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State v. Breedlove

Court of Appeals of Louisiana, Second Circuit

January 11, 2017

STATE OF LOUISIANA Appellee
v.
JOHN MATTHEW BREEDLOVE Appellant

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 304, 871 Honorable Ramona L. Emanuel, Judge

          BARHAM WARNER STROUD CARMOUCHE, L.L.C. By: Paul J. Carmouche Nichole M. Buckle Counsel for Appellant.

          JAMES E. STEWART, SR. District Attorney Counsel for Appellee.

          TOMMY JAN JOHNSON WILLIAM JACOB EDWARDS WILLIAM C. GASKINS Assistant District Attorneys.

          Before DREW, LOLLEY and STONE, JJ.

          DREW, J.

         Matthew Breedlove was arrested in Barnes & Noble Booksellers on two counts of video voyeurism, contrary to La. R.S. 14:283 A(1). A jury found him guilty by vote of 11-1 on each count. He was sentenced to three years at hard labor, without benefits, and a fine of $1, 000 on Count 1, concurrently with two years at hard labor on Count 2. He now appeals, urging insufficient evidence to convict, improper denial of his motion to suppress evidence of prior bad acts, and excessive sentence. For the reasons expressed, we affirm in part, reverse and vacate in part, and remand for resentencing.

         I. FACTS

         1. Robert Bolden testified: .

• in the spring of 2012, he was working as a loss prevention officer at Old Navy in Shreveport, next door to Barnes & Noble ("B&N");
• a few weeks before the B&N incident, he saw a man loitering in the boys' section of the store;
• the man had a briefcase, possibly with a lens inside;
• the man approached some young women in school uniforms;
• the man repeatedly waved his briefcase under their skirts;
• as he (Bolden) approached the females, the man left the store;
• he guessed that the girls at Old Navy were between 13 and 16;
• he was unable to confirm the exact nature of the "lens" he saw;
• he then notified management and filed a report;
• his much later review of the Old Navy surveillance video produced nothing of probative value for trial;
• he did not tell the prosecutors about his Old Navy report until just before the instant trial;
• on March 19, 2012, he still worked at Old Navy;
• while on break, he entered B&N and saw the same man, later identified as the defendant, loitering near some other school-aged girls;
• the defendant was bent down between T.Y. and K.W. as if to look at books on a lower shelf, but with his phone hand at a level lower than the length of the girls' skirts;
• after walking away, the defendant returned a few minutes later, at which point he paced back and forth between T.Y. and K.W. while holding his phone "almost behind him and to the side";
• after alerting the store manager, he called the police;
• while waiting for the police, the subject approached a woman in running shorts, pointing his cell phone in her direction;
• whether the cell phone was recording he didn't know;
• at trial, he identified John Matthew Breedlove as the man he observed at Old Navy; and
• he didn't tell the police about the previous Old Navy incident until right before the instant trial.

         2. Officer Matthew Holloway testified:

• on March 19, 2012, he was working for the Shreveport Police Department Officer, when he responded to the call in question;
• at the scene, he first spoke with Bolden, who described what he had seen, pointing out the two girls in question;
• he and Bolden then saw the defendant squat on the opposite side of an aisle of books where a young woman in running shorts was seated, reading a book;
• the defendant was pointing a cell phone at the woman;
• he arrested the defendant, seizing the cell phone which the defendant was trying to conceal in his pocket;
• he seized the phone, turned off the power, and placed the defendant in his squad car;
• upon reentering B&N, he could not find the unnamed woman in the running shorts.
• the defendant had his cell phone in his right hand, with the screen facing his palm;
• he approached and custodially detained the man;
• the defendant's phone was an iPhone 3, with no reverse camera;
• he questioned the girls (T.Y. was 16, and K.W. was 17, on that date); and
• they remembered seeing the defendant, but he never made contact with them, and they never saw him using his phone.

         3. Det. Jeff Allday testified that:

• he executed a search warrant for the defendant's phone, which revealed no photographs or videos of K.W. or T.Y., though it did yield information central to this investigation;
• he ran a Cellbrite program to extract data from the phone, flagging material that he thought was pertinent to these criminal charges;
• he then described four videos and one photograph, which were admitted into evidence and displayed to the jury;[1]
• he explained that the program could not recover anything that had been deleted; and
• from the images captured on the date of this incident, he found no photos or videos of any particular person.

         In addition, each victim identified Breedlove as the man who inappropriately lingered behind them at the bookstore. K.W. further described him as standing behind them for 15-30 seconds, [2] and then "scurrying away" when she turned to look at him.

         II. ISSUES ON APPEAL

         The defendant argues:

• the evidence is insufficient to prove a violation of La. R.S. 14:283, in regard to T.Y. (Count One) and K.W (Count Two);
• the "other crimes" evidence was improperly admitted; and
• the sentence imposed is excessive.

         III. ANALYSIS OF ISSUES ON APPEAL

         A. Sufficiency

         (1) Our legal analysis of general insufficiency claims is well settled.[3]

         (2) Analysis of La. R.S. ...


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