                                                                            FILED
                                                                        Feb 14 2019, 9:26 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark A. Thoma                                              Curtis T. Hill, Jr.
Deputy Public Defender                                     Attorney General
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana                                        Caryn N. Szyper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

Darwin L.G. Hanks,                                         February 14, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2240
        v.                                                 Appeal from the Allen Superior Court
                                                           The Honorable Frances C. Gull, Judge
State of Indiana,
                                                           Trial Court Cause No.
Appellee-Plaintiff                                         02D05-1712-F5-354




Crone, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2240 | February 14, 2019                           Page 1 of 8
                                              Case Summary
[1]   Darwin L.G. Hanks was convicted, following a jury trial, of committing level 5

      felony battery and level 6 felony domestic battery against his six-year-old son.

      On appeal, Hanks contends that the evidence is insufficient to support his

      convictions. Specifically, he asserts that the State presented insufficient

      evidence to refute his defense of parental privilege to discipline his child.

      Finding the evidence sufficient, we affirm.


                                  Facts and Procedural History
[2]   On Tuesday November 28, 2017, when six-year-old D.H. arrived at school, his

      first-grade teacher immediately noticed “a huge, red, splotchy mark that

      covered most of his – the side of his face and kind of into his ear.” Tr. Vol. 2 at

      87. This “concerned [her] right away[,]” and she knew she needed to speak

      with D.H. Id. When she asked him how he got the mark on his face, he

      eventually told her that it happened “last night” and that his face “felt like fire.”

      Id at 88. D.H.’s teacher contacted the school’s case manager, who in turn

      notified the Allen County Department of Child Services (“DCS”). Shortly

      thereafter, DCS case manager Kim Jackson came to D.H.’s school to

      investigate. She observed that D.H. had “a reddish-purplish bruising to the side

      of his face extending from the edge of the left side of his mouth to his left ear

      and then underneath the ear, almost behind it.” Id. at 135. She took pictures of

      D.H.’s face and then interviewed him. D.H. told her that his father thought

      that D.H. had taken his cigarettes. D.H. reported that “his father had slapped

      him” and “threw him on the couch.” Id. at 137.

      Court of Appeals of Indiana | Opinion 18A-CR-2240 | February 14, 2019         Page 2 of 8
[3]   Jackson went to D.H.’s home and spoke with D.H.’s parents, Hanks and

      Ailissa. Hanks admitted to Jackson that he hit D.H. Hanks said he was trying

      to teach D.H. that stealing and lying were wrong. He said he threatened to

      “whoop [D.H.’s] butt[,]” and when D.H. started to cry and scream, Hanks “hit

      him in the face.” Id. at 138. Ailissa told Jackson that she witnessed Hanks hit

      D.H.


[4]   D.H. was absent from school the next two days. The school contacted law

      enforcement to do a welfare check on D.H. When officers arrived at the home,

      Hanks answered the door, but D.H. was not there. Hanks told officers that he

      knew DCS was investigating him, and stated, “Because my son is a thief, he got

      smacked in the mouth.” Id. at 99-100.


[5]   D.H. returned to school that Friday, with the mark on his cheek still “very

      visible[,]” but “starting to fade.” Id. at 93, 103. Then, on Monday, December

      4, 2017, D.H.’s teacher observed “new marks” on his face that were “different

      than the mark on his face before.” Id. at 94. One of the marks looked “more

      like a scratch” and was on the opposite side of his face. Id. When D.H.’s

      teacher asked him how his weekend was, he told her that “it was bad,” and that

      “his dad had hit him three more times[.]” Id. D.H.’s teacher again had pictures

      taken, contacted the school’s case manager, and made a report to DCS.

      Jackson returned to the school to observe the injuries and speak to D.H. D.H.

      told Jackson that his father had slapped him with an open hand because he had

      taken some of his parents’ clothes and hid them in his bedroom. D.H. said that

      his father slapped his two-year-old brother B.H. as well. D.H. also told Jackson

      Court of Appeals of Indiana | Opinion 18A-CR-2240 | February 14, 2019   Page 3 of 8
      that his mother gave him an ice pack for his face and told him not to tell anyone

      about the incident. Jackson contacted law enforcement and went to D.H.’s

      home. The children were removed from the home on December 5.


[6]   Hanks was interviewed by police on December 6. He admitted that, on

      November 27, he “popped” D.H. in the mouth “a little too hard” which caused

      the large red mark on D.H.’s face. Tr. Vol. 3 at 18. Hanks stated that he

      popped B.H. in the face as well. Hanks denied that a second incident occurred

      or that he slapped D.H. and caused the injuries to the opposite side of his face.

      However, Hanks admitted to his mother, D.H.’s grandmother, that he had

      slapped D.H. because the six-year-old “got cocky back to him.” Tr. Vol. 2 at

      225.


[7]   The State charged Hanks with level 5 felony battery and level 6 felony domestic

      battery. Following a trial, the jury found Hanks guilty as charged. The trial

      court sentenced Hanks to concurrent terms of four years for the level 5 felony

      and two years for the level 6 felony. This appeal ensued.


