Kamion D. Melton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 25, 2019
• Docket: 18A-CR-1142
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 25 2019, 9:14 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana

J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kamion D. Melton, February 25, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1142 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable David D. Kiely, Appellee-Plaintiff. Judge The Honorable Michael J. Cox, Magistrate Trial Court Cause No. 82C01-1712-F5-7800

Sharpnack, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 1 of 11 Statement of the Case [1] Kamion Melton appeals his Level 5 felony conviction of carrying a handgun 1 without a license. We affirm.

Issue [2] Melton presents one issue for our review, which we restate as: whether the trial

court erred by admitting certain video evidence.

Facts and Procedural History [3] In the late afternoon of December 18, 2017, an Evansville police officer

observed a vehicle traveling without its headlights on and failing to signal a

turn. The officer stopped the vehicle, approached, and asked for identification

from the three occupants. When he did so, he detected an odor of marijuana

coming from the vehicle.

[4] Melton was the front passenger in the vehicle, and the officer noticed him

reaching underneath his seat. The officer asked Melton not to reach under his

seat, but Melton continued to do so four or five more times. The officer called

for back-up, and, when the back-up arrived, the officers removed and secured

the occupants of the car. The officer then searched the car and found a loaded

1 Ind. Code § 35-47-2-1 (2017).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 2 of 11 handgun underneath the front passenger seat. While speaking to police, Melton

denied the handgun was his.

[5] Later that evening, a detective heard Melton mention Snapchat while the police

were interviewing him. The detective located Melton’s account on Snapchat

and watched his Snapchat story, which contained a video of him displaying a

handgun. As the detective watched, she also recorded the story with her phone.

The detective then informed the officers working on the case about the video

and described the handle of the gun in the video, which matched the description

of the gun seized in the search of the car.

[6] Prior to the start of trial, the court granted Melton’s motion in limine as to the

Snapchat video. Later that morning and out of the presence of the jury, the

court heard argument from the parties and allowed the State to make an offer of

proof as to the admissibility of the video. The State described to the court that

in the video Melton is singing to rap music as he pulls up his shirt to display a

handgun in his waistband. The State alleged the handgun in the video is the

same handgun that was seized as a result of the search of the car and which had

already been admitted into evidence as State’s Exhibit 1. The State further

explained that it intended to recall the arresting officer in order for him to testify

that Melton was wearing the same clothes in the video that he was wearing

when the officer stopped the car. The State then played the Snapchat video for

the court.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 3 of 11 [7] After further argument, the State made its offer of proof by means of the

detective’s testimony. The detective testified that on Melton’s Snapchat story a

video showed him “listening to music and he pulled up his shirt . . . and was

showing a butt of a gun . . . .” Tr. Vol. II, p. 218. On cross examination she

agreed that, within the Snapchat app, a video can be taken and uploaded to the

user’s Snapchat story where it remains and can be viewed for 24 hours. The

detective was also questioned about uploading to Snapchat videos that are

taken with the camera on the user’s phone (i.e., videos not recorded within the

Snapchat app). She indicated she personally could no longer perform that

action, and she was not able to confirm whether that was simply an issue with

her device or whether the action was no longer permitted in the Snapchat app.

She also could not confirm whether the action was permitted in December

2017. When questioned as to the two hour time stamp on the video, the

detective testified that, because a user can add pictures and/or videos to the

story throughout the 24 hour period, she was not sure whether the time stamp

indicated the time that had passed since that particular video had been posted to

the story or the time that had passed since the last addition was posted to the

story.

[8] The court stated it had reviewed the video and found it to be relevant, and it

would allow the detective’s testimony concerning the video and the admission

and publication of the video. The court further stated that Melton could then

make an argument to the jury about whether the video was recorded the day of

the incident or at some other time. It also noted its observation of the similarity

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 4 of 11 between the handle of the gun that was in Melton’s waistband in the video and

the handle of State’s Exhibit 1 and concluded that the handles are “reasonably

or very similar.” Id. at 229. In addition, as to the video, the court determined

that “the prejudicial value is outweighed by the probative value.” Id.

[9] The jury found Melton guilty as charged. The court merged the two counts and

sentenced Melton to four years and 182 days. He now appeals his conviction.

Discussion and Decision [10] Melton contends the trial court erred by admitting into evidence the Snapchat

video. The trial court’s ruling on the admission or exclusion of evidence is

reviewed for an abuse of discretion. Cherry v. State, 57 N.E.3d 867, 875 (Ind.

Ct. App. 2016), trans. denied. An abuse of discretion occurs when a decision is

clearly against the logic and effect of the facts and circumstances before the

court. Paul v. State, 971 N.E.2d 172, 175 (Ind. Ct. App. 2012).

[11] Melton’s main claim is that the Snapchat video should have been excluded

pursuant to Evidence Rule 404 because it is improper character and misconduct

evidence.

1. Character Evidence [12] Evidence Rule 404(a) prohibits the use of evidence of a defendant’s character or

character trait to prove that on a particular occasion the defendant acted in

accordance with that character or trait. Melton claims the video was

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 5 of 11 improperly used to portray him as a violent person who habitually carried a

weapon.

[13] Contrary to Melton’s claim, the video was not offered as evidence of his poor

character; rather, the video was offered as evidence of his possession of the

handgun seized from the car. When questioned by police, Melton denied that

the handgun was his, but the video tended to prove that he had possessed a

handgun earlier in the same day and that it was the same handgun that was

found underneath his seat in the car. Accordingly, the trial court’s admission of

the video was not an improper admission of character evidence under Rule

404(a).

2. Other Crimes, Wrongs, or Acts [14] Evidence Rule 404(b) prohibits the use of evidence of the defendant’s other

crimes, wrongs, or acts in order to prove present action in conformity therewith.

The evidence may, however, be admissible for other purposes such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident. Id. This list is illustrative, not exhaustive. Shoultz

v. State, 995 N.E.2d 647, 655 (Ind. Ct. App. 2013), trans. denied. Rule 404(b) is

designed to prevent the jury from assessing a defendant’s present guilt on the

basis of past bad acts—the “forbidden inference.” Erickson v. State, 72 N.E.3d

965, 973-74 (Ind. Ct. App. 2017), trans. denied.

[15] In assessing the admissibility of 404(b) evidence, the court must (1) determine

whether the evidence is relevant to a matter at issue other than the defendant’s

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 6 of 11 propensity to commit the charged act, and, if so, (2) balance the probative value 2 of the evidence against its prejudicial effect pursuant to Evidence Rule 403. Id.

at 974. The effect, then, of Rule 404(b) is that evidence is excluded only when

it is introduced to prove the forbidden inference of demonstrating the

defendant’s propensity to commit the charged crime. Jackson v. State, 105

N.E.3d 1142, 1146 (Ind. Ct. App. 2018), trans. denied.

a. Relevance

[16] Melton argues that the Snapchat video should not have been admitted into

evidence because it is not relevant. Relevant evidence is evidence having any

tendency to make a fact, that is of consequence in determining the action, more

or less probable than it would be without the evidence. Ind. Evidence Rule 401.

Generally speaking, all “[r]elevant evidence is admissible.” Evid. R. 402. The

standard set forth in Rule 401 is a liberal one, and the trial court’s ruling on

relevance is reviewed for an abuse of discretion. Patton v. State, 725 N.E.2d 462,

464 (Ind. Ct. App. 2000). “Even if proffered evidence or testimony is only

marginally relevant, it is within the sound discretion of the trial court to admit.”

Smith v. State, 730 N.E.2d 705, 708 (Ind. 2000).

[17] The discovery of the handgun underneath Melton’s seat in the car brought

about the charge of carrying a handgun without a license. With regard to that

2 Melton raised the relevancy of the video and its prejudicial effect as separate arguments in his brief to this Court. Because these issues are addressed within the context of the Rule 404(b) analysis, we do not separately address them.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 7 of 11 charge, Melton denied possession of the gun. The video tends to demonstrate

Melton’s knowing and intentional possession of a handgun that appears to be

the same gun found in the car later the same day. The video was clearly

relevant and, therefore, admissible generally under Rules 401 and 402.

Furthermore, the video clears the relevancy hurdle under 404(b) because it is

relevant to Melton’s possession of the gun—a matter other than Melton’s

propensity to commit the present offense.

b. Probative Value v. Prejudicial Effect

[18] Although relevant, evidence may be excluded if its probative value is

substantially outweighed by its prejudicial impact. See Evid. R. 403.

“Evaluation of whether the probative value of an evidentiary matter is

substantially outweighed by the danger of unfair prejudice is a discretionary

task best performed by the trial court.” Bryant v. State, 984 N.E.2d 240, 249

(Ind. Ct. App. 2013), trans. denied. When determining any unfair prejudicial

impact, courts should look for the dangers that the jury will substantially

overestimate the value of the evidence or that the evidence will arouse or

inflame the passions or sympathies of the jury. Duvall v. State, 978 N.E.2d 417,

428 (Ind. Ct. App. 2012), trans. denied.

[19] Melton incorrectly claims the video has “no probative value” because there is

“no evidence from which to reasonably infer” either that the gun in the video is

the same gun found in the car or that the video was “made at or around the

time of the traffic stop.” Appellant’s Br. pp. 15-16. On behalf of the State at the

hearing outside the presence of the jury, the detective testified to the similarity Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 8 of 11 of the handgun in the video to the handgun seized during the search of the car,

to the procedure of making and posting Snapchat videos, and to the fact that

videos on a Snapchat story remain for only 24 hours. In addition, the State

informed the court that the arresting officer would testify to the fact that Melton

was wearing the same clothes in the video that he was wearing when he was

arrested. That the detective could not say unequivocally when the video was

taken does not completely diminish the probative value of the video.

[20] At the conclusion of the hearing, the court noted it had viewed the video and

had observed the similarity between the handgun shown in the video and

State’s Exhibit 1 (the seized handgun). The court determined that the probative

value of the video outweighed its prejudicial effect and stated that Melton could

argue the timing of the video to the jury. Thus, although we acknowledge that

all relevant evidence is inherently prejudicial to a defendant in a criminal case,

Erickson, 72 N.E.3d at 974, we cannot say the probative value of the video was

substantially outweighed by any prejudice to Melton. Consequently, we find

the trial court did not abuse its discretion in admitting the video at trial.

3. Harmless Error [21] Even if the trial court committed error in admitting the video, that error was

harmless. Error in the admission of evidence will prevail on appeal only if it

affects the substantial rights of a party. Carter v. State, 31 N.E.3d 17, 28 (Ind.

Ct. App. 2015), trans. denied. To determine whether a party’s substantial rights

have been affected, we consider the probable impact of the evidence on the fact

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 9 of 11 finder. Remy v. State, 17 N.E.3d 396, 401 (Ind. Ct. App. 2014), trans. denied.

The improper admission of evidence is harmless error “‘if the conviction is

supported by substantial independent evidence of guilt satisfying the reviewing

court there is no substantial likelihood the challenged evidence contributed to

the conviction.’” Id. at 401 (quoting Hoglund v. State, 962 N.E.2d 1230, 1238

(Ind. 2012)).

[22] Beyond the Snapchat video, the State’s evidence consisted of the arresting

officer’s testimony that Melton continued to reach under the seat of the car even

after he was asked not to. During his search of the car, the officer found the

loaded handgun under the front passenger seat where Melton had been sitting.

The officer also testified that the front passenger seat was so low and close to

the floorboard that he could not get his hand underneath it, and he answered in

the negative when specifically asked whether it would have been possible for

the rear passenger to have placed the handgun where he found it. Additionally,

State’s Exhibit 6, which is a recording of a jail telephone call between Melton

and an unidentified female, was admitted at trial. In the phone conversation,

Melton states, “It’s looking bad because they got . . . snapchat video of me and

sh*t. . . . I got caught with a gun.” Tr. Vol. III, p. 22. This is ample evidence to

support a reasonable factfinder’s conclusion that Melton was in possession of

the handgun. See Bradshaw v. State, 818 N.E.2d 59, 63 (Ind. Ct. App. 2004)

(concluding defendant was in possession of handgun where handgun seized

from vehicle was located directly beneath seat defendant occupied, handgun

faced front of vehicle and gun was easily accessible to defendant, and defendant

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 10 of 11 engaged in furtive movements by reaching under seat). Thus, we are satisfied

that there is no substantial likelihood the video materially influenced the verdict

in view of the evidence supporting Melton’s conviction.

Conclusion [23] We therefore conclude the trial court did not err by admitting into evidence the

Snapchat video.

[24] Affirmed.

Brown, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1142 | February 25, 2019 Page 11 of 11