-R.S. 14:95.1, the State must prove: (1) the defendant's status as a convicted felon; and (2) that the defendant was in possession of a firearm. State v. Loper, 10-0582 (La.App. 1 Cir. 10/29/10), 48 So.3d 1263, 1266. The State must also prove that ten years have not elapsed since the date of completion of the punishment for the prior felony conviction. See LSA-R.S. 14:95.1(C). Thus, a violation of LSA-R.S. 14:95.1 by the defendant required no more than establishing that he had a prior felony conviction and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.