MEMORANDUM DECISION
                                                                   Jun 17 2015, 8:04 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                                    ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                         Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Etelvina Abrego,                                         June 17, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1411-CR-511
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Helen W. Marchal,
State of Indiana,                                        Judge.
Appellee-Plaintiff                                       Cause No. 49G16-1407-F6-35648




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-511 | June 17, 2015       Page 1 of 6
[1]   Etelvina Abrego appeals her conviction for Battery,1 a Class A misdemeanor.

      She argues that the evidence was insufficient to disprove her parental privilege

      defense. Finding sufficient evidence, we affirm.


                                                       Facts
[2]   In July 2014, Abrego and her Daughter, A.A,2 were living in a home with

      Maria Villa Lobos and her four children. On July 13, 2014, A.A. came into the

      house and hugged Lobos. Lobos thought that A.A. looked scared. Abrego

      entered the kitchen, grabbed A.A. by the arm, and began admonishing her

      harshly.


[3]   Abrego then dragged A.A. into the living room. At this time, A.R., Lobos’s

      oldest child, was also in the living room. Abrego hit A.A. with a phone charger

      cord four or five times. She also struck A.A. on the lips and on the stomach.

      A.A. screamed in pain.


[4]   A.R., who witnessed the incident, called the police the next day, July 14.

      Officer Aaron Helton met with A.R. and Lobos away from the home. Officer

      Helton then went to the home, where he knocked on the door. A.A. answered

      his knock, and Officer Helton noticed that her lip was swollen and that she had

      a red mark under her lip. Abrego was arrested, and she resisted. Three officers




      1
          Ind. Code § 35-42-2-1.
      2
       Although A.A.’s date of birth was not introduced into evidence at trial, there was circumstantial evidence to
      show that A.A. was under the age of fourteen.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-511 | June 17, 2015               Page 2 of 6
      were necessary to restrain her, and she kicked Officer Scott Bohan in the legs

      and feet.


[5]   Later, Natalee Hoover, a Department of Child Services (DCS) employee,

      examined A.A. Hoover took photographs of A.A.’s lower lip, which was

      swollen and bruised. In addition, A.A had a long mark on her stomach that

      was several inches in length. She also had a scratch mark on her face, puffiness

      around her right eye, and bruises and marks on the inside of her forearm.

      Hoover also identified “loop marks” on A.A.’s back that appeared to have been

      inflicted earlier than the other injuries. Tr. p. 98.


[6]   On July 17, 2014, the State charged Abrego with Level 6 felony battery and

      Class A misdemeanor resisting arrest. On October 7, 2014, a bench trial was

      held. Abrego moved for an involuntary dismissal on the felony battery charge,

      and the trial court found that the State had failed to meet its burden on the

      Level 6 felony battery charge. However the trial court determined that the State

      could go forward with the lesser included Class A misdemeanor battery.


[7]   At trial, Officer Helton, Officer Bohan, and Hoover testified for the State. The

      defense called no witnesses. During closing argument, counsel for the defense

      asserted that Abrego’s actions amounted to reasonable parenting. The State

      objected, arguing that a parental privilege defense was unsupported by

      evidence. The trial court allowed the argument.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-511 | June 17, 2015   Page 3 of 6
[8]   The trial court found Abrego guilty of Class A misdemeanor battery and

      resisting arrest.3 On October 8, 2014, the trial court sentenced Abrego to 364

      days for battery, with 320 days suspended, and to 364 days for resisting arrest,

      with 320 days suspended. The sentences were ordered to run concurrently.

      Abrego now appeals.


                                        Discussion and Decision
[9]   Abrego argues that the State presented insufficient evidence to rebut her

      parental privilege defense.4 “The defense of parental privilege, like self-defense,

      is a complete defense. That is to say a valid claim of parental privilege is a legal

      justification for an otherwise criminal act.” Willis v. State, 888 N.E.2d 177, 180

      (Ind. 2008). In order to 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 standard of review for a challenge to the sufficiency of the evidence to

      rebut a claim of parental privilege is the same as the standard for any sufficiency

      claim. Willis, 888 N.E.2d at 183. The decision of whether a claim of parental

      privilege has been disproved is entrusted to the fact-finder, and we neither

      reweigh the evidence nor judge the credibility of witnesses. Id. If there is




      3
          Abrego appeals only the conviction for battery.
      4
          Abrego did not raise parental privilege as a defense until closing argument.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-511 | June 17, 2015   Page 4 of 6
       sufficient evidence of probative value to support the conclusion of the trier of

       fact, the verdict will not be disturbed. Id.


[10]   In addition, we are guided by the factors set out in the Restatement of the Law

       (Second) of Torts, § 147(1) (1965), which provides, “[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 its proper control, training, or

       education.” Id. at 182. The following factors, though not exhaustive, are

       relevant to whether force or confinement is reasonable: (1) whether the actor is

       a parent; (2) the age, sex, and physical and mental condition of the child; (3) the

       nature of his or her offense and the apparent motive; (4) the influence of his

       example upon other children of the same family or group; (5) whether the force

       or confinement is reasonably necessary and appropriate to compel obedience to

       a proper command; (6) whether it is disproportionate to the offense,

       unnecessarily degrading, or likely to cause serious harm. Id. at 182.


[11]   Abrego argues that this case is similar to Willis v. State, in which our Supreme

       Court determined that a parent who struck her child with either a belt or an

       extension cord had acted reasonably. 888 N.E.2d at 184. In Willis, there was

       evidence to show that the parent had spent substantial time considering the

       child’s offense and how best to punish him. Id. at 179. There was also

       evidence that the parent intended to swat the child on the buttocks. However,

       the child’s attempts to avoid the swats resulted in some of them landing on his

       arm and thigh. In finding that the parent had acted reasonably, our Supreme

       Court noted that the child had received five to seven swats on the buttocks,

       Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-511 | June 17, 2015   Page 5 of 6
       arm, and thigh to punish him for stealing, which most parents might reasonably

       consider a serious offense. Id. at 183. It also noted that none of the bruises

       caused by the incident were serious and took into consideration the child’s

       testimony that the swats hurt only “for a minute.” Id.


[12]   Abrego argues that the instant case is analogous to Willis, as there is no

       evidence to show how A.A. was struck in the face, and A.A. might have moved

       during the punishment, just as the child in Willis. We disagree, and find Willis

       distinguishable. First, there is no indication here as to why A.A. was being

       punished. In addition, all the evidence shows that Abrego struck A.A. in anger.

       Abrego grabbed A.A. hard enough to cause bruising before she began to hit her

       with the phone cord. While the parent in Willis purposefully aimed for the

       child’s buttocks, A.A. was struck in the face and stomach. A.A.’s lip was

       swollen and red and a raised welt as long as a dollar bill appeared on her

       stomach. This evidence is sufficient to show that Abrego used unreasonable

       force and to negate the defense of parental privilege.


[13]   The judgment of the trial court is affirmed.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1411-CR-511 | June 17, 2015   Page 6 of 6
