MELTON v. STATE

r of their contents. There is no reason why the consignor of such a shipment would have any lesser expectation of privacy than the consignor of an ordinary locked suitcase. The fact that the cartons were unexpectedly opened by a third party before the shipment was (delivered to its intended consignee does not alter the consignor's legitimate expectation of privacy. The private search merely frustrated that expectation in part. It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection." 447 U.S. at 658-59, 100 S.Ct. at 2402-03 (footnotes omitted).

However, unlike Walter, this case does not involve a situation in which the property was mistakenly delivered to a third party who then opened the packages. Rather, Melton voluntarily turned over the computer to members of the Geek Squad and agreed to the Geek Squad removing viruses and spyware that was on the computer. Therefore, we must determine whether Melton had a reasonable expectation of privacy in the files on his computer after he turned the computer over to members of the Geek Squad.

The Superior Court of Pennsylvania addressed a similar situation in Commonwealth v. Sodomsky, 939 A.2d 363 (Pa.Super.Ct. 2007), as follows:

"On appeal, the Commonwealth maintains that the trial court erred in concluding that Appellee retained a privacy interest in the computer because he volitionally relinquished any expectation of privacy in that item by delivering it to Circuit City employees knowing that those employees were going to install and test a DVD drive. We agree in part with this contention.

". . . We begin our discussion with Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976), which extensively analyzes whether individuals have the right to contest the search of their personal property after they have abandoned a privacy interest in that item. In Shoatz, police were investigating a report that three men were acting suspiciously and appeared to be preparing to burglarize a store. Police initiated surveillance of the threatened premises and shortly thereafter observed three men, two of whom were carrying suitcases, appear in an alley adjacent to the store. One of the officers approached the men and asked to speak to them. The two men who were carrying suitcases dropped them, and all of the men fled. Police searched the suitcases and discovered illegal weapons. The defendants, who were immediately apprehended, raised constitutional objections to the search of their suitcases. Our Supreme Court concluded that when the defendants dropped their suitcases and ran, they abandoned that property and thus, were not entitled to contest the search.

". . . The Court noted that Pennsylvania has adopted the theory of abandonment, which applies as long as improper police conduct did not induce a defendant's desertion of his personal property. Pursuant to this legal construct, when an individual evidences an intent to relinquish control over personal property, he or she has abandoned a privacy interest in property and cannot object to any ensuing search of the item by police. Abandonment revolves around the issue of intent, which is determined from words, acts, and all relevant circumstances existing at the time the property is purportedly deserted. Accord Commonwealth v. Sanders, 407 Pa.Super. 270, 595 A.2d 635, 638 (1991) (`whether a person reasonably may expect that his or her possessions shall be free from unwarranted governmental intrusion depends on the facts and circumstances').

"As the Shoatz Court explained, `The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.' Shoatz, supra at 553, 366 A.2d at 1220.

"The theory of abandonment is extrapolated from the United States Supreme Court's observation that `the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.' Katz v. United States, 389 U.S. 347, 351-52, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (citations omitted); see also Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (defendant did not have reasonable expectation of privacy in his visible real estate containing marijuana).

"Our Supreme Court has more recently examined the principle in Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265 (1998). In that case, the defendant handed an item to another individual, who then placed it in his mouth. Police seized the individual and extracted the property, which consisted of illicit drugs. Our Supreme Court refused to allow the defendant to object to the seizure of the drugs, noting that under current Fourth Amendment jurisprudence, a defendant cannot object to a search unless he establishes a legitimate expectation of privacy `in the area searched or effects seized' and that such interest also must be sanctioned by society as reasonable and justifiable. Id. at 81, 718 A.2d at 267. It continued that a `legitimate expectation of privacy is absent where an owner or possessor meaningfully abdicates his control, ownership, or possessory interest' in his personal property. Id., at 81-82, 718 A.2d at 267. The Court concluded that the defendant had abandoned his expectation of privacy in the drugs by handing them to the drug purchaser and that he had no legitimate expectation of privacy in that individual's mouth. It also refused to grant the defendant derivative standing to object to the search of the drug purchaser's body under the Pennsylvania Constitution.

