IC § 35-45-4-1.5. Public nudity.

(a) As used in this section, “nudity” has the meaning set forth in section 1(d) [IC 35-45-4-1(d)] of this chapter.

(b)  A person who knowingly or intentionally appears in a public place in a state of nudity commits public nudity, a Class C misdemeanor.

(c)  A person who knowingly or intentionally appears in a public place in a state of nudity with the intent to be seen by another person commits a Class B misdemeanor.

(d)  A person who knowingly or intentionally appears in a state of nudity:

(1)  in or on school grounds;

(2)  in a public park; or

(3)  with the intent to arouse the sexual desires of the person or another person, in a department of natural resources owned or managed property;

commits a Class A misdemeanor. However, the offense is a Level 6 felony if the person has a prior unrelated conviction under this subsection or under subsection (c).

IC § 35-45-4-1(d) – As used in this section, “nudity” means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state.

Notes

– “Public place” for purposes of public nudity and public intoxication are not necessarily the identical.

– Most of the cases I have seen for public nudity are people who are urinating in public, often in an alley or at an outdoor concert. In Indiana, it is not illegal to urinate in public. If an officer makes an arrest for public nudity after observing an individual urinating in public, if no one actually saw genitalia, the evidence is insufficient for a conviction.

Case Law

– Public nudity statute, IC 35-45-4-1.5(c), was not void for vagueness, as it sufficiently apprised defendant that being visibly nude to persons in a public place, which included defendant’s front yard, violated the statute. The State was also required to prove beyond a reasonable doubt that Weideman had an “intent to be seen by another person” in order to convict Weideman of public nudity as a Class B misdemeanor. I.C. § 35-45-4-1.5(c). During the trial, Bowser testified that it was dark outside, and when he turned his truck lights on, Weideman had a panicked look on his face and “he turned to the ditch and just dropped, he just, like fell down and rolled.” (Tr. p. 7). “[H]e dropped and rolled into the ditch and then he crawled on his hands and knees down the ditch to the back of the property.” (Tr. p. 8). Weideman testified at the trial that he did not want to be seen. (Tr. p. 29). Based on our review of the record, we conclude that the State presented insufficient evidence to prove beyond a reasonable doubt that Weideman intended to be seen. Therefore, we must reverse Weideman’s conviction for public nudity, as a Class B misdemeanor. “When a conviction is reversed because of insufficient evidence, we may remand for the trial court to enter a judgment of conviction upon a lesser-included offense if the evidence is sufficient to support the lesser offense.” The lesser-included offense is factually included in the crime charged if the charging instrument alleged that the means used to commit the crime included all the elements of the alleged lesser-included offense. Id. Here, the Information alleged that Weideman appeared in a state of nudity in a public place with the intent to be seen by another. (Appellant’s App. p. 7). In addition to the Class B misdemeanor that Weideman was charged with, the public nudity statute also provides that “[a] person who knowingly or intentionally appears in a public place in a state of nudity commits public nudity, a Class C  [34]  misdemeanor.” I.C. § 35-45-4-1.5(b). The evidence presented by the State was sufficient to support a conviction of Weideman for public nudity as a Class C misdemeanor, and that crime was factually included in the allegations of the charging Information. Accordingly, we remand to the trial court with instructions to enter a judgment convicting Weideman of public nudity, as a Class C misdemeanor, and to resentence Weideman. Weideman v. State, 890 N.E.2d 28 (Ind. Ct. App. 2008).

– Evidence was sufficient to find the juvenile committed public nudity, in violation of IC 35-45-4-1.5, because, when an officer was asked if he saw the juvenile’s nipple, which constituted nudity under IC 35-45-4-1(d), the officer responded in the positive.  C.T. v. State, 939 N.E.2d 626, 2010 Ind. App. LEXIS 2371 (Ind. Ct. App. 2010).

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