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State v. Melton

Court of Criminal Appeals of Tennessee, Knoxville

October 7, 2019


          Session: July 23, 2019

          Appeal from the Criminal Court for Knox County No. 106609 Bobby R. McGee, Judge

         Defendant, Howard Melton, was convicted of assault by offensive touching and sexual battery by an authority figure. As a result of the convictions, the trial court sentenced Defendant to serve four years in incarceration, consecutively to the sentence Defendant received in a separate case. After the denial of a motion for new trial, Defendant appealed, arguing that the trial court improperly admitted a videotape into evidence. Because the trial court did not abuse its discretion in admitting the evidence, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

          Keith Lieberman (at trial) and Gerald Gulley (on appeal), Knoxville, Tennessee, for the appellant, Howard F. Melton.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant Attorney General; Charme P. Allen, District Attorney General; and Rachel Russell and Joanie Steward, Assistant District Attorneys General, for the appellee, State of Tennessee.

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



         The Knox County Grand Jury issued a presentment on October 27, 2015, charging Defendant with two counts of aggravated sexual battery and one count of sexual battery by an authority figure for events that took place at Defendant's house involving one of his granddaughters, the victim.[1]

         Defendant and his wife, Patty Melton, lived in Knox County. They had seven grandchildren. The victim was one of their granddaughters, born on July 15, 1996. She spent several weekends each month at her grandparent's home for "longer than [she] can remember." Defendant had an above-ground pool in his backyard that was visible from the street. The victim's cousin, one of Defendant's other granddaughters, often spent the weekend at Defendant's house while the victim was there. The victim's cousin was two weeks older than the victim. During their teen years, the girls stopped spending the night together at Defendant's house after Defendant told the victim that the victim's cousin hated her. The victim later found out that this was not true. Eventually, the victim made allegations that Defendant had touched her breasts on various occasions and touched her vagina on one occasion. Those allegations led to the issuance of the presentment at issue herein.

         Prior to trial, the trial court discussed the preliminary matter of the introduction of videotapes found during the investigation of the case - one of which depicted the victim and her cousin in a swimming pool in Defendant's backyard and one of which depicted the victim and her cousin changing out of bathing suits on Defendant's back porch. The videotapes were taken in August of 2008, when the victim was 12. The top of the victim's bathing suit is pulled down in the pool videotape, exposing her breasts. The girls can be heard talking to Defendant on the videotape. The victim asks Defendant what piece of clothing she should take off next. Defendant can be heard telling the victim that he does not want her to take off her clothing. In the porch videotape, the victim and her cousin are seen changing out of bathing suits and into clothing on the back porch of Defendant's house. Both of the girls are in various stages of undress. The porch videotape is taken through a set of blinds and it does not appear that the girls know they are being filmed.

         The State informed the trial court that the videotapes were being offered to establish "that the intent was for sexual arousal or gratification." The State told the trial court that the videotapes were taken during the time frame alleged in the indictment for the sexual batteries and were relevant to show intent because "the victim takes off her top, and [Defendant] continues to actually zoom in to her breasts, her nude breasts, on multiple occasions." Counsel for Defendant objected to the introduction of the videotapes, claiming that they were "evidence of uncharged crimes" and "whatever probative value [they have] is outweighed by the danger of prejudice." Counsel for Defendant argued that they were inadmissible under "403 and 404." The State responded that nothing in the videotapes was charged as a crime because the acts were "outside the statute of limitations." The State further argued that the videotapes were not being introduced "strictly as a prior bad act" but that they were being used "directly to [show] intent" of Defendant's "behavior during the exact same time frame that he is actively touching the victim's breasts."

         After viewing the videotapes, the trial court determined that the videotapes "pertain to what his intentions were during this period of time, and [they are] certainly probative of his interest in the bare bodies of these young girls." The trial court continued:

On the other hand, it is not him directly - - it's not - - it's not such that it's going to inflame the passions of the jury. It's all fairly - - well, I'm not sure what word to use, but it's not like he's directing a porno film with the little girls. It's more innocent than that. I don't think - - I think it is probative. And the danger of unfair prejudice is not that great, given what you actually see on the video, and some of it actually could be arguably beneficial to him at one point.[2]

         The trial court concluded by finding that the videotapes were admissible.

         The victim was twenty-one years old at the time of trial. She recalled spending the night at Defendant's house on a weeknight during the summer when she was eleven years old. On this particular occasion, the victim was the only grandchild spending the night at Defendant's house. The victim slept in the back bedroom of the house and wore a pink nightgown to bed. The victim explained that she wore the pink nightgown "[a]ny time [she] went over there, up until [she] was about [fifteen]." The victim woke up that particular morning when she "felt like a small pressure down in [her] pelvic area." She was "laying on [her] stomach with [her] nightgown pulled up, with [her] panties pulled to the side, and [Defendant] was stroking [her] vagina" on the outside with his fingers. The victim opened her eyes "for about four seconds" before closing them again. She did not actually see Defendant when she opened her eyes. The victim explained she was in "shock," so she "stayed still" and "acted like [she] was ...

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