Robinson v. State, 5794

• Decision Date: 29 January 1973
• Docket Number: No. 5794,5794
• Citation: 253 Ark. 882,489 S.W.2d 503
• Parties: Lorie ROBINSON and Shirley Morris, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 503

489 S.W.2d 503

253 Ark. 882

Lorie ROBINSON and Shirley Morris, Appellants, v. STATE of Arkansas, Appellee.

No. 5794.

Supreme Court of Arkansas.

Jan. 29, 1973.

R. W. Laster, Little Rock, for appellants.

Ray Thornton, Atty. Gen. by Lonnie A. Powers, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

The appellants, Lorie Robinson and Shirley Morris, were convicted in the Little Rock Municipal Court on the charge of indecent exposure and each was fined $50 and costs. On appeal to the circuit court the case was submitted to the trial judge sitting as a jury on the record made in the municipal court. The appellants were found guilty in circuit court and were fined $50 and costs. The statute under which the appellants were charged, Ark.Stat.Ann. § 41--2701 (Repl.1964) states as follows:

'Every person who shall appear in public places naked or partly so, with the intent of making a public exhibition of his nudity, or who shall make any obscene exhibition of his person shall be deemed guilty of a misdemeanor.'

Ark.Stat.Ann. § 41--2702 (Repl.1964) pertains to publicly exhibiting obscene or indecent pictures or figures and § 41--2703 provides penalty for the violation of the two previous sections as a fine of not less than $50. Sections 41--2704 through 41--2708 have to do with obscene literature.

Little Rock Police Officer Richard Duran and Lt. Pearson testified that they were admitted to the 'Gaslite Club' in the Lafayette Hotel in Little Rock, upon the payment of $1.50 admission fee and there observed the female appellants appear on stage naked from the waist up. They testified that the appellants wore some type of gown when they first appeared on the stage; that they removed the gowns and were clad only in some 'briefs' covering the lower part of their bodies. The officers testified that a male person then appeared on the stage and painted the appellants' breasts with a fluorescent paint, and that after their breasts were painted the appellants danced for approximately three to five minutes and then left the stage. The officers testified that after observing this performance twice at about one hour intervals they obtained arrest warrants and served the warrants on the appellants.

On appeal to this court the appellants first contend that the circuit court should have dismissed the charges of indecent exposure because there was no prior adversary hearing held to determine the issue of obscenity. Under this contention the appellants admit that most, if not all, of the cases concerning obscenity deal with books, photographs or films and relate to illegal searches and seizures. The appellants argue, however, that the First Amendment to the United States Constitution applies to all forms of expression, including the art of dancing, and that the arrest of the appellants constituted a prior restraint on the exercise of freedom of expression forbidden by the First and Fourteenth Amendments to the United States Constitution.

In the Florida case of Hoffman v. Carson, Fla., 250 So.2d 891, a go-go dancer was arrested for dancing naked under a statute similar to our own and we agree with the Florida Court when it said: 'Appellant loses sight of the distinction between speech and conduct. The statute is not directed at First Amendment rights of free expression, nor does it concern itself with obscenity. . . .' The Florida Court then continues:

'The United States Supreme Court has frequently recognized the distinction between conduct which may be regulated by the State and expression which may not be restricted except upon proof of obscenity.' Citing Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

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