dissenting.
I would reverse the trial court’s denial of Zitlaw’s motion to dismiss. The main rea*733son for my divergence from the majority’s opinion is my interpretation that “an area to which minors have visual, auditory, or physical access,” as included in the definition of the crime of conducting performance harmful to minors, requires the actual presence of minors that can see, hear, or feel the performance. Ind.Code § 35-49-3-3(5). I also interpret the language of this subsection as requiring the State to prove, beyond a reasonable doubt, that the minors are unaccompanied by their parent or guardian. Thus, I would conclude that any information charging a person with engaging or conducting a performance harmful to minors must identify by allegation at least one minor who saw, heard, or felt the performance, and allege that the minors were unaccompanied by their parent or guardian.
I. I.C. § 85-⅛9-3-3(5) Requires the Presence of Minors
When reviewing the statute, I note that the subsections begin by prohibiting certain behavior in areas where minors have “visual, auditory, or physical access.” I.C. § 35-49-3-3(2) & (5). Our legislature has not defined what is meant by “access.” Undefined words in a statute are usually given their plain, ordinary and usual meaning. See I.C. § l-l-4-l(c). Courts may consult English language dictionaries to ascertain the plain and ordinary meaning of a statutory term. Stratton v. State, 791 N.E.2d 220, 224 (Ind.Ct.App.2003). This is how the majority develops its interpretation that access as included in the statute means “permission, liberty, or ability to enter, approach, or pass to and from a place or to approach or communicate with a person or thing.” Op. at 730. Applying this definition, the majority concludes that minors need not be present to see, hear, or feel a performance unsuitable for minors for it to be harmful to them, and thus a Class D felony.
However, predictable situations can be anticipated when consenting adults will engage in certain behavior not suitable for minors in places where minors have the ability to be present, but are not. I conclude that our legislature did not intend to criminalize such actions. For example, taking the majority’s interpretation and applying it to subsection I.C. § 35-49-3-3(2), which also requires “visual, auditory, or physical access,” an adult in any public area who shows another adult friend a small pornographic picture which displays a woman’s naked breasts has committed dissemination of matter harmful to minors, a Class D felony, even if at the time of the display no minor is located within miles of the two adults.8 Furthermore, a married couple that engages in sexual conduct while tent camping in a secluded wilderness area that is open to the public would be committing a Class D felony pursuant to the majority’s interpretation of I.C. § 35-49-3-3(5) regardless of how careful they are to be sure no minors are anywhere close to their campsite. What is more, fully clothed amorous young adults, located in an out-of-the-way area of a public park, that engage in kissing that most adults would consider too passionate for younger eyes could be arrested as felons *734by the majority’s interpretation although no minors observe their actions.
For this reason, I believe we should be guided by the logic of our court in Low v. State, 580 N.E.2d 737 (Ind.Ct.App.1991), an appeal from a conviction for an “obscene performance.” In Low, a police officer called a woman to his hotel room where she showed him her breasts and fondled herself. We held that unless the statute was narrowly construed, conduct similar to the acts in that case occurring between consenting married adults would fall within the purview of the statute. Id. at 740. “We may give narrow construction to statutes to save them from nullification if the construction does not establish a new or different policy basis and is consistent with legislative intent.” Id.; see also Brown v. State, 868 N.E.2d 464, 469 (Ind.2007) (holding that the criminal confinement statute, “as to its inclusion of the words ‘fraud’ and ‘enticement,’ is void for vagueness,” because the common meaning of those words as ascertained from an English language dictionary would lead to arrests and convictions for trivial acts or encourage arbitrary or discriminatory enforcement). Moreover, penal statutes, such as the statute at issue, are to be strictly construed against the State; any ambiguity must be resolved against imposing the penalty, and only those cases which are clearly within its meaning and intention can be brought within the statute. State v. D.M.Z., 674 N.E.2d 585, 588 (Ind.Ct.App.1996), trans. denied.
In determining what our legislature has intended by the word “access,” I choose first to look to the words preceding it. A method to determine the meaning of doubtful words is by reference to their relationship with other associated words and phrases. Id. By stating the types of access as being “visual, auditory, or physical,” the legislature has identified three separate sensory modes by which minors will become aware of the harmful performance: sight, sound, and touch. Therefore, I conclude that “access,” as used in subsection I.C. § 35-49-3-3(5), denotes something more than permission, liberty or ability to be present in the area; it requires actual presence of a minor to see, hear, or feel the performance.
Further, I note that the title of the statute is “Dissemination of matter or conducting performance harmful to minors.” I.C. § 35-49-3-3. “If the language of a statute is ambiguous or doubtful, reference may be made to its title in ascertaining the legislative intention.” Miles v. Dep’t of Treasury, 209 Ind. 172, 184, 199 N.E. 372, 377 (1935). I conclude that the behavior proscribed cannot be harmful to minors if minors do not hear, see, or feel it. Indiana Code section 35-49-2-2 defines when a matter or performance is harmful to minors. The statute requires, among other things, that the matter or performance is “patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors.” I.C. § 35-49-2-2(3) (emphasis added). The focus of the statute is to outlaw behavior, not because it is generally offensive or obscene, but because such behavior is not suitable for minors. This supports my conclusion that our legislature’s intent was to outlaw the proscribed behavior only when minors are actually present to see, hear, or feel it.
Moreover, I.C. § 35^49-3-3(5) requires a “performance.” A “performance” is statutorily defined in Indiana Code Article 49 as “any play, motion picture, dance, or other exhibition or presentation, whether pictured, animated, or live, performed before an audience of one (1) or more persons.” I.C. § 35-49-1-7. I would conclude that the requirement of a “performance,” described as exhibition or *735presentation, which in turn requires an audience, further supports my interpretation that our legislature intended that the conduct proscribed by I.C. § 35-49-3-3(5) be seen, heard, or felt by minors before it can be considered criminal.9
II. The State Must Allege the Minors Were Not Accompanied by Parents or Guardians
Further, I believe the information filed by the State is insufficient for failing to allege that minors were not accompanied by their parents or guardians. I.C. § 35-49-3-3(5) contains a caveat which negates the criminality of engaging in the prohibited conduct: “unless each minor is accompanied by the minor’s parent or guardian.” I conclude that this clause constitutes an element of the crime performance harmful to minors. An element has been defined as “[a] constituent part of a claim that must be proved for the claim to succeed.” Black’s Law Dictionary 559 (8th ed.2004). For the State to successfully prove its claim of performance harmful to minors, they must prove the minors — which they should have alleged were present, but did not — were unaccompanied by their parents or guardians. Therefore, I find that the State’s Information fails to comport with the requirements of Indiana Code section 35-34-1-2, which requires that an information set forth the nature and elements of the offense charged. See Miller v. State, 634 N.E.2d 57, 60 (Ind.Ct.App.1994).
Finally, as the majority explains, “[a] charging information must allege the elements of the crime such that the accused is sufficiently apprised of the nature of the charges against him so that he may anticipate the proof and prepare a defense in advance of trial.” Op. at 731 (quoting Winn v. State, 748 N.E.2d 352, 356 (Ind. 2001); I.C. § 35-34-1-2). Regardless of whether the language “unless each minor is accompanied by the minor’s parent or guardian” is viewed as an element of the crime or as an affirmative defense, I conclude that this language requires the State to allege in a charging information specific minors who were unaccompanied by parent or guardian so that Zitlaw may defend himself, either by disputing the sufficiency of the State’s evidence, or by presenting his own evidence which proves that the minors were accompanied by parents or guardians.
Based on the foregoing, I would reverse the trial court’s denial of Zitlaw’s motion to dismiss and remand for further proceedings on the other charges against him.
. "Matter” for this statute includes "any picture.” I.C. § 35-49-1-3. The picture is "harmful to minors” if:
(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sadomasochistic abuse;
(2) considered as a whole, it appeals to the prurient interest in sex of minors;
(3) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors; and
(4) considered as a whole, it lacks serious literary, artistic/political, or scientific value for minors.
I.C. § 35-49-2-2.
. Even accepting the majority’s interpretation for sake of argument, I note from the facts presented to us in the limited pre-trial record that Deputy Clifford kneeled before Zitlaw, placing his face level with Zitlaw's penis. I interpret Deputy Clifford's action as one of participation, making Deputy Clifford a participant and not an audience; therefore, the State has not alleged a performance as required by I.C. § 35-49-3-3(5).