MEMORANDUM DECISION
                                                                 Jun 16 2015, 8:55 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Cara Schaefer Wieneke                                     Gregory F. Zoeller
Wieneke Law Office, LLC                                   Attorney General of Indiana

                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Anthony M. Cleveland,                                    June 16, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1501-CR-26
        v.                                               Appeal from the Vigo County
                                                         Superior Court
State of Indiana,                                        The Honorable David R. Bolk,
                                                         Judge
Appellee-Plaintiff
                                                         Case No. 84D03-1301-FD-215




Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1501-CR-26 | June 16, 2015      Page 1 of 5
                                          Case Summary
[1]   Anthony M. Cleveland appeals his conviction for Class D felony battery of a

      child. He challenges the sufficiency of the evidence supporting his conviction

      by raising the parental-privilege defense. Given that Cleveland raises this

      defense for the first time on appeal and because there is no evidence to support

      it, we affirm.



                            Facts and Procedural History
[2]   In January 2013 nine-year-old T.C. was living with Cassandra Ryan, his

      guardian. Cassandra was dating Cleveland at the time. One evening, T.C.,

      Cassandra, and Cleveland attended a gathering at a nearby home. The adults at

      the gathering, including Cleveland, were drinking alcohol. Tr. p. 69, 79.

      Around midnight, when Cleveland told T.C. it was time to go home, T.C.

      began to whine and told Cleveland that he did not want to go. Id. at 39. T.C.

      “shrugged away” from Cleveland and began to yell. Id. at 73. Cleveland

      became angry, grabbed T.C., and pushed him until he fell down. Id. at 73, 81,

      90. Cleveland also put his hands around T.C.’s neck for about ninety seconds,

      which hurt the child. Id. at 33-34, 73, 90, 91. T.C., scared and crying, did not

      fight back. Id. at 90.


[3]   Another adult, Eric Poole, intervened. Id. at 75, 92. Cleveland spit in Eric’s

      face and the two men began to fight outside. Id. at 75-76. After another adult

      fired a gun, a neighbor called police. Id. at 44, 77. When police arrived, they


      Court of Appeals of Indiana | Memorandum Decision 84A01-1501-CR-26 | June 16, 2015   Page 2 of 5
      observed red finger marks on T.C.’s neck “consistent with someone being

      grabbed by the throat.” Id. at 63, 65.


[4]   The State charged Cleveland with Class D felony battery of a child. At his jury

      trial, Cleveland disputed the State’s claim that he put his hands on T.C.’s neck

      and attempted to discredit the State’s witnesses. Cleveland was convicted as

      charged, and the trial court sentenced him to eighteen months in the Indiana

      Department of Correction. See Appellant’s App. p. 125-26.


[5]   Cleveland now appeals.



                                 Discussion and Decision
[6]   Cleveland challenges the sufficiency of the evidence supporting his conviction

      by raising the parental-privilege defense. In asserting the defense, Cleveland

      argues that he was a person acting in loco parentis, or in place of a parent.


[7]   To convict Cleveland as charged, the State was required to prove beyond a

      reasonable doubt that he knowingly or intentionally touched another person

      less than fourteen years old in a rude, insolent, or angry manner. See Ind. Code

      Ann. § 35-42-2-1(a)(2)(B) (West 2012); Appellant’s App. p. 11 (charging

      information). However, “[a] person is justified in engaging in conduct

      otherwise prohibited if he has legal authority to do so.” Ind. Code § 35-41-3-1.

      This statute has been interpreted to provide legal authority for parents to engage

      in reasonable discipline of their child, even if such conduct would otherwise

      constitute battery. State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008),

      Court of Appeals of Indiana | Memorandum Decision 84A01-1501-CR-26 | June 16, 2015   Page 3 of 5
      reh’g denied. Thus, “[a] parent is privileged to apply such reasonable force or to

      impose such reasonable confinement upon his . . . child as he . . . reasonably

      believes to be necessary for [the child’s] proper control, training, or education.”

      Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008) (quotation omitted). Custodians

      who are persons in loco parentis have the right to use reasonable corporal

      punishment on a child. McReynolds v. State, 901 N.E.2d 1149, 1153 (Ind. Ct.

      App. 2009).


[8]   The defense of parental privilege, like self-defense, is a complete defense to

      battery of a child. Willis, 888 N.E.2d at 182. “[T]o sustain a conviction for

      battery where a claim of parental privilege has been asserted, the State must

      prove that either: (1) the force the parent used was unreasonable or (2) the

      parent’s belief that such force was necessary to control her child and prevent

      misconduct was unreasonable.” Id. The State may refute a parental-privilege

      claim by direct rebuttal or by relying upon the sufficiency of the evidence in its

      case-in-chief. Id.


[9]   But here, Cleveland did not assert the parental-privilege defense at trial. As a

      result of this failure, he has waived this claim. See Lafary v. Lafary, 476 N.E.2d

      155, 159 (Ind. Ct. App. 1985) (holding that affirmative defenses cannot be

      raised for the first time on appeal). Waiver notwithstanding, there is simply no

      evidence to support Cleveland’s claim that he was a person acting in loco

      parentis. Although Cleveland was romantically involved with T.C.’s guardian

      Cassandra, there is no evidence that he had the responsibilities of a father or

      stepfather, made parenting decisions regarding T.C., or otherwise behaved as a

      Court of Appeals of Indiana | Memorandum Decision 84A01-1501-CR-26 | June 16, 2015   Page 4 of 5
father to the child. We therefore affirm Cleveland’s Class D felony battery

conviction.


Affirmed.


Kirsch, J., and Bradford, J., concur.




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