                                                                                         02/16/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              Assigned on Briefs October 10, 2017

                  STATE OF TENNESSEE v. HOWARD MELTON

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


                                  No. E2017-00613-CCA-R3-CD


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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

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.

                                                OPINION

             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

1
       As is the policy of this court, we will refer to the victims by their initials.
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
                                           -2-
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.



                                          -3-
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 cross-examination, Ms.
Hancock admitted that she did not actually see the video and was unsure whether it was a
VHS tape or a DVD.

              The defendant testified that, on one occasion, S.M. and M.S. entered the
room where he was seated. S.M. reached over his shoulder and said, “[H]ere’s a Girls
Gone Wild video Daddy said to give you.” The defendant testified that he made no
comment and merely placed the video on a shelf where he kept items to keep them away
from his grandchildren. Later that afternoon, the victims approached the defendant and
asked if they could borrow his camera to video their dollhouse and dolls. The defendant
reluctantly agreed after M.S. assured him that she knew how to operate the camera. The
defendant then retrieved a new video tape, placed it inside the video camera, and gave the
camera to the victims.

              Less than an hour later, the victims returned to the defendant and explained
that they were unhappy with their recording and that they wished to erase it. The
defendant demonstrated to the victims the method for erasing the tape, and the victims
returned to their bedroom. Approximately two hours later, the victims brought the
camera back to the defendant. He removed the tape, which he believed to be blank, and
he placed it on the shelf with other video tapes.

              Several months later, the defendant retrieved that same video tape and
discovered that it was not blank. Instead, the defendant saw the victims “up on the bed
and hollering like it was in a stadium, ‘Girls Gone Wild,’ like that.” The defendant
watched approximately two to three minutes of footage and stated that the victims were
“fully clothed.” Believing that the video would be “something cute to show them later
on,” the defendant labeled the video tape as “[M.S.] and [S.M.] home video” and put the
tape away.

                                           -4-
              Nine years later, the defendant discovered the tape again. On Mother’s Day
2015, the defendant showed the video to M.S., her mother, and her stepfather, who is the
defendant’s son. M.S. told the defendant that she didn’t “really want to watch it” but that
she “want[ed] to take it home.” Because the defendant’s son did not own a device that
would play a VHS tape, he asked the defendant to convert the video to a DVD. The
defendant did so, labeling the DVD as “Girls Gone Wild, [M.S.] and [S.M.]”

               The defendant denied ever showing the victims a “Girls Gone Wild” video
or instructing them as to what the victims should film. The defendant also insisted that
S.M. had never seen the video that the victims made and that M.S. was mistaken in her
belief that she had never seen it.

              When asked on cross-examination if he was familiar with “Girls Gone
Wild” videos at the time that S.M. allegedly brought a copy to him, the defendant
explained that he had received such videos before from S.M. but that he “didn’t get into
that” because he was “60 years old.” The defendant denied ever watching that particular
“Girls Gone Wild” video. The defendant testified that he was “not into pornography”
and that he was “way older than – you know, to want to see something like that.” When
shown a copy of a second, shorter version of a “Girls Gone Wild” video found by
Investigator Harris in the defendant’s house, the defendant admitted that it was labeled
with his handwriting. The defendant thought that he “might have attempted” to make a
copy of that video but that he was unsure why he would have done so.

              Upon further questioning, the defendant stated that he was “not interested”
in pornography and denied having an interest in pornography when the victims made
their own “Girls Gone Wild” video at his residence. The defendant conceded that he did
own pornography at that time and that he kept it hidden underneath his bed. The
defendant insisted that he had never asked his son to send the “Girls Gone Wild” video to
his house with S.M.

              On redirect examination, the defendant agreed that he “had some interest in
pornography when [he] was younger” but that he had lost interest as he had aged, and the
defendant stated that “[w]hat little [he had] seen was on HBO and stuff.”

              On recross examination, the defendant explained that he copied the short
“Girls Gone Wild” video for his brother but insisted that he personally had never watched
it. The defendant admitted that he possessed some printed poronogaphic material but
stated that some of it belonged to his sons and grandchildren.




                                           -5-
              A.M.,2 the defendant’s son and M.S.’s stepfather, offered rebuttal testimony
for the State. He recalled being present at the defendant’s residence on Mother’s Day
2015, but he denied that the defendant showed a video portraying M.S. and S.M. on that
day or on any other day. A.M. testified that the defendant had never asked him to watch
a video and that he would have remembered if he had seen a video involving M.S. and
S.M.

              Based on this evidence, the jury convicted the defendant as charged of
sexual exploitation of a minor. Following a sentencing hearing, the trial court sentenced
the defendant as a standard offender to a term of 3 years’ incarceration to be served at 30
percent.

              Following the denial of his timely motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant contends that the trial court erred
by permitting the State to cross-examine him about his interest in pornography and that
the evidence was insufficient to support his convictions. We will address each issue in
turn.

                               I. Cross-Examination of Defendant

               The defendant first contends that the trial court erred by permitting the
State to repeatedly cross-examine him regarding his purported interest in pornography
because the probative value of such testimony was substantially outweighed by the
danger of unfair prejudice. The State responds that the defendant opened the door to this
line of questioning by downplaying his interest in pornography and that, in any event, the
testimony was not so inflammatory as to have been unfairly prejudicial.

              During cross-examination, the defendant, when questioned regarding his
familiarity with the contents of “Girls Gone Wild” videos, responded that he “didn’t get
into that” and insisted that he had not watched the video allegedly handed to him by S.M.
The State later revisited the issue of the defendant’s interest in “Girls Gone Wild” videos,
and the following exchange occurred:

                      Q:      And you said that even though . . . [S.M.’s
               father] sent the Girls Gone Wild video with S.M., that you’re
               not into that kind of thing?




2
       To protect the anonymity of the victims, we will refer to this witness by his initials.
                                                 -6-
                     A:    Well, no. I mean, I’m not – I mean, guys are
             going to be guys, but I’m way older than – you know, to want
             to see something like that.

                     Q:   Okay. Now, when you said you wouldn’t want
             to see something like that, what are you talking about?

                    A:    Any, you know, Girls Gone Wild tape. It’s all
             the same thing.

                    Q:     Okay. What – what is all the same thing?
             You’re talking about – when you say “Girls Gone Wild,” are
             you talking about pornography?

                    A:      Some of it’s not.

                    Q:    Okay. Then are you saying that you wouldn’t
             be – when you say you’re not into that kind of thing, are you
             saying you’re not into pornography, that you’re not into –

                    A:     No, I’m not into pornography.

              In a hearing outside the presence of the jury, the State argued that the
defendant had opened the door to questions about pornographic materials found in his
home. Defense counsel responded that the probative value of such evidence was
substantially outweighed by the danger of unfair prejudice. The trial court ruled that the
defendant had, in fact, “distanced himself from any interest in pornographic material,”
which therefore opened the door to allow the State “to challenge him as to whether or not
he has ever had an interest in pornography and ever collected” pornography. The trial
court refused to allow the State to address “specific instances of the pornography” or “the
amount of the pornography.”

               When the jury returned to the courtroom, the State resumed its cross-
examination of the defendant. The defendant reitereated his lack of interest in
pornography at the time the victims made the video at issue. He admitted, however, that
he had owned pornography during that time period and that he kept it under his bed. On
redirect examination, he agreed that he had “aged out of” his interest in pornography and
that “[w]hat little [he had] seen was on HBO and stuff.”

             The State again requested a bench conference, arguing that the defendant
had opened the door to the introduction of specific pornographic magazines dated around
                                           -7-
the time of the offense that were found in his house and explaining that the discovery of
those magazines belied the defendant’s contention that his knowledge of pornography
was limited to HBO. Expressing concern that “the danger of unfair prejudice bleeding
over into this case outweigh[ed] the probative value,” the trial court permitted the State to
conduct a proffer examination of the defendant outside of the jury’s presence.

              During the proffer examination, the defendant testified that he had never
gone “to the porn store” and purchased any pornographic materials. The defendant
claimed that all of the printed pornographic material found in his home belonged to his
two sons and had been collected prior to the birth of any of his grandchildren. He
acknowledged that he had inherited video tapes from his brother but denied receiving any
printed materials from his brother. The State then argued to the trial court that
Investigator Harris had found six pornographic magazines in the defendant’s house that
had been published in the 2000s and that the defendant’s youngest two grandchildren had
been born in the 1990s. The State asked permission to introduce into evidence those six
magazines which contradicted the defendant’s prior testimony. The trial court ruled as
follows:

              [T]he State has established that [the defendant] has had an
              interest in pornography. And to try to go into further detail
              about it is, I think, leading us into an area of unfair prejudice.
              . . . You can establish that the stuff he got wasn’t just from
              HBO and ask him what sources he did use and that’s where
              the [c]ourt’s going to have to stop.

                     ....

              And [the defendant] did open [the door] part of the way, and
              I’ve allowed the State to go into the fact that he has been a
              pornographer – a pornography collector. And I’ll let you go
              further and establish that it was more than just HBO. And at
              that point, the [c]ourt’s going to have to say stop.

