Erhardt v. State

• Decision Date: 29 May 1984
• Docket Number: No. 4-882A239,4-882A239
• Parties: Ruth E. ERHARDT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1121

463 N.E.2d 1121

Ruth E. ERHARDT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-882A239.

Court of Appeals of Indiana,

Fourth District.

May 29, 1984.

Kenneth R. Scheibenberger, Lebamoff & Associates, Fort Wayne, for appellant.

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

MILLER, Judge.

Defendant-appellant Ruth E. Erhardt was convicted of public indecency, a class A misdemeanor, (IND.CODE 35-45-4-1). ¹ She seeks reversal on appeal claiming:

1. the evidence was insufficient to sustain the court's judgment, and

2. nudity alone cannot constitutionally be the basis for a criminal conviction.

Because we conclude there was insufficient evidence to support the conviction, we reverse.

FACTS

Erhardt, a waitress, was one of eight contestants in a "Miss Erotica of Fort Wayne" contest held at the Cinema Blue Theatre in that city on February 25, 1982. The competition, which was open to spectators 18 years of age or older who paid an admission fee, consisted of several parts, including a question-and-answer segment, a bathing suit contest and a dance competition. Erhardt was arrested following the last-mentioned portion of the competition by Fort Wayne Police Officer Dennis Anspach, who attended the event after seeing an advertisement in the local newspaper. According to testimony from Anspach and fellow investigating officer Rick Layton, Erhardt danced to two songs. During the first, she wore a short negligee and panties. For the second number, Erhardt removed these articles of clothing and completed her performance wearing a g-string and scotch tape criss-crossed over her nipples.

DECISION

At the outset we concede the evidence presented by the police officers, and apparently accepted by the court as to Ms. Erhardt's appearance, established that during her dance she exposed her buttocks and breasts as prohibited by our statute. However, and most significantly, the officers described her performance as dancing, without further elucidation. There was no attempt to prove or even suggest that the dance was lewd or obscene or merely a pretense for displaying her body.

We believe that, under the facts of this case, Erhardt is correct in her argument that the evidence presented to the trial court was insufficient to convict her of public indecency under IND.CODE 35-45-4-1. While the public indecency law appears to proscribe any nude appearance, our supreme court has indicated the statute has a narrower scope and serves to criminalize only certain public conduct which is not primarily expressive in nature and is therefore unprotected by the First Amendment. It does not apply to activities such as the theatrical appearance involved herein, which may not be prohibited absent a finding of obscenity.

This restrictive view of IC 35-45-4-1 was emphasized in State v. Baysinger, (1979) Ind., 397 N.E.2d 580 (Hunter and DeBruler, JJ. dissenting), where our supreme court upheld the statute against a challenge that it was unconstitutionally overbroad. Justice Pivarnik, writing for the Baysinger majority, indicated that public nudity, in and of itself, is not entitled to constitutional protection and could therefore be prohibited without a finding of obscenity. However, he cautioned that "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." Id. at 587. Justice Pivarnik indicated the public indecency statute would not apply to proscribe print and video materials and live performances which, by reason of their content, amounted to more than mere nudity. In those instances, Justice Pivarnik observed the applicable law is contained in IND.CODE 35-30-10.1-1, et seq., which prohibits, among other things, obscene performances, and sets forth criteria to aid in the determination whether a particular matter of performance is obscene. Justice Pivarnik noted:

"[T]he application of obscenity considerations to books, films and certain types of live musical or theatrical performances or production seems more appropriate. In those settings, nudity, which may or may not be obscene, may be judged as are all other components of such materials or performances, in the context on which it is presented. There is sufficient content to enable courts to determine whether or not such nudity is obscene and therefore prohibited or whether, taken in its context, it is not obscene and requires protection as expression." (Emphasis added.)

State v. Baysinger, supra at 586.

The Baysinger court found that IC 35-45-4-1 was not unconstitutionally overbroad because it was not aimed at nudity which involved First Amendment rights. Justice Pivarnik instructed:

"Our case law has restricted and defined the type of conduct which has been prosecuted under public indecency statutes. Our statutes provide for procedures and standards to be used in a determination of obscenity when required for different materials or performances. Under these facts the argument that Ind.Code Sec. 35-45-4-1 (Burns 1978) is overbroad must fail."