                                       Discussion and Decision
[8]   Hanks does not dispute that the State presented sufficient evidence to satisfy the

      statutory elements of both battery and domestic battery.1 Rather, he argues that




      1
        The State alleged that Hanks, being at least eighteen years of age, knowingly or intentionally touched in a
      rude, insolent, or angry manner, D.H., a person less than fourteen years of age, resulting in bodily injury to
      D.H. See Ind. Code § 35-42-2-1(c)(1), -(e)(3). The State also alleged that Hanks, being at least eighteen years
      of age, knowingly or intentionally touched D.H., a family or household member, in the physical presence of

      Court of Appeals of Indiana | Opinion 18A-CR-2240 | February 14, 2019                               Page 4 of 8
       the State failed to refute his defense of parental privilege. Where, as here, a

       defendant alleges that the State failed to refute his claim of parental privilege,

       we apply the same standard of review as for any sufficiency of the evidence

       claim. Willis v. State, 888 N.E.2d 177, 182-83 (Ind. 2008). We consider only the

       probative evidence and reasonable inferences supporting the verdicts, without

       reweighing the evidence or assessing the credibility of the witnesses. Jones v.

       State, 87 N.E.3d 450, 454 (Ind. 2017). Unless no reasonable factfinder could

       find the defendant guilty, we will affirm the convictions. Id.


[9]    Pursuant to Indiana Code Section 35-41-3-1, “[a] person is justified in engaging

       in conduct otherwise prohibited if he has legal authority to do so.” Moreover, a

       parent has legal authority—sometimes referred to as the “parental discipline

       privilege”—to “apply such reasonable force” upon his child as the parent

       “reasonably believes to be necessary for ... proper control, training, or

       education.” Willis, 888 N.E.2d at 182 (quotation marks omitted) (adopting the

       RESTATEMENT (SECOND) OF TORTS § 147 (1965)).


[10]   When a defendant claims this privilege, “the State must disprove at least one

       element of the defense beyond a reasonable doubt.” Id. Thus, “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 [the] child and prevent

       misconduct was unreasonable.” Id. The State may refute the defense “by direct




       a child less than sixteen years of age, knowing the child was present and might be able to see or hear the
       offense. See Ind. Code § 35-42-2-1.3(b)(2).

       Court of Appeals of Indiana | Opinion 18A-CR-2240 | February 14, 2019                               Page 5 of 8
       rebuttal or by relying upon the sufficiency of the evidence in its case-in-chief.”

       Id. Ultimately, “[t]he decision of whether a claim of parental privilege has been

       disproved is entrusted to the fact-finder.” Id.


[11]   There “are no bright-line rules” as to what is considered “proper and reasonable

       parental discipline of children”; in fact, the current reasonableness standard

       makes it a difficult task to determine when parental use of physical force in

       disciplining children turns an otherwise law-abiding citizen into a criminal.

       Carter v. State, 67 N.E.3d 1041, 1049 (Ind. Ct. App. 2016) (Crone, J.

       concurring), trans. denied (2016). Nevertheless, our supreme court has directed

       that the following factors should be balanced against each other, giving

       appropriate weight as the circumstances dictate, in determining whether the

       force is reasonable:


               (a) whether the actor is a parent;


               (b) the age, sex, and physical and mental condition of the child;


               (c) the nature of his offense and his apparent motive;


               (d) the influence of his example upon other children of the same
               family or group;


               (e) whether the force or confinement is reasonably necessary and
               appropriate to compel obedience to a proper command;


               (f) whether it is disproportionate to the offense, unnecessarily
               degrading, or likely to cause serious or permanent harm.


       Court of Appeals of Indiana | Opinion 18A-CR-2240 | February 14, 2019       Page 6 of 8
       Id. at 1045 (citing Willis, 888 N.E.2d at 181-82). This list of factors is non-

       exhaustive, and “‘not all of the listed factors may be relevant or applicable in

       every case.’” Willis, 888 N.E. 2d at 182.


[12]   A review of the relevant factors listed above supports the jury’s decision to

       reject Hanks’s parental privilege defense. Hanks struck his six-year-old son

       D.H. in the face on at least two occasions with sufficient force to leave marks

       that lasted for a number of days. The first injury covered almost one entire side

       of D.H.’s face, and, the day after that incident, his face still felt “like fire.” Tr.

       Vol. 2 at 88. The injury to D.H.’s face after the second incident was still visible

       the following day despite his mother having him use an ice pack. Hanks

       inflicted this punishment because he believed that D.H. had a problem with

       stealing his parents’ things and lying about it. While Hanks asserts that he was

       simply using progressive forms of discipline to try to correct a behavior

       problem, the evidence ultimately supports a conclusion that Hanks used an

       unreasonable and disproportionate amount of force when disciplining six-year-

       old D.H. for his misbehavior. Hanks’s arguments on appeal are simply a

       request that we reweigh the evidence in his favor, a task not within our

       prerogative on appeal. The State presented sufficient evidence to refute the

       defense of parental privilege. As we are unable to conclude that no reasonable

       factfinder could find Hanks guilty, we affirm his convictions. See Jones, 87

       N.E.3d at 454.




       Court of Appeals of Indiana | Opinion 18A-CR-2240 | February 14, 2019          Page 7 of 8
[13]   Affirmed.


       Vaidik, C.J., concurs in result without opinion.


       Mathias, J., concurs.




       Court of Appeals of Indiana | Opinion 18A-CR-2240 | February 14, 2019   Page 8 of 8
