MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                           Apr 30 2019, 9:08 am
regarded as precedent or cited before any
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
Melinda K. Jackman-Hanlin                                 Curtis T. Hill, Jr.
Greencastle, Indiana                                      Attorney General of Indiana
                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Ray Allgood,                                       April 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2064
        v.                                                Appeal from the Hendricks
                                                          Superior Court
State of Indiana,                                         The Honorable Rhett M. Stuard,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          32D02-1712-CM-1699



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2064 | April 30, 2019                     Page 1 of 9
                                                Case Summary
[1]   Jeremy Ray Allgood appeals his conviction, following a bench trial, for public

      indecency, a Class A misdemeanor. We affirm.


                                                         Issue
[2]   Allgood raises one issue on appeal, which is whether the State presented

      sufficient evidence to establish that Allgood was in a “public place” when he

      committed an act of public indecency.


                                                         Facts
[3]   On the morning of December 25, 2017, Deputy Robert Lenover of the

      Hendricks County Sheriff’s Department worked an off-duty security job at the

      Walmart store in Danville, Indiana. 1 The store was closed for the Christmas

      holiday. Deputy Lenover’s squad car was the lone vehicle in the parking lot

      and was “at the [rear] southwest corner of the lot [ ] facing northbound so

      [Deputy Lenover] could observe the store.” Tr. Vol. II p. 20.


[4]   Although the store was closed for the holiday, “multiple people throughout the

      day” still “approach[ed] [Deputy Lenover]” in the parking lot. Id. at 21.

      “[P]eriodically through the day,” “cars pull[ed] in, [and] realize[d] the store

      [wa]s not open[.]” Id. at 21. “Approximately ten” would-be patrons entered




      1
          Deputy Lenover’s work shift was from 6:00 a.m. until 12:00 p.m.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2064 | April 30, 2019   Page 2 of 9
      the parking lot, and some patrons “attempt[ed] to bring [Deputy Lenover]

      cookies [and] soda, [and] asked if the store [wa]s open[.]” Id. at 20, 25.


[5]   At approximately 8:00 a.m., Allgood pulled into the lot from the east and

      parked facing westbound, but did not exit his car. Deputy Lenover watched

      Allgood’s car for approximately five minutes, then drove over, parked behind

      Allgood’s car, and exited the squad car.


[6]   Although the outdoor temperature was approximately twenty-five degrees

      Fahrenheit, Allgood’s engine was turned off. Deputy Lenover approached

      Allgood’s vehicle from the rear passenger side and saw Allgood masturbating in

      the driver’s seat. Allgood’s pants were pulled down mid-thigh, and he “had a

      cell phone in one hand and his other hand was down his pants with what

      appeared to be a t-shirt or some kind of rag. [Allgood’s] hand was in his pants

      going up and down” in a “jerking” motion “[n]ear his genitals.” Id. at 22, 27.

      Deputy Lenover tapped the passenger window, and Allgood “quickly pulled his

      pants up and covered himself[.]” Id. at 22.


[7]   Deputy Lenover instructed Allgood to exit the vehicle, advised him of his

      Miranda rights and, after Allgood agreed to speak to him, “[a]sked [Allgood]

      what he was doing.” Id. at 22-23. Allgood responded that “he believed he had

      the lot to himself and he was masturbating.” Id. at 23. Deputy Lenover “called

      for an on-duty unit,” and Allgood was arrested. Id. at 26.


[8]   On December 27, 2017, the State charged Allgood with public indecency, a

      Class A misdemeanor. On August 1, 2018, the trial court conducted a bench

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2064 | April 30, 2019   Page 3 of 9
      trial. Deputy Lenover and Allgood were the only testifying witnesses. Deputy

      Lenover testified to the foregoing facts; he testified further that members of the

      general public are allowed to traverse the Walmart parking lot. See id. at 22.


[9]   Allgood testified that, before his arrest, he was released from a nearby work

      release facility on a fifteen-hour day pass to spend Christmas with his family.

