Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs October 10, 2017
from the Criminal Court for Knox County No. 106607 Bob R.
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.
R. App. P. 3; Judgment of the Criminal Court
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.
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen and Robert L. Holloway, Jr., JJ.,
CURWOOD WITT, JR., JUDGE
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.
State's proof at trial showed that the defendant was the
stepgrandfather of victim M.S. 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
. . . .
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.
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."
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.
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
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.
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."
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
Hodge testified that, based on her training and experience,
the DVD had been erased rather than having been corrupted.
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.
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 ...