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
L. Montgomery District Attorney Mary Watson Smith Assistant
District Attorney Covington, Louisiana Counsel for Appellee
State of Louisiana
M. Hillman Louisiana Appellate Project Covington, Louisiana
Counsel for Defendant/ Appellant Shawnation Lamon Fabre
MCCLENDON, WELCH, AND THERIOT JUDGE.
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 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. After a trial by jury, the defendant was
found guilty as charged on counts two and three, and guilty
of the responsive offense 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
State filed a habitual offender bill of information seeking
to enhance the sentence on count four. 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. 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.
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. 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. 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.
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
OF THE EVIDENCE
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.
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).
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 ...