State v. Ciancanelli

Decision Date24 April 2002
PartiesSTATE of Oregon, Respondent, v. Charles Robert CIANCANELLI, Appellant.
CourtOregon Court of Appeals

Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, State Public Defender. Charles Robert Ciancanelli filed the supplemental brief pro se.

Robert M. Atkinson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, and BREWER, Judges, and COLLINS, Judge pro tempore.

Resubmitted En Banc March 6, 2002.

LANDAU, J.

Defendant operates a business that offers live sex shows to the public. The state charged him with two counts of promoting unlawful sexual conduct in a public show, ORS 167.062, one count of promoting prostitution, ORS 167.012, one count of compelling prostitution, ORS 167.017, and two counts of using a child in a display of sexual conduct, ORS 163.670, arising out of the operation of that business. Before trial, he moved to suppress certain evidence that police obtained during a search of the premises. The trial court denied the motion. Defendant also challenged the constitutionality of the two statutes that prohibit promoting unlawful sexual conduct in a public show and promoting prostitution, ORS 167.062 and ORS 167.012 respectively. According to defendant, the conduct of his business is protected by the free expression guarantees of Article I, section 8, of the Oregon Constitution, and the First Amendment to the United States Constitution. The trial court rejected those challenges as well. Defendant was convicted of the foregoing charges, and he now appeals, arguing that the trial court erred (1) in denying the motion to suppress, (2) in upholding the constitutionality of ORS 167.062, and (3) in upholding the constitutionality of ORS 167.012. We affirm as to the denial of the motion to suppress without further discussion. As to the constitutional challenges, we also affirm for the reasons that follow.

Because the state prevailed at trial, we state the evidence in the light most favorable to it. State v. Thompson, 328 Or. 248, 250, 971 P.2d 879, cert. den. 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999). Defendant operated Angels, an "adult-oriented" business in Roseburg that offered various "shows" to individuals or small groups. The customers would select a show, pay a fee, and retire to a small room in which the shows would be performed.

Two undercover officers visited Angels. They paid $100 to view a "toy show." A woman performer took them to a small room with a couch and a CD player. She started the music and performed a striptease. She masturbated and inserted her fingers into her vagina and her anus. She also inserted a dildo into her vagina. She continued those activities for 25 minutes. The officers gave the performer a tip and left.

The two officers returned the following week and paid to view a "two girl show" for $150. They were taken to a performance room, in which two women dressed in lingerie turned on some music, performed a striptease, sat on the officers' laps, and rubbed their breasts on the officers' chests. One of the women then inserted a dildo into her vagina, while the other manipulated it. The two kissed, touched each other, and engaged in oral sex with one another. Shortly after that performance, the officers obtained and executed a search warrant at Angels and arrested both defendant and the performers. Defendant was charged by indictment with the aforementioned offenses.

Before trial, defendant demurred to the indictment, arguing that ORS 167.062 and ORS 167.012 violate his rights of free expression guaranteed by the state and federal constitutions. Specifically, he argued that ORS 167.062 is overbroad and therefore facially invalid and that both statutes are unconstitutional as applied to this case. The trial court overruled the demurrers.

On appeal, defendant first assigns error to the trial court's decision on the demurrer to the charges brought under ORS 167.062. He argues, as he did to the trial court, that the statute is facially unconstitutional and unconstitutional as applied. In support of his argument under the state constitution, he relies on State v. House, 66 Or.App. 953, 676 P.2d 892, on recons. 68 Or.App. 360, 681 P.2d 173 (1984), aff'd. on other grounds 299 Or. 78, 698 P.2d 951 (1985), in which this court held that the portions of ORS 167.062 (1983) that prohibited public touching of the "genitals, pubic area or buttocks" were unconstitutionally overbroad. According to defendant, House now should be applied to strike down the balance of ORS 167.062. As for his argument under the federal constitution, defendant briefly contends that the statute fails because it is broader than necessary to further any legitimate state interest. Cited in support is Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000).

The state replies that, as to defendant's arguments under the state constitution, House is distinguishable and, in any event, was wrongly decided. According to the state, our opinion in House failed to analyze the statute in accordance with State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982), and its progeny. Under the Robertson analysis, the state argues, we must first determine whether the statute regulates expression; if it does not, the inquiry ends, because Article I, section 8, protects only expression. In this case, the state argues, the statute in fact regulates only conduct—specifically "sexual conduct"—not expression. Even assuming that the statute regulates expression, the state continues, under Robertson, the proper inquiry then is whether it regulates the content of the expression; if it does, then it is unconstitutional unless wholly contained within a historical exception to Article I, section 8. According to the state, in this case, the statute is indeed wholly contained within a historical exception. Thus, the state concludes, whether the statute is regarded as regulating expression or not, it does not violate Article I, section 8. As for defendant's arguments under the federal constitution, the state replies that, in Pap's A.M., the United States Supreme Court upheld the constitutionality of a local government prohibition on nude dancing.

