Lasko v. State, No. 2-979A278

Docket NºNo. 2-979A278
Citation409 N.E.2d 1124
Case DateSeptember 09, 1980
CourtCourt of Appeals of Indiana

Page 1124

409 N.E.2d 1124
Barbara LASKO, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 2-979A278.
Court of Appeals of Indiana, Second District.
Sept. 9, 1980.

Page 1125

Thomas M. Barr, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant Barbara Lasko (Lasko) appeals her conviction of public indecency, 1 alleging the evidence was not sufficient to support her conviction because the conduct for which she was charged did not occur in a "public place" within the meaning of the statute.

We reverse.

FACTS

The facts most favorable to the State are:

On March 7, 1978, a vice squad officer (the Officer) entered a massage parlor located in Indianapolis. In the massage parlor's reception area, he requested that Lasko give him a massage. She then escorted him to a separate room, where she instructed him to remove his clothing. Lasko left the room while the Officer removed his clothing. When she returned, she closed and locked the door. 2

The Officer then asked Lasko to take off her clothing. She told him that would cost him an additional $10.00, which he paid her. She disrobed and, while nude, massaged him, and fondled his genitals. Subsequent to the fondling, he arrested her for public indecency and prostitution. Lasko was found not guilty of the latter charge.

After a trial without a jury, Lasko was convicted of public indecency. The court specifically found that a "massage parlor" is a "public place" within the meaning of Ind.Code § 35-45-4-1.

ISSUE

On appeal, Lasko presents one issue:

Was the room in which she massaged the Officer a "public place" within the meaning of the statute on public indecency?

DECISION

PARTIES' CONTENTIONS

Lasko contends that the room in which the act occurred was a private area, not open to the public in the same sense as other areas of the massage parlor might be, and thus, the evidence did not support her conviction.

The State counters that a "public place" is any place to which the public have access as of right or by the invitation or permission of the owner, 3 and that the massage parlor here was such a place.

CONCLUSION

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 § 35-45-4-1.

The statute under which Lasko was convicted was recently upheld as constitutional by the Indiana Supreme Court in State v.

Page 1127

Baysinger (1979), Ind., 397 N.E.2d 580. Although the issue here presented is not identical, the language of that case is controlling. We also conclude that our reversal here is mandated not only by the holding in Baysinger, but also by well established rules of statutory construction.

The Public Indecency statute, as amended, provides:

(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.

Ind.Code § 35-45-4-1. (Emphasis added.)

Criminal statutes are to be strictly construed. Murray v. State (1957), 236 Ind. 688, 143 N.E.2d 290; Simmons v. State (1955), 234 Ind. 489, 129 N.E.2d 121; McCormick v. State (1978), Ind.App., 382 N.E.2d 172; Renfroe v. State (1974), 161 Ind.App. 519, 316 N.E.2d 405. They are to be construed against the State. State v. Gilbert (1966), 247 Ind. 544, 219 N.E.2d 892. See generally, 26 I.L.E., Statutes § 175. The object of this rule of interpretation is to establish a rule of certainty for the protection of the individual. Caudill v. State (1946), 224 Ind. 531, 69 N.E.2d 549. Such a rule is also in keeping with the presumption of innocence. In order for an act to be within a penal statute, it must be clearly within both the spirit and the letter of the statute. Pontarelli v. State (1931), 203 Ind. 146, 176 N.E. 696; State v. Lowry (1906), 166 Ind. 372, 77 N.E. 728.

The rule does not require that statutory construction be strained to the point of defeating the intent of the legislature. State v. Mears (1938), 213 Ind. 257, 12 N.E.2d 343; Boyer v. State (1908), 169 Ind. 691, 83 N.E. 350. On the contrary, the statute must be given a reasonable construction so as to give effect, if possible, to the expressed legislative intent. Simmons, supra; Short v. State (1964), 234 Ind. 17, 122 N.E.2d 82; Morris v. State (1949), 227 Ind. 630, 88 N.E.2d 328.

Our task, then, is to discern the legislature's intent in enacting such a statute. Obviously, the term "public place" could be given a broad reading by the courts; our Supreme Court in Baysinger, however, concluded that our prior case law has adequately defined the term.

Baysinger dealt with nude dancing and appearances in taverns and bars. Concluding that this constituted public indecency, the court stated:

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.

"Accessible to the public" as used in the Act here is question has not been defined by either of the courts of appeal

Page 1128

of this State, nor have we been able to find definition by the courts in other jurisdictions.

From a consideration of the terms "accessible", "public", and "public place", as defined hereinabove, together with the purpose of the...

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12 practice notes
  • Barnes v. Glen Theatre, Inc, No. 90-26
    • United States
    • United States Supreme Court
    • June 21, 1991
    ...Adims v. State, 461 N.E.2d 740, 741-742 (Ind.App.1984); State v. Elliott, 435 N.E.2d 302, 304 (Ind.App.1982); Lasko v. State, 409 N.E.2d 1124, 1126 (Ind.App.1980).2 The dissent confidently asserts, post, at 590-591, that the purpose of restricting nudity in public places in general is to pr......
  • Tun ex rel. Tun v. Fort Wayne Community Schools, No. 1:03CV217.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • July 22, 2004
    ...is not visible to the public eye," meaning that the stall "is not a public place." Id. at 47; see also Lasko v. State, 409 N.E.2d 1124 (Ind.App.1980) (holding that a locked room in massage parlor was not a public place because it was not reasonably foreseeable that the genera......
  • Joy v. State, No. 1-783A228
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1984
    ...the intention of the legislature is defeated. State v. Bigbee, (1973) 260 Ind. 90, 292 N.E.2d 609, 611; Lasko v. State, (1980) Ind.App., 409 N.E.2d 1124, 1127; Hanic v. State, (1980) Ind.App., 406 N.E.2d 335, 338. Thus, relying on the presumption that the word "may" generally conn......
  • Johnson v. State, No. 3-680A165
    • United States
    • Indiana Court of Appeals of Indiana
    • September 29, 1981
    ...531, 69 N.E.2d 549. Such a rule is also in keeping with the presumption of innocence...." Page 101 Lasko v. State (1980), Ind.App., 409 N.E.2d 1124, 1127. The following passage from the leading treatise on statutory construction evinces the relevancy of the rule of strict construction ......
  • Request a trial to view additional results
12 cases
  • Barnes v. Glen Theatre, Inc, No. 90-26
    • United States
    • United States Supreme Court
    • June 21, 1991
    ...Adims v. State, 461 N.E.2d 740, 741-742 (Ind.App.1984); State v. Elliott, 435 N.E.2d 302, 304 (Ind.App.1982); Lasko v. State, 409 N.E.2d 1124, 1126 (Ind.App.1980).2 The dissent confidently asserts, post, at 590-591, that the purpose of restricting nudity in public places in general is to pr......
  • Tun ex rel. Tun v. Fort Wayne Community Schools, No. 1:03CV217.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • July 22, 2004
    ...or condition is not visible to the public eye," meaning that the stall "is not a public place." Id. at 47; see also Lasko v. State, 409 N.E.2d 1124 (Ind.App.1980) (holding that a locked room in massage parlor was not a public place because it was not reasonably foreseeable that the general ......
  • Joy v. State, No. 1-783A228
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1984
    ...the intention of the legislature is defeated. State v. Bigbee, (1973) 260 Ind. 90, 292 N.E.2d 609, 611; Lasko v. State, (1980) Ind.App., 409 N.E.2d 1124, 1127; Hanic v. State, (1980) Ind.App., 406 N.E.2d 335, 338. Thus, relying on the presumption that the word "may" generally connotes a dis......
  • Johnson v. State, No. 3-680A165
    • United States
    • Indiana Court of Appeals of Indiana
    • September 29, 1981
    ...Ind. 531, 69 N.E.2d 549. Such a rule is also in keeping with the presumption of innocence...." Page 101 Lasko v. State (1980), Ind.App., 409 N.E.2d 1124, 1127. The following passage from the leading treatise on statutory construction evinces the relevancy of the rule of strict construction ......
  • Request a trial to view additional results

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