                                                     No.    84-161

                       IN THE SUPREMF: COURT O THE STATE OF M N A A
                                              F              O T N

                                                            1985




STATE O MONTANA,
       F

                   Plaintiff            and R e s p o n d e n t ,

    -vs-

ERMA PONTIOUS BALDWIN,

                       D e f e n d a n t and A p p e l l a n t .




APPEAL FROM:              D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                          I n and f o r t h e County o f Lewis & C l a r k ,
                          The H o n o r a b l e Henry L o b l e , J u d g e p r e s i d i n g .


COUNSEL O RECORD:
         F


         For Appellant:


                       C a r t e r N.    P i c o t t e , ~ l a n c y ,Montana


         F o r Respondent :


                       Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                       Mike McGrath, County A t t o r n e y , H e l e n a , Montana




                                                     S u b m i t t e d on B r i e f s :   J u n e 1 9 , 1985

                                                                         Decided:         August 1, 1985


Filed:     4 . 2   i      1985



                                                     Clerk
5 . Justice William E. Hunt, Sr., delivered the Opinion of
the Court.


      The         appellant     was      convicted     of       the     crime    of
prostitution.          She was convicted by a jury at Justice Court
and by a jury on appeal to District Court.                      She now appeals
to this Court.
      We affirm.
        In    1982     the   Helena     Police    Department commenced           an
investigation to determine if illegal activity was being
conducted at the Velvet Touch Art Gallery.                            This gallery
offered nude dancing and body painting for hire.                        A sign on
the lobby wall described "super deluxe," a service offered,
as "mutual body painting using edible paints, mutual dancing,
model strips to edible bikini, two photos if desired, two
enjoyable hours."
        In September 1 9 8 2         plainclothes officers went to the
gallery.          They were shown a photo album and the services
available were explained.              In February 1 9 8 3 undercover agents
entered the gallery.                They were also shown the photo album
and the services available were explained.                      One agent paid
for a nude dance.            The agent returned to the gallery in March
1983.         He was legally equipped with an audio monitoring
device.           He requested a "super deluxe special," paid the
appellant, and was taken to a room.                  Both the agent and the
appellant became nude.                Massage, including massage of the
genitals, resulted             in    sexual    arousal.     When        the   agent
determined that sexual conduct was imminent, he gave a code
phrase and officers entered..                 The agent and appellant were
found        in    a   compromising      position.        The    appellant      was
arrested.          A search warrant was then obtained and certain
items were      seized   from the premises.       The items seized
included a photo album and a packaged condom.
      Prior to both trials the appellant moved to suppress
evidence, particularly         the photo album and cond.om.      The
motions were denied.      At both trials the questioned evidence
was admitted over objection.
      The issue on appeal is whether the District Court erred
in refusing to suppress the evidence and in admitting the
evidence over objection at trial.
      When an individual openly advertises mutual nude dancing
and   body   painting    for   a   price,   displays a photo    album
containing a photo of a prostrate nude male with erection and
genitals painted with body          paint, advertises edible body
paint and edible bikinis, takes money from another for the
services to be performed, escorts the customer to a private
room, clothes are removed, massage of the genitals results,
sexual arousal occurs, sexual intercourse is i-mminent, and
the individuals are found in a compromising position, there
is substantial evidence supporting the jury verdict that the
appellant committed the crime of prostitution in that she
agreed to have      sexual intercourse for compensation paid.
      The District Court judge found that the photo album and
condom   were    admissible     under   Rule   401, M.R.Evid.   that
provides as follows:
      "Rule 401. Definition of relevant evidence.
      Relevant evidence means evidence having any
      tendency to make the existence of any fact that is
      of consequence to the determination of the action
      more probable or less probable than it would be
      without the evidence.       Relevant evidence may
      include evidence bearing upon the credibility of a
      witness or hearsay declarant."
In State v. Fitzpatrick (1980) , 186 Mont. 187, 207, 606 P.2d
1343, 1354, this Court quoted with approval the comments to
Rule 401 of the Commission on Rule of Evidence:
    "The test of relevance is whether an items of
    evidence will have any value, as determined by
    logic and experience, in proving the proposition
    for which it is offered.     The standard used to
    measure this acceptable probative value is 'any
    tendency to make the existence of any fact          . . .
    more probable or less probable than it would be
    without the evidence.' This standard rejects more
    stringent ones which call for evidence to make the
    fact or proposition for which. it is offered more
    probable than any other. It is meant to allow wide
    admissibility of circumstantial evidence limited
    only by Rule 403 or other special relevancy rules
    in Article IV."
    We   find   that   the   photo   album   and   the condom were
probative on the question of whether prostitution was the
business regularly conducted on the premises.         This in turn
provided circumstantial evidence of what defendant agreed to
do in return for compensation in this case.
     The judgment of the District Court is affirmed.




We Concur:
