No. 84-161
IN THE SUPREMF: COURT O THE STATE OF M N A A
F O T N
1985
STATE O MONTANA,
F
Plaintiff and R e s p o n d e n t ,
-vs-
ERMA PONTIOUS BALDWIN,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lewis & C l a r k ,
The H o n o r a b l e Henry L o b l e , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
C a r t e r N. P i c o t t e , ~ l a n c y ,Montana
F o r Respondent :
Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Mike McGrath, County A t t o r n e y , H e l e n a , Montana
S u b m i t t e d on B r i e f s : J u n e 1 9 , 1985
Decided: August 1, 1985
Filed: 4 . 2 i 1985
Clerk
5 . Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
The appellant was convicted of the crime of
prostitution. She was convicted by a jury at Justice Court
and by a jury on appeal to District Court. She now appeals
to this Court.
We affirm.
In 1982 the Helena Police Department commenced an
investigation to determine if illegal activity was being
conducted at the Velvet Touch Art Gallery. This gallery
offered nude dancing and body painting for hire. A sign on
the lobby wall described "super deluxe," a service offered,
as "mutual body painting using edible paints, mutual dancing,
model strips to edible bikini, two photos if desired, two
enjoyable hours."
In September 1 9 8 2 plainclothes officers went to the
gallery. They were shown a photo album and the services
available were explained. In February 1 9 8 3 undercover agents
entered the gallery. They were also shown the photo album
and the services available were explained. One agent paid
for a nude dance. The agent returned to the gallery in March
1983. He was legally equipped with an audio monitoring
device. He requested a "super deluxe special," paid the
appellant, and was taken to a room. Both the agent and the
appellant became nude. Massage, including massage of the
genitals, resulted in sexual arousal. When the agent
determined that sexual conduct was imminent, he gave a code
phrase and officers entered.. The agent and appellant were
found in a compromising position. The appellant was
arrested. A search warrant was then obtained and certain
items were seized from the premises. The items seized
included a photo album and a packaged condom.
Prior to both trials the appellant moved to suppress
evidence, particularly the photo album and cond.om. The
motions were denied. At both trials the questioned evidence
was admitted over objection.
The issue on appeal is whether the District Court erred
in refusing to suppress the evidence and in admitting the
evidence over objection at trial.
When an individual openly advertises mutual nude dancing
and body painting for a price, displays a photo album
containing a photo of a prostrate nude male with erection and
genitals painted with body paint, advertises edible body
paint and edible bikinis, takes money from another for the
services to be performed, escorts the customer to a private
room, clothes are removed, massage of the genitals results,
sexual arousal occurs, sexual intercourse is i-mminent, and
the individuals are found in a compromising position, there
is substantial evidence supporting the jury verdict that the
appellant committed the crime of prostitution in that she
agreed to have sexual intercourse for compensation paid.
The District Court judge found that the photo album and
condom were admissible under Rule 401, M.R.Evid. that
provides as follows:
"Rule 401. Definition of relevant evidence.
Relevant evidence means evidence having any
tendency to make the existence of any fact that is
of consequence to the determination of the action
more probable or less probable than it would be
without the evidence. Relevant evidence may
include evidence bearing upon the credibility of a
witness or hearsay declarant."
In State v. Fitzpatrick (1980) , 186 Mont. 187, 207, 606 P.2d
1343, 1354, this Court quoted with approval the comments to
Rule 401 of the Commission on Rule of Evidence:
"The test of relevance is whether an items of
evidence will have any value, as determined by
logic and experience, in proving the proposition
for which it is offered. The standard used to
measure this acceptable probative value is 'any
tendency to make the existence of any fact . . .
more probable or less probable than it would be
without the evidence.' This standard rejects more
stringent ones which call for evidence to make the
fact or proposition for which. it is offered more
probable than any other. It is meant to allow wide
admissibility of circumstantial evidence limited
only by Rule 403 or other special relevancy rules
in Article IV."
We find that the photo album and the condom were
probative on the question of whether prostitution was the
business regularly conducted on the premises. This in turn
provided circumstantial evidence of what defendant agreed to
do in return for compensation in this case.
The judgment of the District Court is affirmed.
We Concur: