FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

GREGORY BOWES    STEVE CARTER
Indianapolis, Indiana    Attorney General of Indiana
                
             MONIKA PREKOPA TALBOT
            Deputy Attorney General
Indianapolis, Indiana

II.    Whether the trial court properly denied Sloan’s motion for a directed verdict; and

III.    Whether the sentence imposed by the trial court is appropriate.

We affirm.
The facts most favorable to the jury’s verdict reveal that on December 9, 2001, Sloan broke into the home of Melissa Holt where eight-year-old A.R., the daughter of Holt’s boyfriend, was sleeping on the couch. A.R. awoke when she felt someone pull down her underwear. A.R. saw a man on the couch exposing and manipulating his penis. The man then left the room, and A.R. went to get her father, but the intruder was no longer in the home. Ms. Holt noticed that a window had been removed in the room where A.R. had been sleeping. Fingerprints taken from this window matched Sloan’s fingerprints. On July 5, 2002, the State charged Sloan with Burglary and Conducting a Performance Harmful to Minors.
Before trial, Sloan moved the trial court to dismiss the charges against him, arguing that the acts he was alleged to have committed did not constitute a “performance” as defined by statute. The trial court denied this motion. After the State presented its case-in-chief, Sloan moved for a directed verdict based upon the same grounds. This too was denied. Also at trial, a police detective testified that Sloan had been arrested during another investigation. Sloan objected and moved for a mistrial, which the trial court denied. The jury found Sloan guilty as charged, but the trial court entered a judgment of conviction only as to the burglary and sentenced Sloan to twenty years incarceration.

Sloan claims that because Green was a child abuse sex crimes detective and because he indicated that Sloan was arrested on another investigation, it follows that the jury would conclude that Sloan was arrested on another charge involving sexual child abuse. We note, however, that the detective did not state that he had arrested Sloan, but that Sloan was arrested on another investigation. Given that the trial court admonished the jury to disregard Green’s answer, and that all the jurors indicated that they could do so, we cannot say that the trial court abused its discretion in denying Sloan’s motion for a mistrial.

Upon appeal, the Riffel court, construing the definition of “performance” found in I.C. § 35-49-1-7, held that:
“the purpose of those statutes, and the legislative intent revealed by the language used, is to prohibit obscene performances of a theatrical, show, or entertainment nature, performed live, or on film or video, before an audience, and not to ban an act in a private setting, no matter how disgusting, such as the act charged against Riffel in Count IV. Riffel’s conduct may or may not have constituted some other offense, a matter we need not decide. The crucial issue is that it did not constitute a performance as defined by Indiana statutes. We may not expand the statutory definition.” 549 N.E.2d at 1088 (emphasis supplied).

The Riffel court distinguished the case before it from that present in Fultz v. State, 473 N.E.2d 624 (Ind. Ct. App. 1985), wherein the defendant stood before his bedroom window and masturbated while being observed by two individuals. Fultz was charged with engaging in an obscene exhibition, which required proof of an “obscene performance.” Id. at 629. The definition of performance in Fultz was the same as that at issue here. The Fultz court sustained the conviction against the defendant’s challenge that there was no “audience” and therefore no performance. Id. The Riffel court stated that “[t]he public nature of the acts committed by Fultz clearly are [sic] different from the private setting of the act charged against Riffel in Count VI [sic].” See footnote 549 N.E.2d at 1088-89 (emphasis supplied).
In Low, supra, the defendant was charged under I.C. § 35-49-3-2 after she engaged in a sexually suggestive dance, exposed her breasts, and masturbated in front of an undercover police officer while the two were in a hotel room. Upon appeal, Low cited Riffel in support of her argument that she did not engage in a performance as defined by I.C. § 35-49-1-7, in that the conduct alleged occurred in a private setting. The Low court rejected the State’s attempt to distinguish Riffel upon grounds that Low had engaged in her conduct for money. 580 N.E.2d at 739-40. The Low court reversed the conviction for obscene performance, noting “if the statute is not narrowly construed, conduct similar to the acts in this case occurring between consenting married adults would fall within the purview of the statute.” Id. at 740. The Low court also observed, “To hold differently in the present case might allow the extension of the proscriptive reach of the statute to conduct which is constitutionally protected.” Id.
Sloan contends that, like the conduct involved in Riffel and Low, what he did was done in a private setting, and therefore may not be held to constitute a performance. The State claims that the statute does not require that the performance take place in public. The State bases its argument upon I.C. § 35-49-3-3(a)(5), which prohibits knowingly or intentionally engaging or conducting “a performance that his harmful to minors in an area to which minors have visual, auditory, or physical access, unless each minor is accompanied by the minor’s parent or guardian.” According to the State, all it needed to prove in this respect was that A.R. had access to the area in which Sloan exposed himself. First, we note that this was not the language used to charge Sloan. More importantly, both section 3(a)(4), which contains the language used to charge Sloan, and 3(a)(5) require that a “performance” be engaged in or conducted. See footnote The State does not otherwise address Sloan’s argument that his conduct was not a performance.
If we were to read Riffel and Low broadly, we might agree with Sloan that what he did inside the Holt home, and what he intended to do when he broke into the house, was not a “performance” within the meaning of the statute because it did not take place “in public.” However, we perceive a subtle yet substantial difference between the factual situations present in Riffel and Low and the case at bar. In Riffel, the defendant’s conduct was done in his own private residence. 549 N.E.2d at 1086. In Low, although the conduct at issue did not occur in a private residence, it did take place in a hotel room which had been rented by the police. 580 N.E.2d at 738. In both cases, the incidents took place in private areas in which the participants had a right to be. This is not so in the present situation.
Here, Sloan violated the privacy of Ms. Holt and her guests by breaking into the home. The privacy interests with which the Riffel and Low courts were so concerned are therefore not implicated by Sloan’s actions. A defendant may not avail himself of the privacy of another by breaking and entering into the other’s home. To accept Sloan’s argument would be to allow him to benefit and seek refuge in the privacy of the home which he had invaded. We will not do so. Here, the evidence reveals that Sloan broke into the Holt home and pulled down A.R.’s underwear. Sloan then sat on the couch and exposed and manipulated his penis. This was an exhibition or presentation performed before an audience of one or more persons. See I.C. § 35-49-1-7. We do not read Riffel and Low to hold that a “performance” must be done in public, and to the extent that they suggest otherwise, we respectfully disagree. So long as the conduct at issue was not done in private, we hold that it may constitute a performance. See footnote
Of course, if something is done in private, it usually follows that it was not done in public. Here, however, we are presented with a perhaps unusual situation; although Sloan’s acts were not done in public, neither were they done in the privacy of his own home or any place where he had a right to be. We therefore hold that the actions Sloan engaged in inside a home into which he broke and entered constituted a performance, and from this the jury could reasonably infer that when Sloan broke and entered the home, he intended to commit the felony of conducting a performance harmful to minors. The evidence is sufficient to support Sloan’s conviction for Burglary, and the trial court did not err in denying his motion for a directed verdict.