Adims v. State

• Decision Date: 10 April 1984
• Docket Number: No. 3-983A319,3-983A319
• Citation: 461 N.E.2d 740
• Parties: Debbie ADIMS, Patricia Runkel, and Uscilla Smith, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 740

461 N.E.2d 740

Debbie ADIMS, Patricia Runkel, and Uscilla Smith Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-983A319.

Court of Appeals of Indiana Third District.

April 10, 1984.

Charles A. Asher, South Bend, for defendants-appellants.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Debbie Adims, Patricia Runkel, and Uscilla Smith were all found guilty of public nudity in violation of IND.CODE Sec. 35-45-4-1. The incidents precipitating the charges took place while the three were employed as dancers at an adult bookstore in South Bend, Indiana.

At the entrance to the bookstore a large sign advertised the adult entertainment within. Access to the store was restricted to persons over the age of 18. Inside the store were racks of magazines and to one side were eight booths. Each booth was approximately four feet by four feet in size and contained one chair. All eight booths had doors which could be locked and "in use" lights above the doors. Two kinds of "showings" were possible within the bookstore.

Six of the booths faced onto a small stage. A glass window in the booth permitted the occupant to see onto the stage. Until a customer deposited the required $.25 into a timing machine, lights in the booth shone on the glass, preventing a view of the stage. Once the money was deposited, the lights went out, allowing the viewer to see one or more female dancers in states of complete or partial nudity.

The second type of show was a so-called "private showing," where a customer would sit in a similarly small booth and, after depositing a certain number of quarters in a timing machine, see a nude or partially nude female performer in a private showing with a telephone hookup between the performer and the customer. The booths also contained boxes for tips.

On March 29, 1983, a police officer in plain clothes went into the bookstore, obtained quarters from the clerk, and entered one of the six booths described earlier. After depositing eight quarters, he observed two dancers, Debbie Adims and Patricia Runkel. Adims was completely nude and danced at a distance. Runkel, wearing a short, see-through negligee with the breast area cut out, danced close to the booth window and announced that private shows were held in booths seven and eight.

The police officer then went to booth number seven. Via a telephone conversation, he chose to view Runkel. He was instructed by her to place quarters in the timing machine to enable him to see her, which he did. After a brief viewing and discussion with Runkel, the police officer left the establishment.

Approximately two hours later, the police officer returned and entered a booth adjacent to the dance floor. This time he observed three female dancers. The two he had seen earlier had been joined by a third, Uscilla Smith, who was completely nude. Smith advertised the private shows on this occasion while squatting in front of the window to the officer's booth.

In challenging their convictions, the three appellants present the following issues:

(1) whether IND.CODE Sec. 35-45-4-1 is unconstitutional; and

(2) whether the evidence was sufficient to support a finding that the charged acts occurred in a public place.

IND.CODE Sec. 35-45-4-1 provides:

"Public indecency

Sec. 1. (a) A person who knowingly or intentionally, in a public place:

(1) engages in sexual intercourse;

(2) engages in deviate sexual conduct;

(3) appears in a state of nudity; or

(4) fondles the genitals of himself or another person;

commits public indecency, a Class A misdemeanor.

(b) 'Nudity' means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state."

The appellants argue that this statute violates their constitutional rights to free expression, due process of law, and equal protection. They are aware that IND.CODE Sec. 35-45-4-1 was previously declared to be constitutional by the Supreme Court of Indiana in State v. Baysinger, (1979) 272 Ind. 236, 397 N.E.2d 580. Yet appellants would have this Court hold otherwise.

The only real difference between the activity in Baysinger and that in the case now before us is that in Baysinger the activity occurred in bars while the activity we are to consider took place in an adult bookstore. Yet the decision in Baysinger did not rest on the State's interest in controlling alcoholic beverages.

Justice Pivarnik stated in Baysinger, supra, 272 Ind. at 247, 397 N.E.2d at 587:

"There is no right to appear nude in public. Rather, it may be constitutionally required to tolerate or to allow some nudity as a part of some larger form of expression meriting protection, when the communication of ideas is involved."

As in Baysinger, the appellants here made no hint of any expressive content in their behavior which elevated it to a level meriting constitutional protection. Therefore, we must decline appellants' invitation to overrule the Supreme Court of Indiana in this matter.

Appellants further argue that the evidence was insufficient to show that the acts with which they were charged took place in a public place within the meaning of IND.CODE Sec. 35-45-4-1. To support their argument, appellants cite this Court's opinion in Lasko v. State, (1980) Ind.App., 409 N.E.2d 1124. Lasko was a case involving a massage parlor. The Court in Lasko held that,

"[a] private locked room in which two adult consenting persons engage in promiscuous conduct is not a 'public place' within the meaning of the Public Indecency statute, Ind.Code Sec. 35-45-4-1." 409 N.E.2d at 1126.

However, the facts of the present case present somewhat of a hybrid situation. While the police officer and other patrons may have been in single little booths surrounding the common dance floor, the dancers were not performing for individual viewers. Concentration must be placed upon the circumstances surrounding the activity of the persons charged and in this case, the persons charged were performing for as many as six viewers at one time.

The Baysinger Court relied on the following definitions in its determination of what constituted a public place:

" 'Webster defines "public" as "open to common and general use, participation, or enjoyment" of the public. It has been held that the term "public place" as used in statutes pertaining to gambling includes any place which for the time being is made public by the assemblage of people who go there with or without invitation and without restraint. Roberts v. State, 1908, 4 Ga.App. 207, 60 S.E. 1082, 1085.

" 'A place may be accessible to the public for gambling notwithstanding that every person who desires is not permitted access thereto. Lockhart v. State, 1853, 10 Tex. 275, 276.

" 'It has also been held that in a case involving a prohibition law that by "public" is meant that the public is invited to come to the place and has access to it for the purpose within the scope of the business there maintained. Brooks v. State, 1916, 19 Ga.App. 3, 90 S.E. 989, 991.

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" 'From a consideration of the terms "accessible", "public", and "public place", as defined hereinabove, together with the purpose of the Act, we have concluded that the phrase "in any place accessible to the public" as used in Sec. 10-2330, supra, means any place where the public is invited and are free to go upon special or implied invitation--a place available to all or a certain segment of the public.' " 272 Ind. at 240-241, 397 N.E.2d at 583.

The common dance floor and surrounding booths which existed in the bookstore fall within the definition of public place adopted by the Supreme Court of Indiana in Baysinger, supra. The defendants do not contest the fact that they were performing in the nude. Since they were in a public place, all three were therefore properly found guilty of public nudity.

Arguably, the situation in which the private shows were conducted may more closely parallel the massage parlor situation which the Lasko Court held was not public. However, we need not decide that question. The charging...