{ "id": 8721587, "name": "Sonia YOUNG v. STATE of Arkansas", "name_abbreviation": "Young v. State", "decision_date": "1985-07-08", "docket_number": "CR 85-51", "first_page": "413", "last_page": "419", "citations": [ { "type": "official", "cite": "286 Ark. 413" }, { "type": "parallel", "cite": "692 S.W.2d 752" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "92 Cal. Rptr. 880", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1971, "opinion_index": 0 }, { "cite": "14 Cal. App.3d 952", "category": "reporters:state", "reporter": "Cal. App. 3d", "year": 1971, "opinion_index": 0 }, { "cite": "499 F. Supp. 655", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1447196 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/f-supp/499/0655-01" ] }, { "cite": "452 U.S. 67", "category": "reporters:federal", "reporter": "U.S.", "year": 1981, "opinion_index": 0 }, { "cite": "435 U.S. 923", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2625, 3047, 3053, 2448, 2420, 2709, 2262, 2455, 2681, 2298, 2591 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/435/0923-05", "/us/435/0923-09", "/us/435/0923-11", "/us/435/0923-02", "/us/435/0923-10", "/us/435/0923-04", "/us/435/0923-03", "/us/435/0923-07", "/us/435/0923-08", "/us/435/0923-01", "/us/435/0923-06" ] }, { "cite": "561 F.2d 735", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 882525 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f2d/561/0735-01" ] }, { "cite": "681 F.2d 1362", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 544002 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/f2d/681/1362-01" ] }, { "cite": "605 F.2d 144", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1444643 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/605/0144-01" ] }, { "cite": "632 S.W.2d 516", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9944826 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/sw2d/632/0516-01" ] }, { "cite": "276 Ark. 56", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751505 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/276/0056-01" ] }, { "cite": "675 S.W.2d 384", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9937603 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/sw2d/675/0384-01" ] }, { "cite": "283 Ark. 327", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879977 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/283/0327-01" ] } ], "analysis": { "cardinality": 565, "char_count": 9441, "ocr_confidence": 0.913, "pagerank": { "raw": 7.168668855370785e-08, "percentile": 0.4291476066751382 }, "sha256": "b084bfcc661718c41a21ffca009622d3850379fef96bd158eeaf2653a6ed8f93", "simhash": "1:65fe0f8063ae0c2e", "word_count": 1537 }, "last_updated": "2023-07-14T20:29:09.553890+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Dudley, J., not participating." ], "parties": [ "Sonia YOUNG v. STATE of Arkansas" ], "opinions": [ { "text": "Steele Hays, Justice.\nAppellant, Sonia Young, was charged and convicted of indecent exposure under Ark. Stat. Ann. \u00a7 41-1812 (Repl. 1977), for nude dancing in a local nightclub. Appellant challenges the conviction on essentially two grounds: first, that her behavior did not constitute an offense under the statute and second, that her conduct was protected under the First Amendment. We find no merit in either contention.\nArk. Stat. Ann. \u00a7 41-1812 provides:\nIndecent exposure. (1) A person commits indecent exposure if, with purpose to arouse or gratify the sexual desire of himself or of any other person, he exposes his sex organs:\n(a) a public place or public view; or\n(b) under circumstances in which he knows his conduct is likely to cause affront or alarm.\n(2) Indecent exposure is a class A misdemeanor.\nAppellant raises four points in her argument that her behavior did not constitute an offense under the statute. She contends first that the purpose of the statute is to criminalize the conduct of \u201cflashers\u201d and not nude dancers. The Commentary to the statute, however, makes it quite clear that appellant\u2019s dancing was indeed intended to be covered by the statute:\n\u201cIf an exhibition covered by subsection (b) occurs in a public place or in public view, then the actor also falls within subsection (a). However, subsection (a) is primarily directed at the professional exhibitionist before a willing audience whose reaction to the exposure of sex organs is likely to be quite the opposite of affront or alarm.\u201d\nAppellant next argues her performance did not occur in a public place or public view. Ark. Stat. Ann. \u00a7 41-1801(6) defines public place as one publicly or privately owned \u201cto which the public or substantial numbers of people have access.\u201d The Commentary notes:\n\u201cPublic place\u201d is defined broadly to include any locality to which substantial numbers of people have access ... As expressly stated in the definition, whether the property is publicly or privately owned is not a determinative factor. Hence a bar or even a private club can be a \u201cpublic place\u201d if open to substantial numbers of people. Implicit in the definition of public place is that it must be accessible to substantial numbers of people at any one time. A place that is licensed to the general public, but is available to only a few members of the public at any one time, as for example a motel or hotel room, is not a \u201cpublic place.\u201d\nThe establishment in this case was a public tavern, not a private club, and at the time of the arrest was serving thirty to forty patrons. Appellant does not deny the bar was a public place but asks us to narrow the definition to exclude establishments that limit their fare only to consenting adults and forewarned viewers. This proposition is contrary to the stated intent of the statute and one more appropriately addressed to the legislature than to the courts.\nAppellant claims her actions did not involve the exposure of her sexual organs. She concedes her pubic area was exposed, but her sex organs \u201cscrupulously were not.\u201d There is no testimony to support that contention however and the arresting officer testified that people were sitting below the stage and from that position anyone could see the vaginal area or labia.\nAs her last point in this argument, appellant insists there was no proof she was dancing to arouse or gratify the sexual desires of herself or others. We have said one\u2019s intent or purpose ordinarily cannot be shown by direct evidence but must be inferred from the facts and circumstances shown in evidence. Owens v. State, 283 Ark. 327, 675 S.W.2d 384 (1984); Johnson & Carrol v. State, 276 Ark. 56, 632 S.W.2d 516 (1982). Here there was a sign outside the building advertising nude dancing with the silhouette of a dancing woman painted on the building. Inside there was a stage where appellant performed. The arresting officer testified appellant removed a brief outfit and while dancing ran her hand over her breast, down over her stomach and rubbed herself on the inner thigh below the vaginal area. As mentioned earlier, there were thirty to forty patrons in the tavern at the time. From the circumstances in their entirety it is a fair inference that appellant\u2019s purpose was to arouse or gratify the sexual desires of others.\nAppellant\u2019s remaining constitutional arguments are premised on the argument that her behavior was \u201cmere nude dancing\u201d and entitled to First Amendment protection under the Constitution of the United States. We do not take issue with that contention, except to note that the statute and activity in this case do not deal merely with nudity or nude dancing, but with something more as proscribed by the statute. Appellant makes no argument that the proscribed activity under the statute is entitled to First Amendment protection, only that mere nude dancing is entitled to such protection. As we have said, appellant\u2019s conduct in this case was not simply nudity, but conduct that came within the proscriptions of Ark. Stat. Ann. \u00a7 41-1812. As we hold appellant\u2019s conduct not to be mere nudity, and since appellant does not argue the proscribed activity under the statute is constitutionally protected, there is no need to address the remaining aspects of the arguments.\nThe court suspended imposition of appellant\u2019s sentence for one year on condition that she \u201cnot display herself in a public place for commercial exploitation or sales promotion\u201d nor \u201cdisplay herself nude in bars or beer joints.\u201d Appellant challenges this condition as a prior restraint in violation of the First Amendment.\nArk. Stat. Ann. \u00a7 41-1203, conditions of suspension or probation, states in part that the court \u201cshall attach such conditions as are reasonably necessary to assist the defendant in leading a law-abiding life.\u201d The statute lists some of the possible conditions the court may attach, including that a defendant be required to \u201crefrain from frequenting unlawful or designated places or consorting with designated persons,\u201d and \u201cany other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty . .\nThe broad objectives sought by probation are education and rehabilitation, and the conditions of probation and suspension should promote those objectives. It is generally held that conditions for probation will be upheld if they bear a reasonable relationship to the crime committed or to future criminality. 21 Am. Jur. 2d \u00a7 570. Additionally, a condition of a probation or suspension is not necessarily invalid simply because it restricts a probationer\u2019s ability to exercise constitutionally protected rights. Id; U.S. v. Tonry, 605 F.2d 144 (5th Cir. 1979); Owens v. Kelley, 681 F.2d 1362 (11th Cir. 1982); U.S. v. Pierce, 561 F.2d 735, cert. den., 1978, 435 U.S. 923 (9th Cir. 1977).\nIn this case, the activity prohibited by the conditions imposed might well involve some protected forms of expression. See, Schad v. Borough of Mount Ephraim, 452 U.S. 67 (1981); Wild Cinemas of Little Rock, Inc. v. Bentley, 499 F. Supp. 655 (1980). Yet our greater concern with this condition is that it may be vague and overbroad. See, In Re Mannino, 14 Cal. App.3d 952, 92 Cal. Rptr. 880 (1971); Tonry, supra. It includes areas of First Amendment protection and other activities as well, that may have no relationship to appellant\u2019s crime, rehabilitation or future criminality. And while a condition of probation or suspension may affect the exercise of a constitutional right within certain limits, those limits include a requirement that it bear a reasonable relationship to the crime and to future criminality.\nU.S. v. Tonry, supra, adopts a test developed by the Ninth Circuit to determine whether a probation condition is unduly intrusive on constitutional rights:\nThe conditions must be \u201creasonably related to the purposes of the act.\u201d Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.\nInsofar as the condition imposed here includes prohibition from a nude display for \u201ccommercial exploitation or sales promotion,\u201d we find the order too broad, vague and insufficiently tailored to bear a reasonable relationship to probation/suspension objectives of rehabilitation and future criminality. That part of the order that prohibits appellant from appearing nude in bars or beer joints is valid. Granted, the condition may involve some infringement on the exercise of appellant\u2019s First Amendment rights, as would be determined by the form of expression appellant\u2019s dancing might take, but it nevertheless is reasonably related to the offense and to rehabilitation. As to the other guidelines stated in Tonry, we find the limitation on appellant neither harsh nor unduly restrictive, and the purposes of enforcement of the law appellant violated are served. The condition of probation, to the extent necessary to bring it into compliance with this opinion, is modified and the judgment is affirmed.\nAffirmed.\nDudley, J., not participating.", "type": "majority", "author": "Steele Hays, Justice." } ], "attorneys": [ "John Wesley Hall, Jr., for appellant.", "Steve Clark, Att\u2019y Gen., by: Connie Griffin, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Sonia YOUNG v. STATE of Arkansas\nCR 85-51\n692 S.W.2d 752\nSupreme Court of Arkansas\nOpinion delivered July 8, 1985\nJohn Wesley Hall, Jr., for appellant.\nSteve Clark, Att\u2019y Gen., by: Connie Griffin, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0413-01", "first_page_order": 445, "last_page_order": 451 }