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

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