". . . In the present case, we limit our inquiry to a determination of whether Appellee's expectation of privacy in the videos on the computer that he relinquished to Circuit City employees for repairs was reasonable or whether he knowingly exposed the computer's video files to the public such that he voluntarily abandoned his privacy interest in them. The trial court found that Appellee did retain a privacy interest in the contents of the computer, reasoning that he did not expect the computer's contents `to be published to anyone other than employees of Circuit City as needed to complete the requested installation.' Trial Court Opinion, 3/6/06, at 7. In reaching this conclusion, the trial court noted that Appellee did not give Circuit City employees the right to delete files, access financial information, or access his e-mail and so thereby did not lose `all subjective' expectation of privacy in his computer. Id. at 8. Thus, the trial court found the subsequent seizure of the computer to be illegal.

"The trial court analogized this case to Commonwealth v. Davis, 743 A.2d 946 (Pa.Super. 1999), wherein we held that a tenant did not relinquish his privacy interest in an apartment merely because the landlord had limited access rights to the apartment and that the landlord could not, therefore, consent to a warrantless search of the apartment. Similarly, in Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), the Supreme Court found that under the Pennsylvania Constitution, a person retains a privacy interest in bank records, and further held that a bank cannot submit the records to the police in the absence of a search warrant. The DeJohn decision was based primarily on the fact that an individual's disclosure of financial records to a bank was not entirely voluntary in that one cannot participate in modern society without obtaining a bank account. The DeJohn Court also observed that a customer discloses his financial records to a bank for a limited purpose, to aid in conduct of financial affairs, and that a customer's expectation of privacy is not diminished merely because a bank maintains the records.

"Initially, we must observe that the trial court did not employ the proper legal standard. First, the court focused on the irrelevant question of whether Appellee gave Circuit City employees access to financial records and e-mail files. These items were not searched; what Appellee did not give employees permission to do is not the consideration. We must examine whether he did give access or knowingly risk access to his video files, which were the items discovered herein. Furthermore, contrary to the trial court's conclusion, if Appellee exposed the video contents of his computer to Circuit City employees, he abandoned his privacy interest in those computer contents because those employees were members of the public. If Appellee knowingly published his computer video files to members of the public, he had no reasonable expectation, under the applicable law, that the video files would not be disseminated to other individuals, including police.

"As noted, abandonment is a question of intent and dependent upon all the attendant facts and circumstances. In accordance with this pertinent standard, we therefore will scrutinize all the facts and circumstances to determine whether Appellee retained a reasonable expectation of privacy in his videos. First, we observe that Appellee gave the employees permission to perform certain actions relative to his computer files. He requested and consented to the installation of a DVD drive and was specifically informed that the drive's operability would be tested by Circuit City employees. Appellee failed to either inquire as to how the DVD drive would be tested or otherwise restrict the employees' access to his computer files for that purpose. Thus, Appellee should have been aware that he faced a risk of exposing the contents of his illegal video files.

Cf. United States v. Barth, 26 F.Supp.2d 929 (W.D.Tex. 1998) (computer owner did not lose reasonable expectation of privacy in computer files contained in searched hard drive because owner gave repairman, a confidential informant, hard drive for limited purpose of repairing problem unrelated to files that were searched).

"We also find it critical to our analysis that when the child pornography was discovered, the Circuit City employees were testing the DVD drive's operability in a commercially-accepted manner rather than conducting a search for illicit items. Cf. Barth, id. Appellee implies that the DVD drive should have been tested by inserting and playing a DVD. Appellee's brief at 3. Nevertheless, as noted, Appellee did not ask how the burner would be tested nor did he place any restrictions regarding the manner of that procedure. As Mr. Richert's testimony indicated, the playing of videos already in the computer was a manner of ensuring that the burner was functioning properly. Once the search for videos was initiated, the list of Appellee's videos appeared automatically on the computer screen. The employee testing the burner was free to select any video for testing purposes, as Appellee had not restricted access to any files. Therefore, Mr. Richert did not engage in a fishing expedition in this case.

"The final factor we utilize is the volitional nature of Appellee's actions. In this case, Appellee removed the computer from his home, took the computer to Circuit City, and left it there without either removing the videos containing child pornography or changing the titles of the videos so that they did not appear to have illegal content. Contrary to the circumstances in DeJohn, supra, where a person has little choice but to retain bank accounts in order to function in society, Appellee was not compelled to take this particular computer containing child pornography to the store in the first instance, nor was he forced to leave it there after being informed that the burner's operability would be checked. Appellee was aware of the child pornography and could have elected to leave the store with the computer rather than risk discovery of the porno graphic files.

"This scenario also stands in contrast with the landlord case relied upon by the trial court. Although landlords routinely retain the right to inspect their premises upon notice, people still retain a privacy expectation in their home despite its status as rental property. Here, however, we find that under the facts and circumstances presented, Appellee knowingly exposed to the public, the Circuit City employees, the contents of his video files. It is clear that Circuit City employees were members of the public; hence, if Appellee knowingly exposed the contents of his video files to them, as members of the public, he no longer retained an expectation of privacy in those videos nor could he expect that they would not be distributed to other people, including police.

". . . As noted, the trial court overlooked the attendant facts and circumstances in this case and improperly focused upon what access rights Appellee had not granted to the Circuit City employees. While the trial court may or may not be correct that Appellee retained a privacy interest in other computer files, such as e-mail or financial records, he did not retain a privacy interest in his videos under the facts and circumstances herein.

". . . Since Appellee abandoned his privacy interest in the videos contained in the computer, he cannot object to the subsequent viewing of the video list and file by police. As noted, our decision is firmly rooted in current Pennsylvania authority; we therefore reject Appellee's independent reliance on the Pennsylvania Constitution to protest the police actions in this case.

". . . Our result in this case is consistent with the weight of authority in this area. If a, person is aware of, or freely grants to a third party, potential access to his computer contents, he has knowingly exposed the contents of his computer to the public and has lost any reasonable: expectation of privacy in those contents. E.g. United States v. Simons, 206 F.3d 392 (4th Cir. 2000) (where employee was informed that his work-related internet activity would be scrutinized by employer, he had no legitimate expectation of privacy in fruits of his internet activity as he knowingly exposed such activity to public); United States v. King, [(No. 2:05CR301-WHA, Nov. 28, 2:006)] (M.D.Ala. 2006) [not reported in F.Supp.2d] (defendant knowingly exposed personal files to public under Katz by linking to network after being informed that personal files could and would be searched using network even though defendant attempted to protect files from network search); Lown v. State, 172 S.W.3d 753 (Tex.App. 2005) (defendant did not have reasonable expectation of privacy in files on work computer which were backed up at request of people in authority at defendant's company)."

(Footnotes omitted.)

Similarly, in this case, Melton voluntarily took his computer to the Best Buy store and turned it over to members of the Geek Squad. Also, the State presented evidence that indicated that Melton knew about the existence of the child pornography on the computer. Further, Woods testified that he found viruses and software on the computer and that Melton agreed to members of the Geek Squad removing the viruses and spyware. The record does not indicate that Melton placed any limitations on the Geek Squad's access to the computer, inquired as to how the viruses and spy-ware would be removed, or inquired as to whether any individual files would be accessed. Additionally, Melton had not deleted those specific files before he turned the computer over to members of the Geek Squad. Finally, Melton did not make any attempt to put a password lock on any of the individual files containing child pornography. See Signorelli v. State, (No. 09-06-450 CR, Jan. 16, 2008) (Tex. Ct.App. — Beaumont 2007) (not reported in S.W.3d) (holding that, "[b]y failing to restrict the repairman's access to the files or folders at issue and by failing to password-protect them, Signorelli assumed the risk that the repairman would access them in the general course of repairs"). Based on the specific facts of this case, Melton relinquished any reasonable expectation of privacy in the files containing child pornography when he exposed the members of the Geek Squad to those files. Because he did not retain a privacy interest in those files, the officers did not violate Fourth Amendment principles when they viewed the contents of any of those files, regardless of whether the officers exceeded the scope of the search conducted by members of the Geek Squad.

Even if we were to find that Melton did not relinquish all expectations of privacy by merely turning the computer over to members of the Geek Squad, we next determine whether any expectation of privacy he retained in the files was an expectation that society is prepared to consider reasonable. In this case, law enforcement officers had been contacted by Best Buy employees regarding child pornography on Melton's computer. When the officers first arrived at the store, employees of Best Buy showed them the filenames of the questionable files. Those filenames were extremely explicit and were highly suggestive of child pornography. Also, Sellers testified about some terms that are commonly used when searching for child pornography, and we note that some of those terms were contained in some of the filenames on Melton's computer. It is undisputed that the officers were properly in the presence of the computer at that time and that the officers were properly looking at the filenames found by Best Buy employees. Therefore, the question in this case is not whether society would generally find an expectation of privacy in computer files to be reasonable. Rather, the question is whether, at the time law enforcement officers were at the Best Buy store, an expectation of privacy in files with explicit names that suggested that they contained child pornography was an expectation that society is prepared to consider reasonable.

In United States v. Jacobsen, 466 U.S. 109, 122-23, 113 104 S.Ct. 1652, 1661-62, 80 L.Ed.2d 85 (1984), the United States Supreme Court addressed a similar issue as follows:

"The question remains whether the additional intrusion occasioned by the field test, which had not been conducted by the Federal Express agents and therefore exceeded the scope of the private search, was an unlawful `search' or `seizure' within the meaning of the Fourth Amendment.

"The field test at issue could disclose only one fact previously unknown to the agent — whether or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or talcum powder. We must first determine whether this can be considered a `search' subject to the Fourth Amendment — did it infringe an expectation of privacy that society is prepared to consider reasonable?

"The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities. Indeed, this distinction underlies the rule that Government may utilize information voluntarily disclosed to a governmental informant, despite the criminal's reasonable expectation that his associates would not disclose confidential information to the authorities. See United States v. White, 401 U.S. 745, 751-752, 91 S.Ct. 1122, 1125-1126, 28 L.Ed.2d 453 (1971) (plurality opinion).

"A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative — merely disclosing that the substance is something other than cocaine — such a result reveals nothing of special interest. Congress has decided — and there is no question about its power to do so — to treat the interest in `privately' possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably `private' fact, compromises no legitimate privacy interest."

In this case, after being contacted by Geek Squad employees and viewing filenames that appeared to indicate that the files contained child pornography, the officers opened the file or files in question to determine whether they actually contained child pornography. A person does not have a constitutional right to possess child pornography in his home. See Perry v. State, 5( 58 So.2d 339 (Ala.Crim.App. 1990). Also, in Ex parte Felton, 526 So.2d 638 (Ala. 1988), the Alabama Supreme Court rejected a challenge to the constitutionality of Alabama's Child Pornography Statute, § 13A-12-192, Ala. Code 1975, stating:

"As pointed out in the opinion of the Court of Criminal Appeals, the Supreme Court of Ohio, in State v. Meadows, 28 Ohio St.3d 43, 503 N.E.2d 697 (1986), was confronted with the same issue presented here; that court held that an Ohio statute, which criminalized the knowing, private possession of materials that showed a minor participating or engaging in sexual activity, masturbation, or bestiality, did not violate the First Amendment to the Constitution of the United States, as made applicable to the states by reason of the Fourteenth Amendment.

"In Meadows, Chief Justice Celebrezze, writing for a majority of the Court, stated:

"`. . . .

"`To aid in our understanding of the state's impetus for the eradication of child pornography through the banning of its possession, as well as the competing interests involved, we turn to the more recent Supreme Court pronouncement in New York v. Ferber (1982), 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113. Against a backdrop of public indignation over the proliferation of child pornography, the Ferber court defined a new category of un-protected speech. In contrast to Stanley, Ferber dealt specifically with child pornography, not obscenity involving only adults, and upheld the constitutionality of a criminal statute outlawing the promotion of sexual performances by minors through the distribution of material depicting such performances. As such, "the Court unanimously upheld a New York criminal statute that bans the distribution of nonobscene material depicting sexual conduct by children." The decision essentially holds that states can constitutionally define the visual depiction of sexual conduct by children as obscenity without having to satisfy the threshold constitutional test for determining whether the material is obscene. The court ruled that the state's "compelling" interest in eliminating child pornography was sufficiently great to allow the states to bypass the test for adult obscenity stated in Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. Henceforth, states may automatically declare such visual depictions of sexual conduct by minors to be obscene and, as such, unprotected by the First Amendment. The Ferber court did not consider the propriety of state criminal sanctions concerning the final stage of the child pornography cycle, i.e., private possession. Nevertheless, the decision does touch on the competing interests involved in this case, [and] the court's discussion of the state's goals is instructive. In recognizing New York's "compelling" interest of safeguarding the physical and mental well-being of its children, the court explained that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." Id. 458 U.S. at 757, 102 S.Ct. at 3355.

"`In this vein, the Ferber court set forth a number of important and legitimate state objectives accomplished by the eradication of child pornography. For instance, the court observed that "[t]he legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of porno graphic materials is harmful to the physiological, emotional and mental health of the child." Id. at 758, 102 S.Ct. at 3355. The Ferber court found that the existence of photographs "depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled." Id. at 759, 102 S.Ct. at 3355.

"`The court also discerned that state efforts directed at the banning of production would not adequately solve the dilemma. The hidden reality of the child pornography industry makes it "difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce. . . ." Id. at 759-760, 102 S.Ct. at 3356. In this regard, we note that the possessor's desire to maintain depictions of child abuse also "provide[s] an economic motive for and . . . [is] thus an integral part of the production of such materials, an activity illegal throughout the Nation." Id. at 761, 102 S.Ct. at 3356. A flourishing home market for such abusive materials will help guarantee that there will be additional victimization of children. Cf. id. at 761-762, fn. 13, 102 S.Ct. at 3357, n. 13.

"`Against these substantial overriding interests we believe that, like the promotion stage of the child pornography cycle addressed in Ferber, the value of permitting possession of "photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis." Id. at 762, 102 S.Ct. at 3357.

"`Unlike the obscene materials considered in Stanley, Miller [v. California, 413 U.S. 15, 93 S.Ct. 2607, 413 U.S. 15 (1973)], et al., child pornography involves, by its nature, the physical, mental and sexual abuse, seduction and harmful exploitation of children. The depictions ought to be banned by the state are but memorializations of cruel mistreatment and unlawful conduct. Additionally, such material would continue to exploit and victimize the children shown by haunting them in the future. Ferber at 759, fn. 10, 102 S.Ct. at 3355, fn. 10. We believe the interest of the state in protecting the privacy, health, emotional welfare and well-rounded growth of its young citizens, together with its undeniable interest of safeguarding the future of society as a whole, comprise exactly the type of "compelling reasons" justifying a "very limited" First Amendment intrusion envisioned by the Stanley court. At the same time, the cost to the individual possessor's right of free speech, privacy and thought, caused by the state's banning of visual mementos from an episode of sexual abuse of a child, is slight. Moreover, the content value of such material is trifling and alternative means of simulation exist.'

"Based upon the reasoning in Meadows, we are of the opinion that the judgment of the court of Criminal Appeals is due to be affirmed. The state's interest in protecting the privacy, health, emotional welfare, and well-rounded growth of its citizens who are `under the age of 17 years,' § 13A-12-192(b), together with its interest in safeguarding the future of society as a whole, are the type of `compelling reasons' justifying a ` "very limited" First Amendment intrusion envisioned by the Stanley [v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969),] Court.' [ State v.] Meadows [, 28 Ohio St.3d 43, 503 N.E.2d 697 (1986)]."

Based on the purpose and goals underlying the statutes criminalizing the possession of child pornography, it is clear that, at the point when officers were looking at the filenames on the computer, any expectation of privacy in files that had names that were highly suggestive of child pornography was not an expectation that society is prepared to recognize as reasonable. Also, Sellers testified that, if the files had contained adult pornography rather than child pornography, they would have closed the files and left. Therefore, any intrusion into potentially private matters would have been limited. Because there was no expectation of privacy that society was prepared to recognize as reasonable at the time officers viewed the names of the files, officers did not violate Fourth Amendment principles by viewing the contents of any of the files.

For these reasons, the trial court properly denied Melton's motion to suppress.

III.

Melton further argues that the trial court erroneously granted the State's motion to amend the indictment against him. The original indictment alleged that he

"did knowingly possess obscene matter containing a visual reproduction of a person under the age of 17 years engaged in an act of sadomasochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct, to-wit: numerous pictures of children and numerous videos of children, in violation of Section 13A-12-192(b) of the Code of Alabama, against the peace and dignity of the State of Alabama."

(C.R. 22.) Before trial, the State filed a motion to amend the indictment to include the allegation "that the alleged crime of Possession of Obscene Matter did occur on or about July 21, 2004 through September 8, 2005." (C.R. 55.) The trial court granted the motion to amend over Melton's objection.

"The court may permit a charge to be amended without the defendant's consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced."

Rule 13.5(a), Ala. R.Crim. P.

"`The element of prejudice to the "substantial rights of the defendant" is usually interpreted as requiring some showing of surprise which will interfere with the defendant's presentation at trial.' [2] LaFave Israel, Criminal Procedure § 19.2(g) at 462 [1934]."

Pace v. State, 652 So.2d 321, 327 (Ala. Crim.App. 1994).

In this case, the amendment of the indictment did not result in an additional or different offense being charged. Further, other than general allegations, Melton has not shown that the amendment prejudiced his substantial rights. Therefore, he is not entitled to relief as to this claim.

Although Melton makes additional assertions in his brief to this court, "`"[t]his court is bound by the record and not by allegations or arguments in brief reciting matters not disclosed by the record." Moore v. State, 457 So.2d 981, 989 (Ala.Cr.App. 1984), cert. denied, 470 U.S. 1053, 105 S.Ct. 1757, 84 L.Ed.2d 820 (1985).' Garnett v. State, 555 So.2d 1153 (Ala.Crim.App. 1989)." Similton v. State, 672 So.2d 1363, 1366 (Ala.Crim.App. 1995). Therefore, we will not consider those assertions.

IV.

Finally, Melton argues that the State did not present sufficient evidence to support his conviction. Although he couches his argument in terms of the sufficiency of the evidence, his contentions actually address only the weight of the evidence.

"`"[T]he 'weight of the evidence' refers to `a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.'" Tibbs v. Florida, 457 U.S. [31] at 37-38 [ 102 S.Ct. [2211] at 2216] [1982] (emphasis added).'"

Zumbado v. State, 615 So.2d 1223, 1240 (Ala.Crim.App. 1993) (quoting Johnson v. State, 555 So.2d 818, 820 (Ala.Crim.App. 1989)).

"The issue of the weight of the evidence is preserved by a motion for a new trial, stating `that the verdict is contrary to law or the weight of the evidence.' See [Ala.] R. Cr. P. 24.1(c)(1)."

Zumbado, 615 So.2d at 1241. Melton did not file a motion for a new trial challenging the weight of the evidence. Therefore, his argument is not properly before this court.

For the above-stated reasons, we affirm the trial court's judgment.

AFFIRMED.

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.