Appeals panel affirms molester’s dissemination sentence, refines scope of ‘performance’

A man who molested children in his home lost his appeal on the argument that showing children pornographic images on a cellphone and exposing himself to them was not a public performance.

Rodney Melton was convicted in Marion Superior Court of Class C felony child molesting and Class D felony dissemination of matter harmful to minors and sentenced to an aggregate 11 years in prison. The Indiana Court of Appeals on Wednesday affirmed his convictions and sentence.

In Rodney Melton v. State of Indiana, 49A02-1212-CR-1008, Melton didn’t challenge the more severe molestation conviction, but noted that the language governing the dissemination of matter harmful to minors statute in I.C. 35-49-3-3 requires a “performance … performed before an audience of one (1) or more persons.”
Melton argued that because his acts took place in a private area, he didn’t engage in a “performance.”

Melton cited Low v. State, 580 N.E.2d 737 (Ind. Ct. App. 1991), in which the appeals panel reversed a conviction of obscene performance for an escort arrested after an encounter with an undercover Carmel police officer when the department staged a sting operation.

“We find that case distinguishable,” Judge Elaine Brown wrote for the panel. “As pointed out by the State, Low did not involve an appeal from a conviction for dissemination of matter harmful to minors. Rather, Low involved two adults in a hotel room and a charge of an obscene performance.”

Also citing the dissent in Riffel v. State, 549 N.E.2d 1084 (Ind. Ct. App. 1990), trans. denied, Brown wrote, “there is no requirement in the statute defining performance that the performance take place in public.”

The court also rejected Melton’s argument that his sentence was inappropriate in light of his character and the nature of the offense, citing his “serious and escalating criminal history despite his young age, and the depravity of the offenses.”