Duane R. Miller v. Barberton Municipal Court

PER CURIAM.

In this appeal, we consider whether appellant was denied his constitutional rights to due process or privacy when an Ohio court convicted him of public indecency.

I

At approximately 11:30 p.m. on August 6, 1988, appellant Duane Miller ("Miller”) and two friends arrived at the Loyal Oak Swim Club in Norton, Ohio. Miller had been to the pool at least twice before. He and his friends were “private club” members. This meant that they could enter the facility only after 11:00 p.m., when the regular or family members were required to leave. The owner of the facility allowed the private club members to swim in the nude.

The swimming pool was outside. It was surrounded by a chain-link fence which was partially covered with plastic. Neighbors could see into the pool area. Maxine Clapper testified that she lived about one-hundred feet from the pool and could see “right straight into the pool” from her kitchen window because her house sits higher than the fence. Transcript of Trial Proceedings at 7-9. Clapper also testified that on the night in question, the pool was lit up “like a football field.” Id. at 8. Elizabeth Rhodes testified that she could see directly into the pool area from her back yard because there was no plastic covering on the side of the pool facing her house. Id. at 33.

When he arrived at the swim club, Miller was wearing swim trunks underneath his street clothes. At his friends’ urging, however, Miller left his street clothes and other belongings on a table, walked to the pool with a towel around his waist and then removed his trunks at the edge of the pool before entering.

After swimming in the pool for awhile, Miller and his friends decided to go to the hot tub. Miller covered himself with a towel during his trip from the pool to the hot tub.

The next time Miller rose out of the hot tub, however, he did not cover himself with a towel. He walked five or ten feet in the nude and grabbed a towel which he then put around his waist. After drying himself off, Miller sat down to smoke a cigarette. *777At this point two policemen, who had been watching the activity in the pool area because of the neighbors’ complaints, arrested Miller and the other men who had been in the hot tub and charged them with public indecency.

The case came on for a non-jury trial in the Barberton Municipal Court. The Court found all defendants guilty and sentenced them each to thirty days in jail and imposed fines of $250.00. The Court suspended the jail time and $200.00 of the fines, however, on the condition that the defendants not swim nude at the Loyal Oak Swim Club for two years.

Miller appealed to the Ohio Court of Appeals, which affirmed his conviction. The Ohio Supreme Court denied leave to appeal.

Miller then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio on November 16, 1989. On June 11, 1990, the district court dismissed the petition.

Miller now appeals from the district court’s order denying his petition for a writ of habeas corpus. We have jurisdiction and for the reasons stated below, we affirm.

II

A

Miller initially argues that his conviction for public indecency violated his right to due process.

A conviction does not violate due process unless, after viewing the evidence in the light most favorable to the prosecution, the Court determines that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313, 99 S.Ct. 2781, 2785-86, 61 L.Ed.2d 560 (1979).

Miller argues that no rational trier of fact could have concluded that he was reckless with respect to whether he would be viewed by and affront others, as required by the public indecency ordinance.1 He contends that he took reasonable precautions against being viewed by others. He went to a private club.- The pool was not in what we typically think of as a residential area and it was surrounded by a fence that had a partial plastic covering. He covered himself with a towel at most times when he was outside of the water and he had only been to the pool two times before and had never heard of any neighbors taking offense to the nude swimming.

By looking (as we must) at the evidence in the light most favorable to the prosecution, however, we conclude that a rational trier of fact could have concluded that Miller was reckless. Under Ohio law, “[a] person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.” Ohio Rev.Code Ann. § 2901.22(C). Miller admits that he was nude in the pool area. He was a member of the club and had been there twice before. The testimony indicated that there were two homes within one-hundred feet of the pool. The pool was lit up like a “football field” on the night in question. The fence was only partially covered with plastic and was, therefore, ineffective as a means of preventing neighbors and others from viewing the pool area. A rational trier of fact could have concluded from these facts that Miller was reckless with regard to the risks of his conduct.

Three cases cited by Miller are inappo-site. Hearn v. District of Columbia, 178 A.2d 434 (D.C.1962) involved a defendant who was nude in a hotel room as opposed to an outdoor pool area next to homes. Duvallon v. State, 404 So.2d 196 (Fla.Dist.Ct.App.1981) is also inapposite because in *778that case the Florida statute provided, unlike the Ohio statute, that public nudity could only be prosecuted if the act was lewd or lascivious. Finally, State v. Goldsmith, No. 83-01-002 (Ohio Ct.App. June 30, 1983) (unreported), 1983 WL 4422, is likewise inapposite because the defendant in that case was 250 yards from a rest area parking lot and surrounded by bushes.

B

Miller next argues that his conviction for public indecency violated his right to privacy.

The Constitution “embodies a promise that a certain sphere of individual liberty will be kept largely beyond the reach of government.” Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772, 106 S.Ct. 2169, 2184-85, 90 L.Ed.2d 779 (1986). The outlines of this sphere are fairly clear, at least as they relate to this case. “A person has a constitutional right to be naked in a private place.” Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir.1970). Public nudity, however, can be banned. Erznoznik v. City of Jacksonville, 422 U.S. 205, 211 n. 7, 95 S.Ct. 2268, 2273-74 n. 7, 45 L.Ed.2d 125 (1975).

Miller was not in a private place. He was in an open, outdoor swimming area that was well lit and only partially enclosed with a plastic-covered fence. At least two homes stood within one-hundred feet of the pool area.

Accordingly, Miller’s conviction for public indecency did not violate his right to privacy.

AFFIRMED.

. The municipal ordinance is identical to the Ohio public indecency statute, which reads as follows:

(A) No person shall recklessly do any of the following, under circumstances in which his or her conduct is likely to be viewed and affront others, not members of his or her household:
(1) Expose his or her private parts, or engage in masturbation.

Ohio Rev.Code Ann. § 2907.09 (emphasis added).