Erhardt v. State
| Decision Date | 20 September 1984 |
| Docket Number | No. 984,984 |
| Citation | 468 N.E.2d 224 |
| Parties | Ruth E. ERHARDT, Appellant, v. STATE of Indiana, Appellee. S 358. |
| Court | Indiana Supreme Court |
Kenneth R. Scheibenberger, Lebamoff & Associates, Fort Wayne, for appellant.
Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.
CRIMINAL PETITION FOR TRANSFER
Appellant, Ruth E. Erhardt, was convicted of Public Indecency, a class A misdemeanor. Ind.Code Sec. 35-45-4-1.
The Court of Appeals reversed her conviction on the ground that there was a lack of evidence to sustain the judgment of the trial court, in that there was no showing her conduct was lewd although it was admitted that she was dancing in the nude under the definition of the statute. Judge Conover wrote a dissenting opinion in the Court of Appeals which is correct in every respect. The opinions of the Court of Appeals are reported at 463 N.E.2d 1121.
The pertinent part of the statute reads as follows:
"Sec. 1. (a) A person who knowingly or intentionally, in a public place: ...
(3) appears in a state of nudity; ... 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, ...." Ind.Code Sec. 35-45-4-1
The evidence presented by the State in the trial court is that appellant danced in the nude with her nipples covered by transparent tape and with her buttocks exposed. This evidence brings her conduct squarely within the prohibitions of the statute. This Court has previously held the statute to be constitutional. State v. Basinger, (1979) 272 Ind. 236, 397 N.E.2d 580 (Hunter and DeBruler, JJ., dissenting).
It is not for the Court of Appeals or this Court to say what is or is not lewd. That is the exclusive prerogative of the legislature. They have spoken through the statute. The appellant violated the statute. The conviction must stand.
The opinion of the Court of Appeals is set aside and the decision of the trial court is affirmed.
I must respectfully dissent to the majority opinion in this case. I fully agree with Justice DeBruler that the general rule regarding the timing of a constitutional challenge of a statute defining a crime should be subject to an exception when the criminal statute is challenged as invalid upon its face.
This being the case, I conclude that a public indecency statute which prohibits nudity in any public place is unconstitutionally overbroad. My reasons for so concluding have already been articulated in State v. Baysinger, (1979) 272 Ind. 236, 397 N.E.2d 580 (Hunter and DeBruler, JJ., dissenting). Moreover, the position taken in dissent now finds firm support in Schad v. Borough of Mount Ephraim, (1981) 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671, where Justice White, for the Court, reasoned that nude dancing is entitled to some First Amendment protection (citing Doran v. Salem Inn, Inc., (1975) 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648).
The purposes served by restricting the constitutional challenge of a statute defining a crime, to the motion to dismiss and to a first adjudication at the trial level, are to grant the accused a fair opportunity to present the issue, and to provide the State with an ample opportunity to defend the statute, and to give the courts the best possible foundation for addressing so important an issue. As a general rule, I would agree with the Court of Appeals that the failure of the accused to raise this constitutional issue in a proper procedural mode in the trial court should result in the refusal of an appellate court to address the issue on its merits on appeal. Cf. Dissenting opinion of Judge Conover in this case and Marchand v. State, (1982) Ind.App., 435...
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Barnes v. Glen Theatre, Inc
...absent a finding of obscenity," in a case involving a partially nude dance in the "Miss Erotica of Fort Wayne" contest. Erhardt v. State, 468 N.E.2d 224 (Ind.1984). The Indiana Supreme Court did not discuss the constitutional issues beyond a cursory comment that the statute had been upheld ......
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Miller v. Civil City of South Bend
...other plaintiff, Glen Theatres, owns a theater rather than a bar. The statute has been held to apply to theaters as well. Erhardt v. State, 468 N.E.2d 224 (Ind.1984), reversing 463 N.E.2d 1121 (Ind.App.1984). If it were confined to establishments where liquor is sold, Indiana could appeal t......
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Glen Theatre v. Civil City of South Bend
...of the Indiana courts subsequent to State v. Baysinger have not narrowed the construction of I.C. § 35-45-4-1. See Erhardt v. State, ___ Ind. ___, 468 N.E.2d 224 (1984); Adams v. State, ___ Ind.App. ___, 461 N.E.2d 740 (1984). Accordingly, this court finds that plaintiffs have shown that th......
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Glen Theatre, Inc. v. Civil City of South Bend
...was set forth clearly in two Supreme Court of Indiana cases, State of Indiana v. Baysinger, 397 N.E.2d 580 (Ind.1980) and Erhardt v. State, 468 N.E.2d 224 (Ind.1984). The Erhardt case involved the same statute with which this court is dealing, I.C. § 35-45-4-1. Ruth Erhardt entered a contes......