Carlos Owens v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 25, 2018
• Docket: 18A-CR-160
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 25 2018, 10:17 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David K. Payne Curtis T. Hill, Jr. Braje, Nelson & Janes, LLP Attorney General of Indiana Michigan City, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Carlos Owens, September 25, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-160 v. Interlocutory Appeal from the LaPorte Superior Court State of Indiana, The Honorable Richard R. Appellee-Plaintiff Stalbrink, Jr., Judge Trial Court Cause No. 46D02-1708-CM-2249

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-160 | September 25, 2018 Page 1 of 8 Case Summary [1] Carlos Owens, an inmate in the Indiana State Prison, was charged with class A

misdemeanor public indecency and class B misdemeanor harassment. Owens

filed a motion to dismiss the public indecency charge, claiming that the facts

stated in the charging information did not constitute that offense. The trial court

denied his motion. He brings this interlocutory appeal, claiming that the trial

court abused its discretion in denying his motion to dismiss. Finding that the

trial court did not abuse its discretion, we affirm.

Facts and Procedural History [2] Within the walled-off Indiana State Prison campus is an education building that

serves as a school and a work location. GED classes and vocational classes for

offenders are held in the building, which has a library and a food service area.

Both offender and non-offender employees have various job duties in the

building. The Department of Correction routinely gives tours of the building to

non-state employees and government groups. Tr. Vol. 2 at 10-11. A person

must pass through security and register either as a guest or an employee to gain

access to the building. Id. at 12.

[3] On May 3, 2017, Owens was in a hallway in the building. The hallway is in the

shape of a square around which classrooms and other rooms with windows are

situated, and offenders or staff walk around to get from one area to the other.

Id. at 11. Because of this layout, a person standing on a given corner has an

unobstructed view of the intersecting hallways. Id. at 12. In full view of the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-160 | September 25, 2018 Page 2 of 8 surveillance cameras, Owens stood in a corner, pulled out his penis, and

masturbated. He stopped masturbating, looked around, walked a few feet

away, dropped his pants, and began to masturbate again. He stripped off his

“shirt, shoes, pants and underwear” in the hallway and continued masturbating

until he ejaculated on the floor. State Ex. 1. Owens grabbed his clothes and

ran to the opposite end of the hallway to get dressed. He walked back down the

hallway and cleaned up his bodily fluids. Surveillance camera footage showed

other people in the hallways around the area where Owens was observed

masturbating. Id.

[4] In August 2017, the State charged Owens with class A misdemeanor public

indecency and class B misdemeanor harassment. In October 2017, Owens filed

a motion to dismiss the public indecency charge, claiming that the facts stated

in the charging information did not constitute that offense because a hallway

within a prison may not be considered a public place for purposes of the public

indecency statute. The trial court conducted a hearing during which Charles

Whelan, an investigator with the Department of Correction, testified to the

foregoing facts about the building. The trial court subsequently denied Owens’s

motion to dismiss. This interlocutory appeal ensued.

Discussion and Decision [5] Owens contends that the trial court erred in denying his motion to dismiss.

Under Indiana Code Section 35-34-1-4(a)(5), a trial court may dismiss a

charging information if the facts stated do not constitute an offense. The

purpose of Indiana Code Section 35-34-1-4(a)(5) is to “establish facts that aid in Court of Appeals of Indiana | Memorandum Decision 18A-CR-160 | September 25, 2018 Page 3 of 8 a determination of whether an offense has properly been charged against the

defendant as a matter of law.” State v. Bryant, 4 N.E.3d 808, 809-10 (Ind. Ct.

App. 2014), trans. denied. “Generally, the facts alleged in the information are to

be taken as true.” Lebo v. State, 977 N.E.2d 1031, 1035 (Ind. Ct. App. 2012).

We review a trial court’s denial of a motion to dismiss for an abuse of discretion

and will reverse only where the decision is “clearly against the logic and effects

of the facts and circumstances.” Ceaser v. State, 964 N.E.2d 911, 918 (Ind. Ct.

App. 2012), trans. denied. A trial court abuses its discretion when it

misinterprets the law. State v. Thakar, 82 N.E.3d 257, 259 (Ind. Ct. App. 2017).

[6] Indiana Code Section 35-45-4-1(a)(4) provides that a person who knowingly or

intentionally, in a public place, fondles the person’s genitals or the genitals of

another person, commits public indecency, a class A misdemeanor. The

charging information alleges that Owens “did knowingly or intentionally, in a

public place, fondle his own genitals, to wit: Owens masturbated in the

hallways of the Indiana State Prison while peeking into [an] office.”

Appellant’s App. Vol. 2 at 8. In Owens’s motion to dismiss, he asserted that

the facts stated in the charging information did not constitute the offense of

public indecency because “the hallway within a prison may not be considered a

public place for purposes of the public indecency statute.” Id. at 28.

[7] The term “public place” is not defined by the public indecency statute. In State

v. Baysinger, our supreme court recited the following language from a gambling-

related case in addressing a vagueness challenge to the public indecency statute:

Court of Appeals of Indiana | Memorandum Decision 18A-CR-160 | September 25, 2018 Page 4 of 8 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.