ORS 167.062(3) provides that "[i]t is unlawful for any person to knowingly direct, manage, finance or present a live public show in which the participants engage in * * * sexual conduct." The term "live public show" means "a public show in which human beings, animals, or both appear bodily before spectators or customers." ORS 167.062(5)(a). "Public show," in turn, means "any entertainment or exhibition advertised or in some other fashion held out to be accessible to the public." ORS 167.062(5)(b). "Sexual conduct" means, among other things, "human masturbation, sexual intercourse * * * in an act of apparent sexual stimulation or gratification." ORS 167.060(10).

We begin with defendant's contention that ORS 167.062 violates the state constitution. At the outset, we note that defendant agrees that the statute applies to the conduct that we have described. Specifically, there is no debate that what the performers did was, in fact, "sexual conduct" and that the performers engaged in that conduct in a "public show," as those terms are defined in the relevant statutes.1

Article I, section 8, of the Oregon Constitution, provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

The constitution thus prohibits restraints on expression. The question whether conduct may be "expression" protected by state or federal free speech guarantees is a notoriously difficult one. See, e.g., Laurence H. Tribe, American Constitutional Law § 12-7, 825-32 (2d ed. 1988) (detailing difficulties with drawing a distinction between speech and conduct). All speech is conduct in some sense; likewise much conduct is expression in the sense that it communicates an opinion or a message. Under Oregon law, however, merely because conduct is expressive does not necessarily establish that it is protected by Article I, section 8. In Huffman and Wright Logging Co. v. Wade, 317 Or. 445, 857 P.2d 101 (1993), for example, six members of "Earth First!" climbed on top of and chained themselves to logging equipment from which they suspended a large banner that read: "FROM HERITAGE TO SAWDUST— EARTH FIRST!" When the owner of the logging equipment obtained compensatory and punitive damages in an action for trespass, the defendants challenged the constitutionality of the verdict, arguing that their conduct was expression protected under Article I, section 8. The court stated that,

"[a]lthough those acts undoubtedly had a communicative effect, in the sense that most purposive human activity communicates something about the frame of mind of the actor, the acts were conduct, not speech."

Id. at 449-50, 857 P.2d 101.

In this case, defendant contends that the statute restrains expression protected by Article I, section 8, because it prohibits sexual conduct in a public show. According to defendant, any performance before an audience is expressive. In our view, the question is not so simply resolved. As Huffman and Wright Logging Co. makes clear, merely engaging in conduct to attract the attention of an audience does not necessarily transform the conduct into protected expression. Homicide, for example, is conduct. Performing it in front of an audience does not transform it into protected expression.

We need not determine, however, whether ...

To continue reading

Request your trial
10 cases
  • City of Nyssa v. Dufloth/Smith
    • United States
    • Oregon Court of Appeals
    • October 30, 2002
    ...Supreme Court not held that nude dancing is protected expression under Article I, section 8, but that our reasoning in State v. Ciancanelli, 181 Or. App. 1, 45 P.3d 451, rev. pending (2002), compels the conclusion that nude dancing is not protected expression, at least under the state const......
  • Boyd v. County of Henrico
    • United States
    • Virginia Court of Appeals
    • February 24, 2004
    ...N.E.2d 297, 301 (1986) (observing that "prohibiting public nudity is plainly within the State's police powers"); State v. Ciancanelli, 181 Or.App. 1, 45 P.3d 451, 455 (2002) (surveying historical disdain toward public nudity); Lacour v. State, 21 S.W.3d 794, 796 (Tex.App.2000) (recognizing ......
  • Boyd v. County of Henrico, Record No. 0377-02-2
    • United States
    • Virginia Court of Appeals
    • June 10, 2003
    ...457 F.Supp. 1170, 1174 (E.D.N.Y.1978) ("It is undoubted that public nudity can be banned." (citation omitted)); State v. Ciancanelli, 181 Or.App. 1, 45 P.3d 451, 455 (2002) (surveying historical disdain toward public nudity); Lacour v. State, 21 S.W.3d 794, 796 (Tex.App.2000) (recognizing p......
  • State v. Ciancanelli, CC 98CR2685FE; CA A108122; SC S49707).
    • United States
    • Oregon Supreme Court
    • September 29, 2005
    ...the proposition that a live sex show has content that qualifies as "expression" under Article I, section 8. State v. Ciancanelli, 181 Or.App. 1, 7, 45 P.3d 451 (2002). Utilizing the analytical framework for challenges under Article I, section 8, that this court set out in Robertson, the Cou......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT