dissenting.
I respectfully dissent for two reasons:
1) the evidence was sufficient to sustain the conviction, and
2) the constitutional question was not properly preserved.
1.
Erhardt argues the trial judge was bewildered on the issue of nipple coverings and based his judgment solely upon the uncovering of the buttocks. She claims because she had minimal opaque covering on her buttocks, she satisfied the statute's minimum requirements. Thus, there was insufficient evidence upon which to convict her, she opines.
When we review for sufficiency of the evidence, we look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. We determine only whether there is substantial evidence of probative value from which the trier of fact could make its finding beyond a reasonable doubt. Hubbard v. State, (1982) Ind., 437 N.E.2d 52; Lenn v. State, (1982) Ind., 437 N.E.2d 56. If there is evidence of probative value to support the trial court's conclusion, the conviction will not be overturned. Copeland v. State, (1982) Ind.App., 430 N.E.2d 393.
*1127IND.CODE 85-45-4-1 reads in part as follows:
Sec. I. (a) a person who knowingly or intentionally, in a public place: ... (8) appears in the state of nudity; ... commits public indecency, a Class A misdemeanor.
(b) "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 breasts with less than a fully opaque covering of any part of the nipple, ....
From the evidence at trial, the court could reasonably find neither Erhardt's nipples nor her buttocks were covered with opaque material as required by the statute. Because it did so find, this case falls squarely within the proscription of the nudity statute. The evidence was sufficient to support Erhardt's conviction.
II.
In my opinion we cannot reach the First Amendment issue. A constitutional challenge to a statute must be raised by motion to dismiss filed prior to arraignment and plea or it is waived. IND.CODE 85-3.1-1-6(a)(8), IC 85-8.1-1-4(b), (now recodified at IC 85-84-1-6(a)(8), IC 85-84-1-4(b)). Marchand v. State, (1982) Ind.App., 435 N.E.2d 284, 287; Salrin v. State, (1981) Ind.App., 419 N.E.2d 1351, 1354.
My review of the record reveals the constitutional issue was first raised in Er-hardt's motion to correct errors. That was too late. The issue is waived on appeal.
For these reasons I would affirm the trial court's judgment.