A place may be accessible to the public for gambling notwithstanding that every person who desires is not permitted access thereto.

It has also been held in a case involving a prohibition law that by ‘public’ is meant that the public is invited to come to the place and has access to it for the purpose within the scope of the business there maintained.

‘Accessible to the public’ as used in the Act here in question has not been defined by either of the courts of appeal of this State, nor have we been able to find definition by the courts in other jurisdictions.

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 [the relevant statute], means any place where the public is invited and are free to go upon special or implied invitation a place available to all or a certain segment of the public.

272 Ind. 236, 397 N.E.2d 580, 583 (1979) (citations and quotation marks

omitted) (quoting Peachey v. Boswell, 240 Ind. 604, 621-22, 167 N.E.2d 48, 56-57

(1960)). The Baysinger court found “no merit in the contention that the [public

Court of Appeals of Indiana | Memorandum Decision 18A-CR-160 | September 25, 2018 Page 5 of 8 indecency] statute is vague because the word public is undefined.” Id. at 241,

397 N.E.2d at 583.1

[8] This Court has stated that the purpose of the public indecency statute is to

“protect the non-consenting viewer who might find such a spectacle

repugnant.” Thompson v. State, 482 N.E.2d 1372, 1375 (Ind. Ct. App. 1985).

Whether in fact the public can or does enter a place is simply one factor in

determining whether it is public in nature. Lasko v. State, 409 N.E.2d 1124,1129

(Ind. App. Ct. 1980). The factor of reasonably foreseeable, potential witnessing

of the prohibited conduct is also significant. Id.

[9] Owens notes that the building’s hallway, where he masturbated, was enclosed

within the prison walls, and he argues that because of the “multiple layers” of

limitations and restrictions on persons entering the prison campus, the “public”

could not witness him masturbating. Appellant’s Br. at 9. He further contends

that “everyone entering inside the [Indiana State Prison] wall would be entering

for personal business” with the prison, thus not every member of the public is

impliedly invited or encouraged to enter the prison. Id. at 11. He relies in part

on Lasko, in which our Court held that a locked room of a massage parlor was

not a public place for purposes of the public indecency statute because “the

public was not free to enter without restraint.” 409 N.E.2d at 1128. Owens

further compares the hallway where he masturbated to the apartment hallway

in State v. Culp, in which our Court found that an enclosed hallway of an

1 Owens does not argue on appeal that the public indecency statute is unconstitutionally vague.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-160 | September 25, 2018 Page 6 of 8 apartment house was not a public place for purposes of the public intoxication

statute because the general public is not invited to enter common areas of an

apartment house except when they have personal business with the tenants.

433 N.E.2d 823, 826 (Ind. Ct. App. 1982), trans. denied (1983).

[10] In Wright v. State, our Court distinguished Culp, finding that an enclosed

hallway in a hotel was considered a public place for purposes of the public

intoxication statute. 772 N.E.2d 449, 455 (Ind. Ct. App. 2002). The Wright

court reasoned that a hotel hallway is visited by many people, hotel guests

expect to enjoy little privacy outside their individual rooms, and guests are

aware that they may encounter unfamiliar members of the public in the

hallways and other common areas. Id. at 56.

[11] Here, we find the hotel hallway in Wright more similar to the hallway where

Owens masturbated than the apartment hallway in Culp. The building serves as

a work and a school location. Whelan testified that the hallway in the building

was a “general hallway” where visitors including civilian employees, staff, tour

groups, and other offenders would be walking around to get to classrooms, a

library, and a food service area. Tr. Vol. 2 at 11. The surveillance camera

footage showed people in the hallway where Owens was masturbating. Thus,

there was a high probability that visitors, staff, tour groups, and other offenders

could potentially witness Owens masturbating.

[12] We therefore conclude that the hallway where Owens masturbated was a public

place for purposes of the public indecency statute. See Thompson v. State, 482

Court of Appeals of Indiana | Memorandum Decision 18A-CR-160 | September 25, 2018 Page 7 of 8 N.E.2d 1372, 1375 (Ind. Ct. App. 1985) (holding that “a film-viewing booth”

within adult store was public place for purposes of public indecency statute

when genitals placed through a hole were susceptible to view by members of the

public who were free to enter adjoining booth without restriction); see also

Arkansas v. Black, 545 S.W.2d 617, 619 (Ark. 1977) (holding that “drunk tank”

was public place for purposes of public sexual indecency statute because of the

possibility of being observed by persons on an occasional tour of the jail,

frequent visitors to inmates, and the other inmates present); Barnes v.

Commonwealth, 737 S.E.2d 919, 922 (Va. Ct. App. 2013) (holding that cell in

lockup where inmate was masturbating while other inmates and authorized

persons were present constituted public place for purposes of indecent exposure

and sexual display statutes). The trial court did not abuse its discretion in

denying Owens’s motion to dismiss his public indecency charge.

[13] Affirmed.

Najam, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-160 | September 25, 2018 Page 8 of 8