Erhardt v. State

468 N.E.2d 224, 1984 Ind. LEXIS 947

Opinions

CRIMINAL PETITION FOR TRANSFER

GIVAN, Chief Justice.

Appellant, Ruth E. Erhardt, was convict ed of Public Indecency, a class A misdemeanor. § 85-45-4-1.

The Court of Appeals reversed her conviction on the ground that there was a lack of evidence to sustain the judgment of the trial court, in that there was no showing her conduct was lewd although it was admitted that she was dancing in the nude under the definition of the statute. Judge Conover wrote a dissenting opinion in the Court of Appeals which is correct in every respect. The opinions of the Court of Appeals are reported at 463. N.E.2d 1121. The pertinent part of the statute reads as follows:

"See. 1. (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, the showing of the female breast with less than a fully opaque covering of any part of the nipple, ...." Ind.Code § 85-45-4-1

The evidence presented by the State in the trial court is that appellant danced in the nude with her nipples covered by transparent tape and with her buttocks exposed. This evidence brings her conduct squarely within the prohibitions of the statute. This Court has previously held the statute to be constitutional. State v. Basinger, (1979) 272 Ind. 236, 397 N.E.2d 580 (Hunter and DeBruler, JJ., dissenting).

It is not for the Court of Appeals or this Court to say what is or is not lewd. That is the exclusive prerogative of the legislature. They have spoken through the statute. The appellant violated the statute. The conviction must stand.

The opinion of the Court of Appeals is set aside and the decision of the trial court is affirmed.

PRENTICE and PIVARNIK, JJ., concur. HUNTER, J., dissents with separate opinion. DeBRULER, J., dissents with separate opinion in which HUNTER, J., concurs.