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State v. Melton

Court of Criminal Appeals of Tennessee, Knoxville

February 16, 2018


          Assigned on Briefs October 10, 2017

         Appeal from the Criminal Court for Knox County No. 106607 Bob R. McGee, Judge

         The defendant, Howard Melton, appeals his Knox County Criminal Court jury conviction of sexual exploitation of a minor, claiming that the trial court erred by improperly admitting certain evidence and that the evidence was insufficient to support his conviction. Discerning no error, we affirm.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

          J. Liddell Kirk (on appeal) and Keith Lee Lieberman (at trial), Knoxville, Tennessee, for the appellant, Howard Melton.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Charme P. Allen, District Attorney General; and Rachel Russell and Joanie Stewart, Assistant District Attorneys General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and Robert L. Holloway, Jr., JJ., joined.



         In October 2015, the Knox County Grand Jury charged the defendant with two counts of especially aggravated sexual exploitation of a minor and one count of sexual exploitation of a minor. Prior to trial, the State dismissed both counts of especially aggravated sexual exploitation, and the trial court conducted a jury trial in April 2016 on the single count of sexual exploitation of a minor.

         The State's proof at trial showed that the defendant was the stepgrandfather of victim M.S.[1] and the grandfather of victim S.M. Both victims would often spend the night at the defendant's home. On one such occasion when the victims were 10 or 11 years old, the defendant played a "Girls Gone Wild" video for them. S.M. described what she recalled of the video as follows:

There w[ere] parts where the guys would go up to the girls and ask them if they want to be in the Girls Gone Wild movie, and they said all they had to do was basically flash them, like, pull your shirt up and flash them and there would be stars covering their nipples.
And then there was one where they were on stage and they were in, like, really, really tiny bikinis and they were wrestling . . . .

         After watching the video with the victims, the defendant informed them that "that's how girls [their] age acted" and suggested that they "should go record [their] own" video. The defendant provided the victims with a video camera and instructed them on how to operate it, including how to hit the "record" button, but told them that the camera contained no video cassette or means to record any footage. The defendant's wife, Patty Melton, was asleep at the time.

         While the defendant remained in the living room, the victims entered the bedroom that they shared at the defendant's house and removed all of their clothing. The victims took turns operating the video camera while the other person "danced in front of the camera, " jumped on the bed, and "grabb[ed her own] boobs." S.M. testified that she and M.S. used Barbie dolls to "rol[e] play, " and the victims even used a lamp as a "stripper" pole. M.S. testified that she knew what they were doing was "weird" but that at the time she could not grasp her future embarrassment. M.S. denied that she would have made the video if the defendant had not requested it. M.S. believed the defendant when he told her that the video camera contained no means of recording because she "just trusted him."

         Because the victims were "being loud" while filming the video, they awoke Mrs. Melton, who entered their bedroom and told them to be quiet and go to bed. M.S. estimated that she and S.M. had been filming themselves for approximately 15 minutes. The victims immediately went to bed. Later, S.M. saw the defendant enter the bedroom and retrieve the video camera, but he said nothing to the victims.

         In April 2014, 17-year-old S.M. spent the night at the defendant's house. The following morning as she was preparing to leave, the defendant told S.M. to "look what [he] found." When S.M. turned toward the television, she saw that the defendant was playing a digital video disc ("DVD") which showed S.M. "dancing on the bed naked, grabbing [her] breasts" and showed M.S. "jumping up and down" unclothed. The defendant told S.M. that "he had found it in the tapes that he was going through, " although S.M. was "pretty sure" that the recording he was currently playing was on a DVD rather than a video home system ("VHS") tape. After Mrs. Melton remarked how "cute" the victims looked on the recording, S.M. turned away and left the residence.

         When M.S. was about 16 years old, she learned for the first time that a video recording of her actions with S.M. existed. This knowledge caused M.S. to feel "[h]umiliated and embarrassed and ashamed." On cross-examination, M.S. admitted that she had never seen the video and had no personal knowledge that the video existed.

         After Knoxville Police Department ("KPD") Investigator Jonathan Harris spoke with both M.S. and S.M., he executed a search warrant of the defendant's residence on June 23, 2015. As a result of that search, Investigator Harris recovered the video camera at issue as well as nearly 3, 000 VHS tapes and "several hundred" DVDs. In the course of his investigation, Investigator Harris located three DVDs that were labeled as "Girls Gone Wild." Two of the DVDs were "bootlegged" copies of a "Girls Gone Wild Ultimate Spring Break" video, wherein men with video cameras would frequent bars, motels, and beaches and ask women "to show their breasts and get naked for the camera, dance with each other, make out." The third DVD was unplayable but a note on the DVD case was labeled as "[M.S.] and [S.M.] making home movie." The disc itself was labeled as "[M.S.] and [S.M.]'s, a Girls Gone Wild movie."

         KPD employee Brittany Hodge, an electronic evidence collection specialist, examined the unplayable DVD and was able to determine that it previously "had some kind of data on it" and that it was "not a blank disk that would be fresh out of the packaging from the store." Ms. Hodge explained the methodology behind this process as follows:

[J]ust looking at [the DVD] in a visual manner, it has had - it's darker in color. Any DVD that you would buy, when you put it in your computer to, you know, burn data onto it, like pictures or videos, it's not as dark. And then when I put it in my computer that I use to conduct the forensic exams, it did not prompt me - you know, it didn't say, you inserted a blank disk. What would you like to do with it? It didn't - it didn't go through that. And when I added it into my software, it showed that it was zeros in the data.

         Ms. Hodge testified that, based on her training and experience, the DVD had been erased rather than having been corrupted.

         With this evidence, the State rested. Following a Momon colloquy and the trial court's denial of the defendant's motion for judgment of acquittal, the defendant elected to testify and chose to present proof.

         Pamela Hancock, the self-professed best friend of Mrs. Melton, testified that she was once present at the defendant's residence when S.M. delivered a video to the defendant, and she stated that she heard S.M. tell the defendant, "Daddy said to give you this Girls Gone Wild tape." The incident stood out to Ms. Hancock because, at the time, S.M. was "a little bit younger than" Ms. Hancock's son, and Ms. Hancock "didn't think that a child that young would even know what that meant." On ...

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