Thompson v. State

• Decision Date: 01 October 1985
• Docket Number: No. 2-1084A327,2-1084A327
• Citation: 482 N.E.2d 1372
• Parties: Larry THOMPSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1372

482 N.E.2d 1372

Larry THOMPSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-1084A327.

Court of Appeals of Indiana,

Second District.

Oct. 1, 1985.

Linda M. Wagoner, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Larry Thompson appeals his conviction for Public Indecency under Ind.Code Ann. Sec. 35-45-4-1 (Burns Supp.1984), a class A misdemeanor. Thompson challenges the court's finding the prohibited conduct occurred in a "public place" within the meaning of the statute. ¹

We affirm.

On April 10, 1984, Officer Michael Horn entered the Southside Adult Museum at 3510 Madison Avenue, Marion County, Indiana. The officer testified adult magazines and other paraphernalia for purchase were located in the front section of the store. Several movie-viewing booths lined the north and south sides of the building. Each booth, approximately two and one-half feet by four and one-half feet in size, contained a coin machine and a small wooden bench. Each booth had a wooden door which was hinged approximately two feet above the floor and which could be locked from the inside with a hook-and-eye lock. A "private" sign hung on each of the doors. The booth was dimly lit by the projector light when a movie was being viewed within the booth. There were no windows in the booths. A black, opaque curtain, which hung from the ceiling to the floor of the premises, obstructed a view of the booths from the patrons in the front area of the store.

In addition to the foregoing evidence, the parties stipulated the facts set forth in the affidavit for probable cause, which described the act committed by Thompson, and observed by Officer Horn, within the confines of the booth Officer Horn occupied. The affidavit, in relevant part, states: "LARRY A. THOMPSON ... EXPOSED GENITALS TO THIS OFFICER [HORN] BY PLACING HIS PENIS THROUGH A GLORY HOLE ² INTO MY BOOTH." Record at viii. The parties agreed the sole issue for the fact finder's determination at trial was whether the described conduct occurred in a "public place."

The relevant section of the public indecency statute under which Thompson was charged ³ and convicted provides:

"(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[.]"

Ind.Code Sec. 35-45-4-1 (emphasis added). Thus, an essential element of the offense which the State must prove beyond a reasonable doubt is that the indecent exposure occurred in a public place.

In this case, Thompson challenges the sufficiency of the evidence supporting the trial court's finding that the charged act occurred in a public place. In support of his argument Thompson cites Lasko v. State, 409 N.E.2d 1124 (Ind.App.1980). There, defendant Lasko escorted a vice squad officer from the massage parlor reception area into a separate and locked room where, after both parties disrobed, Lasko massaged the officer and fondled his genitals. This court reversed Lasko's conviction for public indecency concluding the described conduct did not occur in a "public place" within the meaning of the public indecency statute. In reaching its conclusion, the court reviewed the definitions of "public place" employed by our supreme court in State v. Baysinger, 272 Ind. 236, 397 N.E.2d 580 (1979). ⁴ Quoting from Baysinger, the Lasko 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.

....

" 'From a consideration of the terms "accessible", "public", and "public place", as defined hereinabove, together with the purpose of the Act, we have concluded that the phrase "in any place accessible to the public" as used in Sec. 10-2330, supra, means any place where the public is invited and are [sic] free to go upon special or implied invitation--a place available to all or a certain segment of the public.' 272 Ind. at 240-241, 397 N.E.2d at 583."

409 N.E.2d at 1127-28.

The Lasko court considered the facts in light of these definitions and determined the separate room where the acts were committed did not constitute a "public place". The court explained:

"What occurred in this case was not done before an assemblage of people. Compare Ardery v. State (1877), 56 Ind. 328. Persons did not enter--indeed, could not enter--the locked room while Lasko and the Officer were engaged in their licentious liasion. Certainly neither the public nor any segment thereof was invited, expressly or impliedly, to witness the illicit act. The room was not accessible while the prohibited conduct was in progress. The public was not free to enter 'without restraint.'

"The legislative intent in prohibiting such conduct from occurring in a 'public place' appears to be to compel persons who wish to engage in such conduct to do so privately.... Our case law supports the theory that public indecency, when only two consenting persons are involved in the act, is made punishable in order to protect the non-consenting viewer who might find such a spectacle repugnant....

"So what two consenting adults do in private is not 'public' indecency. It may be indecent; it may also be an act of private lewdness....

....

"... When only two participants are involved, the cases seem to focus on whether the conduct is likely to be witnessed by other persons."

409 N.E.2d at 1128-29 (footnote omitted).

The focal inquiry for the Lasko court in making its public/private determination was the existence of an actual or potential view of the illicit act by the public.

A public/private determination was also an issue in Adims v. State, 461 N.E.2d 740 (Ind.App.1984). In Adims private viewing booths with lockable doors with "in use" lights above the doors encircled a small stage upon which three nude or partially nude dancers performed. A glass window in the booth permitted the arresting officer to see onto the stage once he deposited his money in a coin machine located within the booth. This court affirmed the public indecency conviction of dancer Debbie Adims. In so doing, this court again emphasized the viewability of the dancer's nudity by members of the public.

Employing the definition of "public place" adopted by our supreme court in Baysinger, we examine the facts of the instant case. Initially, it is beyond dispute that the Southside Adult Museum qualifies as a place, "where the public is invited and are [sic] free to go upon special or implied invitation--a place available to all or a certain segment of the public." Baysinger, 272 Ind. at 241, 397 N.E.2d at 583, quoting Peachey v. Boswell, 240 Ind. 604, 167 N.E.2d 48, 57 (1960).

The characterization of the business establishment as a "public place," however, does not carry over into areas within the establishment which are properly denominated as "private places". We rejected this notion in Lasko where we noted "the error of holding ... that any private room in a business establishment is so much a part of such establishment as to make it a 'public place' for purposes of the Indecency statute." Lasko, 409 N.E.2d at 1129.

Nevertheless, in the instant case, the booths located within the Southside Adult Museum fall within the definition of "public place" employed in Baysinger and by this court in Lasko. Members of the public enjoyed unrestricted access to the individual film-viewing booths in the Southside Adult Museum. The public was invited to enter the booths for the purpose of viewing sexually explicit films. In particular, the booth adjoining Thompson's was open to common and general use.

Thompson, however, argues that inasmuch as members of the public could not witness "the conduct between two adults [Thompson and Officer Horn] who had voluntarily chosen to occupy the booths[,]" appellant's brief at 6, the conduct in question did not occur in a public place. In effect, Thompson suggests his case is factually analogous to the situation involved in Lasko and concludes the court's decision in that case is controlling. The fallacy in Thompson's reasoning is that it ignores the fact members of the public were implicitly invited to enter, without restraint, the individual film-viewing booths, and indeed, a member of the public, Officer Horn, did enter one such booth and was exposed to Thompson's act of indecency.

Arguably, once a patron enters a film-viewing...