*1 giving Kreigh part of but No. 10. erroneous instruction
However, to con- I am unable because instruction had no the erroneous clude verdict, I constrained upon the am impact and remand for a concur in the reversal trial. new WEBB, Appellant
Denise C. (Defendant Below), Indiana, Appellee STATE Below). (Plaintiff No. 49A02-8901-CR-00029. Indiana, Appeals District.
Second Aug.13,1991. *2 Ruge Ruppert, Ruppert, & G.
Michael appellant. Indianapolis, Gen., Pearson, Michael Atty. Linley E. Gen., Worden, Atty. Office Deputy Gene appellee. Gen., Indianapolis, for Atty. SHIELDS, Presiding Judge. her conviction appeals Denise C. Webb misdemeanor.1 class A prostitution, a affirm. We
ISSUES ap- arguments on several presents follows: restate as
peal which regulated conduct is Webb's 1. Whether performance obscene by Indiana's prostitu- prosecuted cannot be and thus tion; statutory definition
2. Whether is unconstitution- conduct" sexual "deviate ally vague; 3. Whether overbroad; unconstitutionally is insufficient the evidence 4. Whether conviction; sustain entrapped. 5. Whether prosti- property money commits or intentionally: knowingly or person who A1. However, the tution, A misdemeanor. a Class agrees per- or performs, or offers person felony has if the Class D is a offense form, sexual or deviate intercourse section. under this prior convictions two or conduct; fondles, agrees to fondle the or or offers genitals of another person; the ob- Both the statute and FACTS prohibit certain scene Indianapolis Depart- Police part As of an conduct; explicitly autho- neither statute modeling investigation of the Dulcet ment any proscribed by rizes the other. service, Brian Barnes informant escort A conflict between the statutes is not cere- telephoned on June ar- Dulcet possibility overlapping pro- ated ranging "fantasy session" his room for a seriptions may give jeopardy Indianapo- rise double Hotel in downtown at the Hilton *3 obscenity driv- an arrived at the hotel with a issues or the inclusion of lis. Webb er, During the paid Barnes provision only $150. to whom in one of the two statutes. "session," per- attempted twice to Barnes perform him to cun- permit suade Webb to II. VAGUENESS exchange for he nilingus on her in which argues statutory Webb scheme pay her an additional She $200.
would under which she was convicted is void for however, did, declined offers. She both vagueness provide because it does not ade dance," in which she perform a "bed quate required notice the sexual conduct disrobing. danced over Barnes while charge prostitution of need not subsequently insert- Barnes testified Webb bodily person. contact another involve with penis-shaped object, re- ed a flesh-colored alternatively as a "dildoe" and a ferred to constitutionality of a statute is When vibrator," her anus in ex- "special into challenged, begin presumption with a of change payment of for an additional $50. provide indi validity. penal A statute must adequate notice of the conse viduals with
DECISION contemplated If quences of conduct. indi I. PERFORMANCE OBSCENE guess ordinary intelligence must viduals
STATUTE
meaning
reasonably
or would
differ
at its
application, the statute is void for
as to its
alleged
Claiming her
conduct falls
Ind.App.,
(1988),
prohibitions
within the
of both
vagueness.
v.
Van Sant
statutes,
performance3
233.
2
and obscene
5
separate criminal statutes
argues
Webb
law, prostitution
Under Indiana
must
materia,
an "irreconcila
para
are
intercourse,
object sexual
devi-
have as its
them
conflict" exists
because
ble
between
conduct,
fondling
ate sexual
or the
of an-
pro
performance statute
only the obscene
person's genitals.
85-45-4-2.
other
IC
determining if a
vides "a framework for
agreeing
charged
per-
con
involves sexual
which
money;
form deviate sexual conduct for
no sexual contact-is
or is not
duct-but
specific
conduct involved was an act of
protected by
First Amendment of the
physical object.
with a
anal self-insertion
Appellant's
United States Constitution."
Because this "irreconcilable
Brief at 25.
"Deviate sexual conduct" is defined in
continues,
exists,
the more
conflict"
part
penetration
as "the
of the sex
relevant
prevails as to
detailed statute
organ
person
object."
or anus of a
concludes,
it
Hence Webb
matter
covers.
(1988). Neither the
IC 35-41-1-9
definition
her
criminal
given the nature of
sexual conduct nor the statute
deviate
conduct,
prostitution is
her
conviction
prostitution requires
par
proscribing
she should have
contrary to law because
ticipation
person
of more than one
spe
under the more
prosecuted
been
penetration.
act
Greene
Cf.
performance stat
cific and detailed obscene
N.Y.Crim.Ct.,
(1981),
110 Misc.2d
ute.
(prostitution
specify
N.Y.S.2d 636
ing
person"
another
sexual conduct "with
argument is innovative but una-
conduct).
"autoerotic"
not
in conflict.
held to exclude
vailing. The statutes
are
35-45-4-2,
35-45-4-2,
supra
1.
supra
4.
IC
note
note 1.
law",
hold
and none
scenity as a matter
places Webb and
something may
considered obscene
agreement
notice an
persons on
by a trier of
has been evaluated
money
before it
perform deviate sexual
In these
the Miller standards.
statutory definition of
fact under
prohibited;
the "ultimate
the court exercised
specifically includes
cases
to conduct an
power
appellate
courts
together, the statutes
Read
anal insertion.
of constitutional claims
persons
independent review
permit
sufficiently clear to
necessary." Miller v.
and when
reasonably
lawful
steer between
"[to]
California
15, 25,
(1973),
93 S.Ct.
413 U.S.
with confidence
unlawful
Su
pro
419. As the United States
terms
what
they know
[the statutes']
Georgia
said
Jenkins
preme
Ass'n.,
Inc.
Booksellers
hibit." American
(1974),
94 S.Ct.
S.D.Ind.,
F.Supp.
(1984),
v. Hudnut
Cir.,
that term has been regula by governmental interest furthered [by specifically it is defined stat and as suppression tion must be "unrelated to the Therefore, ute]"). must determine expression." 391 U.S. at of free non-obscene whether Webb's S.Ct. at 1679. expression protected the constituted legitimately first amendment and not sub test, Applying the we find O'Brien ject regulation. to State statute, criminalizing Indiana's performance, As a non-obscene conduct, is the subject autoerotic within scope conduct falls within power of the and fur constitutional State any regulation of and the first amendment governmental interests. thers substantial perceived pass muster under the statute seeks to ad evil its content must Supreme test. Court's O'Brien dancing evils is not autoerotic but the dress prostitution as evidenced "nonspeech" ele- associated with "speech" and
[When requirement the autoerotic conduct in course ments are combined the same it is gov- money." done "for Thus blatant sufficiently important a sexual conduct non- commercialization regulating interest in ernmental legislative to censure as justify incidental speech element can although it constitutes a A reason- Webb's conduct itself. opposed legislature performance. included is the non-obscene inference able prohibition acts within autoerotic same reason
against prostitution OF IV. SUFFICIENCY prostitution, those acts of other traditional THE EVIDENCE contact, and were included involving sexual reviewing sufficiency of the In attempt not, argues, as an as Webb evidence, only to the evidence fa we look conduct. Sub- regulate content rather than and all reasonable vorable to the verdict limiting in interests governmental stantial therefrom. We nei inferences to be drawn from the realization prostitution stem judge weigh conflicting evidence nor ther criminal and breeds The con credibility of the witnesses. persons society by degrading victimizes if affirmed there is evidence viction will be activity. in the participate who reasonable probative value from which a prostitution are de prohibiting Statutes the defendant of fact could infer that trier safety and signed protect public order doubt. Lu guilty beyond a reasonable the tradi public welfare and fall within and (1987), Ind.App., 507 ginbuhl defined as power of the States police tional denied. transfer public or authority provide for the The der, safety welfare. Paris Adult prostitution, The elements (1973),413 U.S. I v. Slaton atre case, that the defendant charged in this In Barnes v. Glen 37 L.Ed.2d (2) agreed to knowingly intentionally or - --, Theatre, Inc. perform Supreme S.Ct. con money.6 IC 85-45-4-2 indecency public concluded Indiana's prove the deviate did not tends the State government furthers substantial points to an conduct element sexual morality. protecting order and interest inconsistency Barnes's tes between criminalizing Clearly, the introduced property report timony and the money, even of an autoerotic conduct for at trial. nature, govern the substantial furthers insert he watched Webb Barnes testified public order protecting mental interest her anus. Contradictions object into welfare. safety and *6 by the trier of are resolved the evidence Webb's con- proscribed has not Indiana fact; not disturb its conclu- court will this except compensation. for sensual is sufficient to The evidence sion. test, we four-part Applying the O'Brien the statute. Webb violated the conclusion statute, au- proscribing hold conduct, justified toerotic deviate ENTRAPMENT V. ex- limitations on the despite its incidental that, The statute assum Finally, of the dance. claims pressive power of the constitutional clearly proscribed within ing committed she govern- furthers substantial entrap and the State was the victim she purpose of statute's interests. The mental entrapment is avail The defense ment. safety and and societal order protecting is the prohibited conduct when the able as the other same extent welfare officer or law enforeement product of a are self-evi- prohibited acts engage defendant to agent persuading the dent. was not which the defendant in the conduct commit. IC 35-41-3-9 predisposed to self-penetration against prohibition The Ind., (1988); Gilley v. State overbroad. gain is not commercial Entrapment question is a Therefore, Indiana's at 132. trier of fact. Id. prohibit applied to constitutionally be can (deviate sexual an act of Brian Barnes anus) for inserting in her a sexual device to-wit: charged un- that Webb "did 6. The information at 23. property, $50.00." Record to-wit: (agree perform) knowingly, with lawfully and facts points to numerous The State RIVERA, Appellant- at placed in evidence Pavlo and circumstances Below, fact find support a reasonable Defendant which
trial predisposed er's determination mon conduct for to commit Indiana, Appellee- STATE to Barnes's example, Webb came ey. For Below. Plaintiff room, equipped with lubricants hotel No. 71A03-9103-CR-86. penis-shaped of flesh-colored an assortment purpose provid admitted objects, for the Indiana, Appeals of Court of "fantasy sexually-oriented ing him with Third District. money. As with exchange session" Aug.13,1991. claim, insufficiency this general Webb's the conclusion not disturb will court fact on the issue by the trier of
reached entrapment. - Judgment affirmed. J.,
SULLIVAN, concurs. J., CONOVER, in result with concurs opinion. separate CONOVER, Judge, concurring in result. claim we disagree majority's I "perform required to assume obscene, case in as is the ance" was not matter at issue has been California. by the fact finder to be obscene determined below, independent appeal on this obviously so.
review, it to I determine 'hard core' sexu "patently offensive It was conduct," exception fell within al Georgia out Jenkins carved 418 U.S. Accordingly, we are not com assumption. make such pelled to *7 majority Otherwise, agree I in result. concur