              With the jury back in the courtroom, the State resumed its recross-
examination of the defendant, in which he acknowledged that he had previously testified
that the only pornographic material he had seen had been limited to HBO and Showtime.
He then admitted that he had some printed pornographic material in his house but
claimed that some of it belonged to his sons and grandchildren and explained that he and
his wife just “stored” it at their home. The defendant also admitted that he had made a
copy of a “Girls Gone Wild” video for his brother but that he had never watched it.

                                             -8-
               Questions concerning evidentiary relevance rest within the sound discretion
of the trial court, and this court will not interfere with the exercise of this discretion in the
absence of a clear abuse appearing on the face of the record. See State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993);
State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when the
trial court applies an incorrect legal standard or reaches a conclusion that is “illogical or
unreasonable and causes an injustice to the party complaining.” State v. Ruiz, 204
S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
2006)).

              Relevant evidence is evidence “having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which
is not relevant is not admissible,” Tenn. R. Evid. 402, and even if evidence is deemed
relevant, it may be still be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence,” Tenn. R. Evid. 403.

              Generally speaking, “[e]vidence of a person’s character or trait of character
is not admissible for the purpose of proving action in conformity therewith on a particular
occasion.” Tenn. R. Evid. 404(a). This rule is subject to certain exceptions, however,
including “evidence of a pertinent trait of character offered by an accused or by the
prosecution to rebut the same.” Tenn. R. Evid. 404(a)(1). In addition, “[e]vidence of
other crimes, wrongs, or acts” may be admissible for “other purposes,” such as proving
identity, criminal intent, or rebuttal of accident or mistake. Tenn. R. Evid. 404(b); State
v. Thacker, 164 S.W.3d 208, 239-40 (Tenn. 2005).

              Although not raised by either party, we believe the true avenue for
admission of the defendant’s interest in and possession of pornographic material was
impeachment through fact contradiction. “Through fact contradiction, a cross-examining
party inquires about facts that conflict with the witness’s testimony to show indirectly
that the witness is untruthful.” State v. Jeremy Sims and Sherry Brookshire, No. W2013-
01253-CCA-R3-CD, slip op. at 20 (Tenn. Crim. App., Jackson, Sept. 25, 2015). Fact
contradiction is a long-standing impeachment device that is indigenous to cross-
examination and enjoys implied currency in our rules of evidence; it emanates simply
from the power to attack a witness’s credibility as expressed in Tennessee Rule of
Evidence 607. Id.; see Neil P. Cohen et al., Tennessee Law of Evidence § 6.07[4][a] (6th
ed. 2011). Here, the defendant testified in no uncertain terms that he was not “into
pornography” and attempted to limit his knowledge of or interest in pornography to that
which he had seen on HBO and the like. The State was then properly allowed to question
                                              -9-
the defendant about his possession of printed pornographic material, which clearly
contradicted his prior testimony. With respect to the relevancy of such testimony, the
trial court conducted more than one thorough and thoughtful bench conference, with an
eye toward the potential prejudicial impact of such testimony, and strictly limited the
State’s ability to question the defendant about any specific pornographic material. Thus,
we conclude that the probative value of the testimony regarding the defendant’s interest
in pornography was not substantially outweighed by the danger of unfair prejudice.

                                       II. Sufficiency

              The defendant also contends that the evidence is insufficient to support his
conviction of sexual exploitation of a minor. We disagree.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

              As charged in this case, “[i]t is unlawful for any person to knowingly
possess material that includes a minor engaged in . . . [s]exual activity.” T.C.A. § 39-17-
1003(a)(1). “Sexual activity,” as is relevant to this case, includes “[l]ascivious exhibition
of the female breast or the genitals, buttocks, anus or pubic or rectal area of any person.”
Id. § 39-13-1002(8)(G).

              Appellate review of the determination of lasciviousness is a mixed question
of fact and law. See State v. Whited, 506 S.W.3d 416, 427 (Tenn. 2016).

              The appellate court must review the finding by the trier of
                                            - 10 -
              fact that the depiction is a lascivious exhibition, including
              underlying factual issues such as the extent to which the
              minor appears nude or whether the minor appears to be
              portrayed in a sexually suggestive manner. See [United
              States v.] Rayl, 270 F.3d [709,] 714 [(8th Cir. 2001)]. In
              addition, looking at the evidence in a light most favorable to
              the verdict, the appellate court must determine whether the
              depiction is legally sufficient to constitute a “lascivious
              exhibition” within the meaning of the statute. The latter
              determination is a question of law subject to plenary review.
              Id.

Id., 506 S.W.3d at 427.

               Although “lascivious exhibition” does not have a statutory definition, our
supreme court addressed it extensively in Whited. Noting that a determination of
lasciviousness is “‘an intensely fact-bound question,’” the high court stated that “it is
generally accepted that mere nudity, without more, is insufficient to establish a lascivious
exhibition of private body areas.” Id. at 431 (quoting United States v. Schuster, 706 F.3d
800, 806 (7th Cir. 2013)). In Whited, the defendant surreptitiously recorded his victims
doing ordinary, daily activities: entering and exiting the shower, using a towel to dry off,
grooming, and changing clothes. Whited, 506 S.W.3d at 442. Each of the videos at issue
“depict[ed] nudity of a minor or minors to varying degrees,” but the camera never
focused exclusively on the victims’ private areas, and “nothing in the videos indicate[d]
that the victims were posed or coached; they [were] not in any unnatural or overtly sexual
poses and appear[ed] unaware of the camera.” Id. at 442, 446. Although finding the
“question [to be] close,” the court held that the videos did not rise to the level of
lascivious exhibition primarily because the minor victims were “engag[ed] in everyday
activities that [were] appropriate for the settings and [were] not sexual or lascivious
within the ordinary meaning of those terms.” Id. at 447.

              Similarly, in State v. Robert Grisham, No. E2015-02446-CCA-R3-CD
(Tenn. Crim. App., Knoxville, May 5, 2017), perm. app. denied (Tenn. Sept. 20, 2017),
the defendant concealed a camera in a bathroom to record the minor victim taking a
shower and performing other ordinary grooming tasks. Id., slip op. at 34. This court
likewise held that the video recording was insufficient to constitute lascivious exhibition.
Id.

              In the instant case, the proof at trial established that, when the victims were
10 or 11 years of age, the defendant, their grandfather, showed them a “Girls Gone Wild”
video and told the victims that “that’s how girls their age acted.” The defendant then told
                                            - 11 -
the victims that they should record their own video, provided them with a video camera,
showed them how to operate it and how to hit the “record” button, and assured them that
the camera did not include a video tape. The victims then entered their bedroom, where
they removed all of their clothing and took turns dancing in front of the camera, jumping
on the bed, and “grabbing” their breasts, even using a lamp as a stripper pole. Later that
night, the defendant retrieved the video camera. Several years later, the defendant
showed the video recording to 17-year-old S.M., who described seeing herself “dancing
on the bed naked, grabbing [her] breasts” and watching M.S. “jumping up and down”
while naked. Investigator Harris located two “Girls Gone Wild” DVDs in the
defendant’s residence, as well as a DVD case labeled as “[M.S.] and [S.M.] making home
movie” and the included DVD labeled as “[M.S.] and [S.M.]’s, a Girls Gone Wild
movie.” Ms. Hodge, a KPD electronic evidence collection specialist, examined the latter
DVD, found it to be unplayable, and determined that the content on the DVD had been
erased. The defendant admitted that the victims had made a video at his house in which
they were “up on the bed and hollering like it was in a stadium, ‘Girls Gone Wild,’ like
that” and that he had converted the video to a DVD which he labeled as “Girls Gone
Wild, [M.S.] and [S.M.].” Although the defendant claimed that the victims were fully
clothed in the video, such matters of witness credibility and evidentiary weight are within
the exclusive province of the trier of fact, and this court will not reweigh such evidence.
See Dorantes, 331 S.W.3d at 379.

               When viewing this evidence through the lens of Whited, we find that the
portrayal of the victims in the video, as described by the victims, was certainly more than
mere nudity, and, unlike the victims in Whited and Grisham, the victims in the instant
case were not simply engaging in ordinary, daily activities. M.S. and S.M. were actually
directed by the defendant to make their own “Girls Gone Wild” video after being shown
a pornographic video and being provided with the means to make a video of their own by
the defendant. The victims’ self-described acts of removing all of their clothing, dancing
in front of the camera, jumping on the bed, grabbing their breasts, and using a lamp as a
stripper pole could certainly be construed as “unnatural” and “overtly sexual,” and the
victims were unquestionably aware of the camera. Whited, 506 S.W.3d at 446. Thus,
these facts cogently establish that the video portrayed a lascivious exhibition and,
therefore, that the defendant knowingly possessed material that included minors engaged
in sexual activity.

               Viewing this evidence in the light most favorable to the prosecution, we
find that the evidence adduced at trial sufficiently established the defendant’s conviction
of sexual exploitation of a minor.




                                           - 12 -
                                   Conclusion

            Based upon the foregoing analysis, the judgment of the trial court is
affirmed.


                                                _________________________________
                                               JAMES CURWOOD WITT, JR., JUDGE




                                      - 13 -