      Allgood testified that he exited the facility at 7:00 a.m., but remained in the

      facility’s parking lot until “7:30, 7:45ish” because “the heat in [his] car is really

      bad so [he] had to spend about thirty to forty-five minutes to warm it up.” Id. at

      29. Allgood testified that he then drove to Walmart, where he turned off his

      engine 2 and awaited his parents’ call or text message telling him that he “could




      2
          Later, Allgood testified as follows regarding his reasoning for turning off his engine at Walmart:

                 Q How cold was it that day?

                 A Uh, I would say probably about twenty-five maybe.

                 Q Why were you sitting in a vehicle that was off?

                 A Because like I stated earlier my, uh, heater does not work very well in the car so it does
                 – it don’t matter if I have the car on or not.

                 Q You testified that you spent time at Work Release warming your vehicle up –

                 A Yes.

                 Q -- so then it would give – if it’s that difficult to get your vehicle warm, why would you
                 let it get cold again?

                 A I’d rather not use the gas.

                 Q Okay. So but you used the gas to warm it up in the first place?

                 A Yes.

      Tr. Vol. II p. 37.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2064 | April 30, 2019                            Page 4 of 9
       head to their house for Christmas.” Id. at 34. Allgood denied that his pants

       were unzipped or pulled down or that he was masturbating. He testified that

       when Deputy Lenover asked him what he was doing, Allgood sarcastically

       replied, “What did you think I’m sitting here masturbating?” Id. at 34. Allgood

       testified further that, with the exception of Deputy Lenover’s squad car, no cars

       or patrons were in the parking lot.


[10]   At the close of the evidence, the trial court found Allgood guilty and sentenced

       him to 180 days executed in the Hendricks County Jail. Allgood now appeals.


                                                    Analysis
[11]   Allgood challenges the sufficiency of the evidence to support his conviction.

       When there is a challenge to the sufficiency of the evidence, “[w]e neither

       reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

       210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert.

       denied). Instead, “we ‘consider only that evidence most favorable to the

       judgment together with all reasonable inferences drawn therefrom.’” Id. “We

       will affirm the judgment if it is supported by ‘substantial evidence of probative

       value even if there is some conflict in that evidence.’” Id.; see also McCallister v.

       State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though there was

       conflicting evidence, it was “beside the point” because that argument

       “misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will

       affirm the conviction unless no reasonable fact-finder could find the elements of




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2064 | April 30, 2019   Page 5 of 9
       the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696

       (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[12]   To convict Allgood, the State was required to prove each element of public

       indecency beyond a reasonable doubt. Indiana Code § 35-45-4-1(a) provides:


               A person who knowingly or intentionally, in a public place:


                        (1) engages in sexual intercourse;


                        (2) engages in other sexual conduct (as defined in IC 35-
                        31.5-2-221.5);


                        (3) appears in a state of nudity with the intent to arouse the
                        sexual desires of the person or another person; or


                        (4) fondles the person’s genitals or the genitals of another
                        person;


       commits public indecency, a Class A misdemeanor. The State charged Allgood

       with violating subsection (a)(3).


[13]   Allgood challenges only the sufficiency of the evidence to prove that “the inside

       of [his] car parked at a closed Walmart’s parking lot on Christmas Day

       constituted a public place,” under the statute. Appellant’s Br. p. 4. He argues:


               [he] was inside a vehicle with all doors shut and windows closed.
               It was Christmas day and the Walmart was closed; there were no
               other cars parked in the parking lot; no other cars entered the
               parking lot while Allgood was parked there; and no individuals


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2064 | April 30, 2019   Page 6 of 9
               were in the parking lot. [Thus,] [t]he inside of Allgood’s personal
               vehicle should not have constituted a public place . . . .


       Id. at 7. We cannot agree.


[14]   The aim of the public indecency statute is to “protect the non-consenting viewer

       who might find [ ] a spectacle repugnant.” Thompson v. State, 482 N.E.2d 1372,

       1375 (Ind. Ct. App. 1985). This court has previously held that a “public place,”

       for purposes of a crime of public indecency, is any place that members of the

       public are free to go without restraint. Long v. State, 666 N.E.2d 1258, 1260

       (Ind. Ct. App. 1996). For purposes of determining whether a place is a “public

       place” within the meaning of the public indecency statute, whether the public

       does, in fact, enter the place is simply one factor; the factor of “reasonably

       foreseeable, potential witnessing is also significant.” Lasko v. State, 409 N.E.2d

       1124, 1130 (Ind. Ct. App. 1980).


