No. 84-161 IN THE SUPREMF:COURT OF THE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiff and Respondent,
-vsERMA PONTIOUS BALDWIN, Defendant and Appellant.

APPEAL FROM: DistrictCourt of theFirstJudicialDistrict, In and forthe County of Lewis & Clark, The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
CarterN. Picotte, ~lancy, Montana
For Respondent:
Mike Greely, Attorney General, Helena, Montana Mike McGrath, County Attorney, Helena, Montana

Submitted on Briefs: June 19, 1985 Decided: August 1, 1985
Filed: 4.2i 

## 1985

Clerk5.Justice William E. Hunt, Sr., delivered the Opinion of theCourt.

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 DistrictCourt. She now appeals to thisCourt. 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 "mutualbodypainting using ediblepaints, mutual dancing, model strips to edible bikini, two photos if desired, two enjoyablehours." In September 1982 plainclothes officers went to the gallery. They were shown a photo album and the services availablewere explained. In February 1983undercoveragents entered the gallery. They were also shown the photo album and the services available were explained. One agent paid for anude dance. The agent returned to the gallery inMarch 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 certainitems were seized from the premises. The items seized included aphoto album and apackaged 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 iswhether the District Court erred in refusing to suppress the evidence and in admitting the evidence over objectionat trial. When an individual openly advertises mutual nudedancing and body painting for a price, displays a photo album containingaphoto of aprostrate 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 juryverdict 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 thephoto album and condom were admissible under Rule 401, M.R.Evid. that provides as follows: "Rule 401. Definition of relevantevidence. 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 credibilityof a witness orhearsay declarant."In Statev. Fitzpatrick (1980)

### ,186Mont. 187, 207, 606 P.2d 1343, 1354, this Court quoted with approval the comments to Rule 401 of the CommissiononRule 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 oneswhich call for evidence tomake the fact or proposition for which.it is offered more probable than any other. It ismeant to allowwide admissibility of circumstantial evidence limited only by Rule 403 or other special relevancy rules inArticle 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 judgmentof theDistrict Court is affirmed.

We Concur: