ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOSEPH M. ROBERTSON JEFFREY A. MODISETT
Seymour, Indiana Attorney General of Indiana
RANDI E. FROUG
Deputy Attorney General
CRAIG E. WHATLEY, ) ) Appellant-Defendant, ) ) vs. ) No. 36A05-9806-CR-307 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
April 8, 1999
OPINION - FOR PUBLICATION
added). Characterizing his truck as a 'home on wheels' Whatley argues that he was not in a
public place within the meaning of the statute. Whatley acknowledges that a number of cases
involving public intoxication require a different interpretation. However, citing Long v.
State, 666 N.E.2d 1258 (Ind. Ct. App. 1996) Whatley contends the definition of public place
within the meaning of the public intoxication statute is different than that within the meaning
of the public indecency statute. In Long, a case involving public indecency, we held "a
public place is any place where members of the public are free to go without restraint." Id.
at 1261. According to Whatley his semi was not a public place because "'members of the
public' did not enter and exit or congregate within the cabin of his rig." Brief of Appellant
"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 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). Contrary to
Whatley's argument there 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.
We acknowledge that one's vehicle may indeed be a 'home on wheels' and thus under some circumstances riding in the buff presents no violation of law. See, e.g., Moore v. State, 634 N.E.2d 825, 827 (Ind. Ct. App. 1994) (holding that a residence is not a public place); Sloane v. State, 686 N.E.2d 1287, 1292 (Ind. Ct. App. 1997) (recognizing strong expectation of privacy in one's home). However, we have no hesitation concluding that a person driving a semi-trailer truck on this state's highways is in a public place, that is, a place where members of the public are free to go without restraint. Whatley's argument on this point fails.
Whatley next contends the evidence was insufficient to sustain his conviction. Whatley concedes that he "appeare[d] in a state of nudity."See footnote 1 He argues however that he was observed only because of the inspector's command to open his cab door. Whatley also argues
that he did not knowingly or intentionally commit a violation of law; rather he merely
showed a lapse of good judgment. Our standard of review is well settled. When reviewing
a claim of insufficient evidence we do not reweigh evidence or judge witness credibility.
Nield v. State, 677 N.E.2d 79, 81 (Ind. Ct. App. 1997). Rather, we consider only the
evidence favorable to the verdict and any reasonable inferences to be drawn therefrom. Id.
Contrary to Whatley's assertion it is not the observation of his nudity that the statute
proscribes. Rather the prohibition is against Whatley's appearance in a public place in a state
of nudity. The observation is simply evidence of that which occurred. As for Whatley's
second claim, the law presumes that a person intends the consequences of his act. Austin v.
State, 425 N.E.2d 736, 738 (Ind. Ct. App. 1981). Further, whether conduct is "knowingly"
and "intentionally" performed may be inferred from the voluntary commission of the
prohibited act as well as from the surrounding circumstances. Carty v. State, 421 N.E.2d
1151, 1155 (Ind. Ct. App. 1981). In this case the evidence of record is sufficient to show that
Whatley knowingly and intentionally appeared in a public place in a state of nudity.
DARDEN, J., concurs.
SULLIVAN, J., concurs in result with opinion.
COURT OF APPEALS OF INDIANA
CRAIG E. WHATLEY, )
vs. ) No. 36A05-9806-CR-307
STATE OF INDIANA, )
SULLIVAN, Judge, concurring in result
Notwithstanding my concurrence in Atkins v. State (1983) Ind.App., 451 N.E.2d 55, I am somewhat troubled by the extension of the public intoxication definition of public place to the public indecency statute. It appears that our past decisions in the public intoxication context have been driven by policy considerations. However, as noted by the majority, a public place must be accessible to the public, and I find it difficult to accept the premise that the inside of a closed vehicle traveling upon the highway is accessible to members of the public. Be that as it may, while I may at this point in time question whether an intoxicated person inside a closed vehicle is in a public place because the vehicle is
upon a public road accessible to members of the public, that is not the question before us.
The issue before us involves the public indecency statute.
As stated in Thompson v. State (1985) Ind.App., 482 N.E.2d 1372, 1375, (quoting Lasko v. State (1980) Ind.App., 409 N.E.2d 1124, 1128-29):
[The purpose of the statute is] to protect the non-consenting viewer who might find such a spectacle repugnant.See footnote 2
Common sense and human experience tells us that the usual highway vehicle traveler, whether walking, in an automobile, pick-up truck, or motorcycle would not have his moral sensibilities offended by the driver of a tractor-trailer rig who could not be viewed by the unsuspecting traveler. Only the occupant of a bigger big-truck or a low flying helicopter would be likely to observe defendant's bizarre lack of attire. In this context, therefore, as did our Supreme Court in Chubb v. State (1994) Ind., 640 N.E.2d 44, 47 reh'g denied, I would hold that while he was traveling upon the public highway in his vehicle, Whatley was not visible to the casual public eye and was therefore not in a public place.See footnote 3
The situation was relevantly altered, however, when Whatley knowingly drove his vehicle into the weigh station. Because operators of tractor-trailer rigs are required to stop
at such stations, there can be little doubt that Whatley knew of the likelihood that a motor
carrier inspector would approach his vehicle in that place accessible to all similar drivers and
that he might be requested to exit the vehicle.
It is this circumstance which permits me to agree with the conclusion that Whatley knowingly and intentionally appeared in a public place in a state of nudity and which permits me to concur in affirmance of the judgment.
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