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: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Carter N. 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: 4.2 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 1982 plainclothes officers went to the 

gallery. They were shown a photo album and the services 

available were explained. In February 1983 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: