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
