Young v. State, CR

• Decision Date: 08 July 1985
• Docket Number: No. CR,CR
• Citation: 286 Ark. 413,692 S.W.2d 752
• Parties: Sonia YOUNG, Appellant, v. STATE of Arkansas, Appellee. 85-51.
• Court: Arkansas Supreme Court

Page 752

692 S.W.2d 752

286 Ark. 413

Sonia YOUNG, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-51.

Supreme Court of Arkansas.

July 8, 1985.

John Wesley Hall, Jr., P.A., Little Rock, for appellant.

Steve Clark, Atty. Gen. by Connie Griffin, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellant, Sonia Young, was charged and convicted of indecent exposure under Ark.Stat.Ann. § 41-1812 (Repl.1977), for nude dancing in a local nightclub. Appellant challenges the conviction on essentially two grounds: first, that her behavior did not constitute an offense under the statute and second, that her conduct was protected under the First Amendment. We find no merit in either contention.

Ark.Stat.Ann. § 41-1812 provides:

Indecent exposure. (1) A person commits indecent exposure if, with purpose to arouse or gratify the sexual desire of himself or of any other person, he exposes his sex organs:

(a) in a public place or public view; or

(b) under circumstances in which he knows his conduct is likely to cause affront or alarm.

(2) Indecent exposure is a class A misdemeanor.

Appellant raises four points in her argument that her behavior did not constitute an offense under the statute. She contends first that the purpose of the statute is to criminalize the conduct of "flashers" and not nude dancers. The Commentary to the statute, however, makes it quite clear that appellant's dancing was indeed intended to be covered by the statute:

"If an exhibition covered by subsection (b) occurs in a public place or in public view, then the actor also falls within subsection (a). However, subsection (a) is primarily directed at the professional exhibitionist before a willing audience whose reaction to the exposure of sex organs is likely to be quite the opposite of affront or alarm."

Appellant next argues her performance did not occur in a public place or public view. Ark.Stat.Ann. § 41-1801(6) defines public place as one publicly or privately owned "to which the public or substantial numbers of people have access." The Commentary notes:

"Public place" is defined broadly to include any locality to which substantial numbers of people have access ... As expressly stated in the definition, whether the property is publicly or privately owned is not a determinative factor. Hence a bar or even a private club can be a "public place" if open to substantial numbers of people. Implicit in the definition of public place is that it must be accessible to substantial numbers of people at any one time. A place that is licensed to the general public, but is available to only a few members of the public at any one time, as for example a motel or hotel room, is not a "public place."

The establishment in this case was a public tavern, not a private club, and at the time of the arrest was serving thirty to forty patrons. Appellant does not deny the bar was a public place but asks us to narrow the definition to exclude establishments that limit their fare only to consenting adults and forewarned viewers. This proposition is contrary to the stated intent of the statute and one more appropriately addressed to the legislature than to the courts.

Appellant claims her actions did not involve the exposure of her sexual organs. She concedes her pubic area was exposed, but her sex organs "scrupulously were not." There is no testimony to support that contention however and the arresting officer testified that people were sitting below the stage and from that position anyone could see the vaginal area or labia.

As her last point in this argument, appellant insists there was no proof she was dancing to arouse or gratify the sexual desires of herself or others. We have said one's intent or purpose ordinarily cannot be shown by direct evidence but must be inferred from the facts and circumstances shown in evidence. Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984); Johnson & Carrol v. State, 276 Ark. 56, 632 S.W.2d 416 (1982). Here there was a sign outside the building advertising nude dancing with the silhouette of a dancing woman painted on the building. Inside there was a stage where appellant performed. The arresting officer testified appellant removed a brief outfit and while dancing ran her hand over her breast, down over her stomach and rubbed herself on the inner thigh below the vaginal area. As mentioned earlier, there were thirty to forty patrons in the tavern at the time. From the circumstances in their entirety it is a fair inference that appellant's purpose was to arouse or gratify the sexual desires of others.

Appellant's remaining constitutional arguments are premised on the argument that her behavior was "mere nude dancing" and entitled to First Amendment protection under the Constitution of the United States. We do not take issue with that contention, except to note that the statute and activity in this case do not deal merely with nudity or nude dancing, but with something more as proscribed by the statute. Appellant makes no argument that the proscribed activity under the statute is entitled to First Amendment protection, only that mere nude dancing is entitled to such protection. As we have said, appellant's conduct in this case was not simply nudity, but conduct that came within the proscriptions of Ark.Stat.Ann. § 41-1812. As we hold appellant's conduct not to be mere nudity, and since appellant does not argue the proscribed activity under the statute is constitutionally protected, there is no need to address the remaining aspects of the arguments.

The court suspended imposition of appellant's sentence for one year on condition that she "not display herself in a public place for commercial exploitation or sales promotion" nor "display herself nude in bars or beer joints." Appellant challenges this condition as a prior restraint in violation of the...