Chubb v. State

• Decision Date: 08 September 1994
• Docket Number: No. 49S02-9409-CR-855,49S02-9409-CR-855
• Citation: 640 N.E.2d 44
• Parties: Larry CHUBB, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 44

640 N.E.2d 44

Larry CHUBB, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S02-9409-CR-855.

Supreme Court of Indiana.

Sept. 8, 1994.

As Corrected Sept. 15, 1994.

Rehearing Denied Dec. 15, 1994.

David L. Rimstidt, Rimstidt, Yackey & Ladd, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

DICKSON, Justice.

Charged with appearing in a public place in a state of nudity and there fondling the genitals of another, the defendant, Larry Chubb, was convicted of public indecency, a class A misdemeanor. Ind.Code § 35-45-4-1. The Court of Appeals reversed, finding that the defendant's genital nudity inside a stall in a public restroom did not occur in a public place and that the police officer's fondling testimony was insufficient to support the conviction. Chubb v. State (1994), Ind.App., 627 N.E.2d 842. We grant the State's Petition To Transfer and affirm the conviction.

The defendant's appeal raises the following issues: (1) whether the charged conduct occurred in a public place; (2) whether reversal is required because of juror inattentiveness; (3) whether prosecutorial misconduct occurred during closing argument; and (4) whether the State improperly used peremptory challenges.

According to the evidence favorable to the judgment, on November 29, 1991, the defendant was in a public men's restroom in an Indianapolis shopping mall. Indianapolis Police Officer Walter Sanders entered the restroom and approached one of three urinals adjacent to three stalls with partitions and doors. The officer looked over the partition into the first stall, where the defendant lowered his pants, sat down, and began to masturbate. The officer left the restroom, briefly consulted with his partner, and then returned to the urinal next to the defendant's stall. After all of the other restroom occupants had left, the defendant stood up, reached over the partition, placed his arm around the officer and began to rub the officer's chest. The defendant then, continuing to masturbate, motioned for the officer to come around to the stall next to the defendant's stall. When the officer obliged, the defendant reached over the partition between the two stalls and began to fondle the officer's genitals. The officer promptly arrested the defendant.

1. Public Bathroom Stall As "Public Place"

The defendant contends that the trial court erred by denying his motion for judgment on the evidence at the conclusion of the State's case. He asserts that because his conduct occurred in a private stall with the door secured, he was not in a "public place" as required for the offense of public indecency. ¹ The State responds that the bathroom stall, even with its door shut and secured, was a public place because its partitions were not of sufficient height to prevent viewing by others, and that, even if deemed a private place, the defendant's actions transformed the stall into a public place when the defendant leaned over the partition into the adjoining stall where the officer stood.

Because the defendant presented evidence on his own behalf following the trial court's denial of his motion for judgment on the evidence at the close of the State's case in chief, we will not review such ruling but rather will treat the issue as one of general insufficiency of evidence. Kuchel v. State (1991), Ind., 570 N.E.2d 910, 915; Moss v. State (1976), 168 Ind.App. 605, 612-13, 344 N.E.2d 859, 863. See also Harris v. State (1981), Ind.App., 416 N.E.2d 902, 905. In reviewing for sufficiency of evidence, we consider only the probative evidence and reasonable inferences supporting the verdict, disregarding credibility and weight, and will affirm the conviction if a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Loyd v. State (1982), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

The offense of public indecency requires the commission of proscribed conduct "in a public place." Ind.Code § 35-45-4-1(a). We agree with the discussion and conclusion of our Court of Appeals that a restroom stall, enclosed by partitions of sufficient height so that users' conduct or condition is not visible to the casual public eye, is not a public place. Chubb, 627 N.E.2d at 844. This is also consistent with the rule that criminal statutes must be narrowly construed. See, e.g., Utley v. State (1972), 258 Ind. 443, 446, 281 N.E.2d 888, 890; Coleman v. State (1990), 253 Ind. 627, 631, 256 N.E.2d 389, 391. The defendant's genital nudity in the closed stall did not constitute public indecency. To hold otherwise would effectively render the ordinary use of a public restroom a crime.

