Collins v. State

• Decision Date: 20 November 1981
• Docket Number: No. 62697,62697
• Citation: 160 Ga.App. 680,288 S.E.2d 43
• Parties: COLLINS v. The STATE.
• Court: Georgia Court of Appeals

Page 43

288 S.E.2d 43

160 Ga.App. 680

COLLINS v. The STATE.

No. 62697.

Court of Appeals of Georgia.

Nov. 20, 1981.

Rehearing Denied Dec. 8, 1981.

Fred M. Hasty, Macon, for appellant.

Carl A. Veline, Sol., Warner Robins, for appellee.

DEEN, Presiding Judge.

Thomas C. Collins brings this appeal following his conviction for public indecency and the denial of his motion for a new trial asserting the general grounds. Held :

1. The evidence showed that the defendant was sunbathing in the nude on his back porch wearing only white socks and black shoes when he was observed by his neighbor's twelve-year old daughter who was playing with her rabbit in her back yard. She observed his legs sticking off the porch when she first entered the yard and then after she reached the rabbit cage she heard a tapping, looked up and saw him standing up either on the porch or a nearby portion of his yard. (She was unable to determine which because the defendant's automobile was parked near the porch.) She called her parents at work and her father returned home. He summoned a police officer and photographed the defendant who was lying with his legs and buttocks exposed to view from the adjoining yard. After the policeman arrived, he viewed the defendant and called to him and told him to put some clothing on, the defendant stood up, stretched and exposed his entire nude body before going into his house. The girl testified that she had seen the defendant nude on his porch on several previous occasions.

Code Ann. § 26-2011 provides: "A person commits public indecency when he performs any of the following acts in a public place ... (c) A lewd appearance in a state of partial or complete nudity." A public place is defined in Code Ann. § 26-401(m) as "... any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor's family or household" The defendant admitted that he was in the habit of sunbathing on his back porch in the nude or wearing a bikini bathing suit and that he could see into his neighbor's yard from his porch, but that he thought his automobile blocked the view onto his porch. From the evidence presented at trial, it clearly did not. We believe that from this evidence a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Driggers v. State, 244 Ga. 160, 259 S.E.2d 133 (1979).

2. The meaning of the word "lewd" contained in the statute must be next addressed. Black's Law Dictionary, p. 1052 (4th Ed., 1968) defines it as including "obscene." It signifies that form of immorality which has relation to moral impurity. In Re Tahiti Bar, Inc., 142 A.2d 491, 492, 186 Pa.Super. 214, uses word "lewd" as synonym for "obscene" and vice versa.

Appellants urge applicability of two Florida cases. In Chesebrough v. State (Fla.), 255 So.2d 675, 676: "Sexual intercourse between husband and wife in presence of child under 14 years of age for the purpose of demonstrating to such child the method of procreation of the human race was a lewd and lacivious act in violation of statute." One justice dissented in this case stating that "Had the act not been committed 'all in the family' but out in the open, public view, I would agree it violated the statute." His reason expressed the idea, "They could give their own son mature understanding and instruction in the biological facts of procreation in the privacy of their home." Appellant argues that in the case sub judice we do not have sexual copulation, therefore, the acts in evidence don't add up to "lewd." In Duvallon v. State, 404 So.2d 196 (1981, Fla. First Dist. Court of Appeals) (not yet in published reports), a lady in the nude, except for a 44.5"' X 28"' piece of cardboard suspended by a cord around her neck, while picketing in front of the Florida State Capitol was acquitted of lewd exposure of her sexual organs when the arresting officer testified the placard allowed only exposure of the defendant's bare backside and the sides of her breasts. There was an apparent fatal variance in the charged offense and evidence introduced in the latter case and we disagree with the assertion that sexual copulation is always necessary in the interpretation of lewd acts as to the former. The term "lewdness," in Bl. Comm., c. 4, p. 64, does not mean illicit intercourse, but gross indecency, as if one exposed himself naked in the streets. Brooks v. State, 10 Tenn. (2 Yerg.) 482, 483, citing Jac.Law Dict. Common law "lewdness" includes any gross indecency so notorious as to tend to corrupt community morals. Abbott v. State, 163 Tenn. 384, 43 S.W.2d 211, 212. The intentional exposure of one's private parts to public view is a "lewd act" within meaning of open lewdness statute. State v. Luhnow, Hawaii, 597 P.2d 15. Statute prohibiting lewd and dissolute, conduct in a place exposed to public view is not unconstitutionally vague; the words "lewd and dissolute" can be equated with the constitutionally sufficient term "obscene." People v. Rodrigues, 133 Cal.Rptr. 765, 766, 63 C.A.3d Supp. 1. "Lewdly," as...