[15]           “Public place” is defined neither by the public indecency statute
               nor by the public intoxication statute. However, on numerous
               occasions in the context of public intoxication, we have defined
               public place consistent with the definition in Long. See, e.g., Price
               v. State, 600 N.E.2d 103, 115 (Ind. Ct. App. 1992), vacated in part
               by Price v. State, 622 N.E.2d 954 (Ind. 1993) (finding that a public
               place “is a place open to common and general use, participation
               and enjoyment; a place accessible to the public”); Martin v. State,
               499 N.E.2d 273, 276 (Ind. Ct. App. 1986) (stating that a public
               place is one “visited by many persons, and usually accessible to
               the neighboring public”); Heichelbech v. State, 258 Ind. 334, 340,
               281 N.E.2d 102, 106 (1972) (holding that a business
               establishment open to the public was “a public place or place of
               public resort”). Even in those public intoxication cases where the
               term public place was not specifically defined, the facts are
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2064 | April 30, 2019   Page 7 of 9
               similar to those in the instant case. See, e.g., Atkins v. State, 451
               N.E.2d 55, 56 (Ind. Ct. App. 1983) (passenger in a vehicle on a
               public highway is in a public place for purposes of public
               intoxication statute); Miles v. State, 247 Ind. 423, 424-25, 216
               N.E.2d 847, 849 (Ind. 1966) (defendant in the cab of a truck that
               was parked approximately three to four feet from the traveled
               portion of the highway was in a public place for purposes of
               public intoxication statute). [ ] [T]here is no significant difference
               between what constitutes a public place in the context of the
               public indecency statute and what constitutes a public place in
               the context of the public intoxication statute.


       Whatley v. State, 708 N.E.2d 66, 67-68 (Ind. Ct. App. 1999).


[16]   Additionally, in defining a “public place,” our Supreme Court has previously

       adopted the following definition: “[a place] that the public is invited to come to

       . . . and has access to [ ] for the purpose within the scope of the business there

       maintained.” State v. Baysinger, 397 N.E.2d 580 (Ind. 1979) (defining a “public

       place” in the context of a prohibition case). Similarly, this court has defined a

       “public place” as “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.” Wright v. State, 772 N.E.2d 449, 456 (Ind. Ct. App. 2002) (defining

       a “public place” in a public indecency case) (italics omitted). As the Wright

       panel reasoned, “A ‘public place’ does not mean a place devoted solely to the

       use of the public; but it means a place which is in point of fact public, as

       distinguished from private[;] a place that is visited by many persons, and

       usually accessible to the neighboring public.” Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2064 | April 30, 2019   Page 8 of 9
[17]   Here, Deputy Lenover testified that members of the local community are free to

       traverse the Walmart parking lot; and that, on the date in question—a holiday,

       approximately ten would-be patrons pulled into the parking lot and “realize[d]

       the store [wa]s not open.” Tr. Vol. II pp. 20, 25. Under the circumstances, we

       wholly find that the parking lot of a major shopping establishment is a place

       that members of the public are free to frequent without restraint. That Allgood

       was in the passenger compartment of his vehicle when he committed the

       charged offense is immaterial.


[18]   Fortunately, no one, except Deputy Lenover, witnessed Allgood’s activities;

       however, that does not absolve him, as the aim of the statute is to protect, from

       “reasonably foreseeable, potential witnessing,” non-consenting viewers who

       might deem Allgood’s conduct repugnant. See Lasko, 409 N.E.2d at 1130. The

       State presented sufficient evidence to prove that Allgood was in a “public

       place” when he committed the charged offense.


                                                 Conclusion
[19]   Sufficient evidence supports Allgood’s conviction. We affirm.


[20]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2064 | April 30, 2019   Page 9 of 9
