Naked City, Inc. v. State

Decision Date26 January 1984
Docket NumberNo. 3-282A23,3-282A23
PartiesNAKED CITY, INC., an Indiana Corporation, and Richard Drost, Individually and as President of Naked City, Inc., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Frederick F. Cohn, Chicago, Ill., G. Max Rettig, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., George B. Huff, Jr., Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Pursuant to guilty pleas, Richard Drost and Naked City, Inc. were convicted on several counts of "exhibition of an obscene performance" together with single counts of "offering to distribute obscene matters," "displaying matters harmful to minors," and "sponsoring an obscene performance depicting a person under the age of 16 years." See IC 35-30-10.1-1 et seq. All the charges except "sponsoring an obscene performance depicting a person under the age of 16 years" were misdemeanor charges. The latter charge is a Class D felony.

The evidentiary background discloses that Drost is the president, founder and guiding light of Naked City, Inc., a nudist camp. The camp consists of a restaurant, a central building and a series of cottages available for temporary rental or permanent residence. The main building contains a registration center, Drost's living quarters, an area where films are shown and a soft drink machine and pool table. Although the members of the camp are adults, patrons do bring their children to Naked City and at the time this controversy arose, a family including three children was permanently residing on the grounds. 1

On August 7, 1980 Officer Barry Rutherford went to Naked City as an undercover investigator for the state police. Most of the charges above were based upon Officer Rutherford's experiences during his August 7, 1980 visit to Naked City. Rutherford attended a showing of sexually explicit films, including "The Dirty Western," "Little Girls Blue" and "Dear Pam." The films were shown in one area of the camp's main building. Although minors were not officially allowed to watch the films shown there, children could observe the progress of particular films as they passed through the building on their way to the soft-drink machine and pool table located in the rear. As Rutherford testified, "Minors came through the door of the entrance. Some would stop. None of them sat down and watched the film, per se, they passed in the area, they were in the area." Additionally, as a result of Rutherford's investigation, Indiana State Police officers armed with a search warrant seized 254 allegedly obscene films and videotapes.

The felony charge resulted from one incident Officer Rutherford witnessed. "The Dirty Western" was one of the films shown that day. When this film was shown to the audience, including Officer Rutherford, it included a 35 second Drost-made videotape of a fourteen year old girl. The girl was at Naked City with her parents' permission and her parents consented to the taping.

At a sentencing hearing held February 11, 1982 the state presented evidence that in 1975 Drost had been convicted of keeping a house of ill fame. In 1978 Drost and Naked City were enjoined from conducting a "Mr. and Ms. Nude Teenybopper Contest." The state also presented evidence that Drost had attempted to sexually exploit young women by fraudulent offers of employment at Naked City.

Drost responded with evidence of mitigating factors. This evidence included letters attesting to Drost's good character and to the value of Naked City as a lifestyle. Drost introduced books and articles on the theory and practice of nudism. Several witnesses testified about their experiences at the camp and how they had found it rewarding. Perhaps most importantly, Drost introduced evidence of his fragile health. He is in the advanced stages of muscular dystrophy. Because he is unable to exercise, his bones have "demineralized" and are extremely subject to fracture. In addition, at the time of sentencing Drost had a non-healing displaced fracture of the left hip. Because Drost has no muscle function left in his shoulders, hips, arms and legs, he has to be turned every few hours. He is also very subject to infection. The thrust of Drost's evidence was to urge that he required such meticulous medical care that any form of incarceration could very well prove fatal to him.

In response to this evidence the state introduced the testimony of Samuel Molter, director of one of the complexes at the Westville Correctional Center. Molter described the medical facilities at Westville and indicated that 20 handicapped patients were in residence there. He testified that Westville had arrangements whereby patients in need of care beyond the capabilities of the center could be transferred to either Memorial Hospital in Michigan City or Wishard Hospital in Indianapolis. Because of his lack of medical expertise, Molter was not allowed to give his opinion as to whether Westville could properly care for a patient suffering from the advanced stages of muscular dystrophy. In addition as evidence that Drost's physical condition was not as calamitous as he indicated, the state introduced a videotape entitled "Dick and Jane." This was a videotape made at Naked City depicting Drost having sexual intercourse with a woman. Drost objected that the tape had been made at a time before he had broken his hip and before the degeneration of his muscular structure had progressed to its state at the sentencing date.

After all the evidence had been presented, the court entered sentences for the two defendants. Naked City was fined in varying amounts for each of the charges against it. No appeal has been taken concerning the punishments imposed upon Naked City. Drost was also fined for each of the misdemeanor charges, but received the following sentence for the felony count:

"On that Count the defendant is fined in the penal sum of $10,000. Further, the defendant is sentenced to two years incarceration at the Department of Corrections, Westville Center. Defendant is to commence service of that sentence on the 22nd day of February, 1982.... Westville Center Hospital Facility ... is ordered and directed to submit to this Court, before the 22nd day of February, 1982 a report as to whether or not the Indiana Department of Corrections can maintain the defendant without further injury to his health. If the Indiana Department of Corrections is unable to properly care for the defendant because of his physical infermities [sic] the defendant is then to be returned by the Department of Corrections to his place of residence. The defendant then shall be placed on formal probation for a period of 2 years."

Drost subsequently sought habeas corpus before the United States Court of Appeals for the Seventh Circuit and a stay of execution before the Indiana Supreme Court, but in each instance his petition was denied. This court granted a temporary stay of execution of his sentence pending appeal. Drost now brings this appeal seeking modification of his sentence. His principal contention is that a sentence of incarceration for one with his physical infirmities constitutes a cruel and unusual punishment violating the Eighth Amendment of the United States Constitution. In addition he asserts that he was denied due process when the court refused his request for an evidentiary hearing concerning his ability to spend two years in the Westville Correctional Center. He also asserts that the trial court erred in admitting certain evidence at the sentencing hearing, that the prosecuting attorney failed to abide by a plea agreement, and that it was error to deny Drost's counsel an extension of time in which to file a memorandum of law in support of his already filed motion to correct errors. We consider these three latter points first.

I.

Drost first contends that he was denied due process because the trial court admitted hearsay reports and a videotape at the sentencing hearing. The reports were from two police officers and recounted the experiences of young women with Drost and Naked City. Their tenor was that Drost offered sexual enticements to women to enter his employ and that nude dancing and pornographic movies were featured at Naked City. The videotape depicted Drost having intercourse, and was admitted only for its bearing on Drost's assertions concerning his physical condition. We find no error in the court's reception of these items, nor will we presume that a trial judge, learned in the law, is unable to properly weigh or discount the significance of various items of evidence.

We, of course, agree that a convicted person has the right to be sentenced upon the basis of accurate information and that a sentence based upon "materially untrue assumptions" violates due process. Gardner v. State (1979), 270 Ind. 627, 638, 388 N.E.2d 513, 520. On the other hand, the strict rules of evidence which apply at trial during the guilt finding process no longer govern at sentencing. Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337; Hineman v. State (1973), 155 Ind.App. 293, 292 N.E.2d 618. See also Lottie v. State (1980), Ind., 406 N.E.2d 632. Drost was given ample opportunity to dispute the reports. There was no error in the court considering them.

The same holds true of the videotape. Drost asserts the tape was secured in violation of his Fourth and First Amendment rights. Drost makes no cogent argument as to how the state violated his rights under the First Amendment and we perceive none. Drost was not being prosecuted or punished either for making or possessing the film. It was offered in rebuttal to Drost's own videotape offering concerning his physical condition.

The more apparent claim is that the tape was seized through an improper search. The problem is that the claim ignores the fact that Drost pleaded guilty. Furthermore, there is no real contention that his plea was not...

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  • Bott v. DeLand, 930387
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    ...251 (1976) (giving effect to federal cruel and unusual punishment clause without implementing legislation); Naked City, Inc. v. State, 460 N.E.2d 151, 161 (Ind.Ct.App.1984) (giving effect to the Indiana cruel and unusual punishment clause without implementing legislation). Further, this pro......
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