The concept that public nudity may be permissible in some contexts as a protected expression under the First Amendment was more recently discussed in Sedelbauer v. State, (1981) Ind., 428 N.E.2d 206 (Hunter, J. concurring in result only; DeBruler, J. dissenting), wherein Chief Justice Givan, in approving as proper and lawful the appearance of a nude art model, remarked:

"The First Amendment guarantees each citizen the freedom of speech and publication to accomplish these ends. [instructing children and adults by explicitly depicting the functions of sexual arousal and intercourse itself, and, within the definitions of art, depicting the naked human in various postures calculated to be pleasing to the viewer and to possess cultural value. Id. at 208.] This freedom, however, does not give license for the utterance or publication of any and every conceiveable variation of the subject matter, if that utterance or publication impinges upon the freedom of others to enjoy life in an acceptable manner according to the standards of the community.

"It is not the subject matter that is obscene in any situation, it is the manner in which the subject matter is presented that constitutes obscenity. For instance, a nude model may be presented to an art class to aid in the instruction of the students as to how to depict the nude human form. The model may be presented in a wholly acceptable manner and not be considered as lewd or obscene. However, one could take that same model and by a slight change in pose and setting transform that same person into a lewd and obscene object. The difference would be readily discernible to any member of society." (Emphasis added.)

Id. at 208. Thus, our supreme court in Baysinger and again in Sedelbauer has recognized that not all nudity or exposure would be per se unlawful. Likewise, in Schad v. Borough of Mount Ephraim, (1981) 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671, wherein a zoning ordinance excluded from the Borough all live entertainment, including nude dancing, the United States Supreme Court instructed:

"Entertainment, as well as political and ideological speech, is protected: motion pictures, programs broadcast by radio and television and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee ... Nor may an entertainment program be prohibited solely because it displays the nude human figure. 'Nudity alone' does not place otherwise protected material outside the mantle of the First Amendment.... Furthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation." (Citations omitted.)

Id. at 65-66, 101 S.Ct. at 2181. Later in its opinion, the Court concluded "[h]ere the Borough totally excludes all live entertainment, including nonobscene nude dancing that is otherwise protected by the First Amendment." Id. at 76, 101 S.Ct. at 2186.

Further, in Doran v. Salem, Inn, Inc., (1975) 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648, a preliminary injunction was issued to enjoin an enforcement of an ordinance of the town of North Hempstead, New York, which banned topless performances in all public places. The Supreme Court sustained the preliminary injunction. In so doing, the Court first distinguished California v. LaRue, (1972) 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (wherein the Supreme Court upheld the regulation on nude entertainment promulgated by the California Alcoholic Beverage Control Board) stating "that the broad power of the State to regulate the sale of liquor, conferred by the Twenty-First Amendment, outweighed any First Amendment interest in nude dancing." 422 U.S. at 932, ² 95 S.Ct. at 2568. In contrast, the Court noted, the North Hempstead ordinance applies "not merely to places which serve liquor, but to many other establishments as well." Id. at 933, 95 S.Ct. at 2569. Justice Rehnquist, speaking for the majority, concluded that the town did not "raise any other legitimate state interest [beyond the interest in regulating the sale of alcohol] that would counterbalance the constitutional protection presumptively afforded to activities which are plainly within the reach [of the ordinance]." Id. at 934, 95 S.Ct. at 2569. (Emphasis added.)

In making our decision, we also take note of Adims v. State, (1984) Ind.App., 461 N.E.2d 740 (Garrard, J. concurring) a recent opinion wherein this court held that girls dancing nude or partially nude in an adult bookstore atmosphere where men dropped $.25 into a timing machine to watch them perform was proscribed by our public nudity statute inasmuch as the dancing took place in a public place. The majority did not discuss the effect of Schad v. Borough of Mount Ephraim, supra, although Judge Garrard in his concurring opinion,...