However, the charging information, although asserting only one count and charging but a single offense, described more than a single act. ² It alleged not only genital nudity but also the fondling of another person's genitals. Officer Sanders testified that such act occurred while the defendant was reaching across the stall partition. Such conduct exceeded the bounds of the private area and thereby constituted criminal conduct in a public place. Thompson v. State (1985), Ind.App., 482 N.E.2d 1372, 1376. ³

Commenting generally upon the relative height of the defendant and the partition, the Court of Appeals opined that the charged conduct "did not occur in the manner described by the officer," Chubb, 627 N.E.2d at 844, and concluded that the determinative evidence was "so improbable as to be without probative value." Id. We disagree. The record contains a photographic exhibit which demonstrates that the top of the restroom stall partition reached a height only slightly above the defendant's armpits when he was standing flat-footed. Record at 303. Based on this exhibit, the jury could reasonably have found that, with effort, the defendant could have committed the act described by Officer Sanders. We find that the officer's testimony was not inherently improbable and that the evidence was sufficient to support the conviction.

2. Juror Inattentiveness

The defendant contends that he was denied a fair trial because one of the jurors slept through part of the court's final instructions, defense counsel's closing argument, and part of the testimony of one of the defense witnesses. This claim was not accompanied by a contemporaneous objection at trial but was presented in the defendant's motion to correct error, supported by an affidavit of a courtroom spectator. The factual substance of the affidavit consists of the following assertion:

I observed that one of the jurors was asleep during certain parts of the testimony, closing argument of counsel, and final instructions by the trial judge.

I informed counsel for the defendant of this fact following the return of the jury with its verdict.

Record at 25.

To prevail on this claim, the defendant must demonstrate two elements, the juror was actually inattentive and the juror's inattention resulted in actual prejudice. Whiting v. State (1987), Ind., 516 N.E.2d 1067, 1068.

The State asserts that these burdens were not met. First, it argues, one person's observation that a juror appeared to be sleeping does not necessarily establish whether the juror was actually asleep or merely pondering the evidence with his eyes closed. Second, the State contends that the affidavit fails to establish how long the juror slept or through which parts of the proceedings the juror slept. Thus, the State argues, the defendant failed to meet his burden of proving how he was prejudiced by the possibility of a sleeping juror.

Because the alleged juror inattentiveness was not contemporaneously brought to the trial court's attention, it is impossible to know whether the juror was actually sleeping, and the conclusory statement in the post-trial affidavit is not determinative. Furthermore, this Court has recognized that a juror's mere falling asleep for a short time does not necessarily constitute a sufficient cause for a new trial absent a convincing explanation as to why the alleged behavior deprived the defendant of his rights. Whiting, 516 N.E.2d at 1068; McClary v. State (1881), 75 Ind. 260, 265. The affidavit here fails to specify the identity or duration of the specific instructions, argument, or testimony missed. In the present case, the defendant has failed both to adequately establish juror inattentiveness and to convincingly demonstrate prejudice to his rights. We find no sufficient explanation to demonstrate deprivation of rights. There is no error on this issue.

3. Prosecutorial Misconduct

The defendant contends that the prosecutor's closing summation was improper. Part of defense counsel's final argument to the jury questioned the State's decision to present only one witness. In rebuttal argument, the State responded:

Where are the witnesses? Well, I have something to say, if those witnesses were important to the State's case to prove that Mr. Chubb was guilty, they'd have been here to testify to help support the case. They weren't needed. They are not here. But, if those witnesses were important to the defendant's case ... where are they?

Supplemental Record at 19. Defense counsel's immediate objection and motion for mistrial were overruled. Emphasizing that he bears no burden of proof at trial, the defendant argues that the prosecutor's response wrongly shifted the burden of proof from the State to the defendant, thereby constituting prosecutorial misconduct. To support his argument, the defendant seeks to distinguish Pettiford v. State (1987), Ind., 506 N.E.2d 1088, where we held that a similar impropriety in closing argument was de minimus and cured by the preliminary and final instructions which advised the jury that the defendant was not required to present any evidence or to prove his innocence. Id. at 1089-90. The defendant emphasizes that such...