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
