 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                FILED
 regarded as precedent or cited before                        Apr 17 2012, 9:12 am
 any court except for the purpose of
 establishing the defense of res judicata,                           CLERK
                                                                   of the supreme court,
 collateral estoppel, or the law of the case.                      court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

DAVID M. PAYNE                                        GREGORY F. ZOELLER
Ryan & Payne                                          Attorney General of Indiana
Marion, Indiana
                                                      NICOLE M. SCHUSTER
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBBIE S. MCCAIN-FICKLIN,                             )
                                                      )
       Appellant-Defendant,                           )
                                                      )
               vs.                                    )      No. 27A02-1108-CR-767
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                      APPEAL FROM THE GRANT SUPERIOR COURT
                     The Honorable Dana J. Kenworthy, Judge Pro Tempore
                               Cause No. 27D02-1004-FD-40


                                            April 17, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                            Case Summary

        Robbie S. McCain-Ficklin appeals her conviction for Class D felony battery on

her minor stepson.         McCain-Ficklin alleges that trial counsel rendered ineffective

assistance by failing to tender a jury instruction on parental privilege. Because we

conclude that counsel employed a reasonable trial strategy, we find that McCain-Ficklin

did not receive ineffective assistance. We affirm.

                                       Facts and Procedural History

        The facts most favorable to the verdict are that on Saturday, January 16, 2010,

McCain-Ficklin cared for her three-year-old stepson, Z.F., while Z.F.’s father was at

work. McCain-Ficklin fed Z.F. a snack and some juice in the afternoon. McCain-Ficklin

later discovered that Z.F. had spilled his juice on the carpet. She punished Z.F. by

spanking his bottom with a belt.

        When Z.F.’s father returned home from work, McCain-Ficklin told him about the

spanking. The next day, when Z.F.’s father bathed the child, he noticed welts on Z.F.’s

bottom. He asked McCain-Ficklin about the marks. She again said that she spanked Z.F.

but also said that Z.F. had fallen from his Handy Manny chair the day before.1

        Later that afternoon, Z.F. went to his mother’s home. Z.F.’s father informed

Z.F.’s mother that Z.F. had been spanked and had some bruising. On Monday, when



        1
          The Handy Manny chair is a child’s chair with a graphic of the cartoon character Handy Manny
on it. The chair is best described as a saucer-like, foldable chair with hard legs and a cushioned seat. See
State’s Exs. 9-11.
        2
          The defense of parental privilege stems from Indiana Code section 35-41-3-1, which provides:
“A person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so.” In
Willis v. State, our Supreme Court described the privilege: “[a] parent is privileged to apply such
reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she]
reasonably believes to be necessary for its proper control, training, or education.” 888 N.E.2d 177, 182
                                                     2
Z.F.’s mother gave him a bath, she noticed marks on Z.F.’s bottom and thigh. She

reported the injuries to authorities. Marion Police Department Officer Timothy Pauley

came to the home and took photos of Z.F.’s injuries. The following day, authorities

conducted a forensic interview with Z.F. Z.F. reported that McCain-Ficklin had spanked

him with her hand and a belt for spilling his juice.

       McCain-Ficklin was then interviewed by authorities. McCain-Ficklin admitted

spanking Z.F. but told authorities she thought the marks on Z.F.’s bottom were caused by

falling or sliding from his Handy Manny chair, which she brought to the interview. She

also said that Z.F. might have called her hand a belt because she sometimes referred to

her hand as a belt. Authorities concluded that Z.F.’s injuries were consistent with being

struck by a belt and not consistent with the claim that Z.F. fell from the Handy Manny

chair. The State charged McCain-Ficklin with Class D felony battery.

       At trial, McCain-Ficklin testified that she “tapped” Z.F. three times, at most, on

“the side of his leg like towards, up towards his hip area.” Tr. p. 112, 116. She said that

she did not strike Z.F. hard enough to cause the bruising and welts on his bottom. Id. at

112-13. She testified that she thought those marks were caused by Z.F. falling from his

Handy Manny chair, perhaps onto his toys on the floor. Id. at 115-16, 122. Counsel also

argued that because Z.F. was so young, he could have been influenced to lie, or someone

else could have struck Z.F. Id. at 172-74, 178.

       The jury found McCain-Ficklin guilty as charged. She was sentenced to twenty-

four months in prison, with seven days of service on a work crew and twenty-three

months suspended to formal probation. McCain-Ficklin now appeals.


                                              3
                                     Discussion and Decision

        McCain-Ficklin alleges that her trial counsel rendered ineffective assistance by

failing to tender a jury instruction on parental privilege. A claim of ineffective assistance

of counsel involves two components. First, the petitioner must establish that counsel’s

performance was deficient, in that counsel’s representation fell below an objective

standard of reasonableness. Wrinkles v. State, 915 N.E.2d 963, 965 (Ind. 2009) (citing

Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). Second, the petitioner must

establish that the deficient performance prejudiced his defense. Id. In other words, the

petitioner must show that but for counsel’s errors, the result of the proceeding would

have been different. Id. (citing Strickland, 466 U.S. at 694). Because McCain-Ficklin is

raising ineffective assistance of counsel on direct appeal, she is foreclosed from raising it

in post-conviction proceedings. Caruthers v. State, 926 N.E.2d 1016, 1023 (Ind. 2010).

        Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do

not necessarily render representation ineffective. Reed v. State, 866 N.E.2d 767, 769

(Ind. 2007). Moreover, because counsel is afforded considerable discretion in choosing

strategy and tactics, a strong presumption arises that counsel rendered adequate

assistance. Id. The selection of a defense theory is a matter of trial strategy. Benefield v.

State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011).

        On appeal, McCain-Ficklin claims that parental privilege gave her legal authority

to use corporal punishment in dealing with Z.F. because she is his stepmother.2 She


        2
          The defense of parental privilege stems from Indiana Code section 35-41-3-1, which provides:
“A person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so.” In
Willis v. State, our Supreme Court described the privilege: “[a] parent is privileged to apply such
reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she]
                                                    4
argues that in failing to instruct the jury on this issue, counsel’s performance was

deficient and fell beyond an objective standard of reasonableness. McCain-Ficklin goes

on to argue that she was prejudiced by counsel’s failure because if the jury had been

instructed on parental privilege, they would likely have found that she had a valid defense

to the charge against her.

       We need not reach the issue of prejudice as McCain-Ficklin cannot show that her

trial counsel was deficient. At trial, McCain-Ficklin testified that her spanking of Z.F.

constituted, at most, three taps to the child’s hip and thigh area. She stated that her

spanking of Z.F. could not have caused the injuries to the child’s bottom and instead

attributed the injuries to the child’s bottom to a fall from a chair. Counsel reiterated

McCain-Ficklin’s claim that the injuries could have been caused by a fall and also argued

that someone else could have caused the injuries, or that Z.F., because of his young age,

could have been influenced to lie. It is clear that the chosen trial strategy was to maintain

McCain-Ficklin’s innocence and offer alternative causes of injury to Z.F. Requesting an

instruction on parental privilege, which would be tantamount to claiming that McCain-

Ficklin had caused the injuries but was justified in doing so, would be wholly

inconsistent with this chosen strategy.           Given the considerable discretion afforded

counsel in choosing strategy and tactics and our deference in reviewing such decisions,

we cannot say that counsel’s decision not to tender an inconsistent jury instruction on




reasonably believes to be necessary for its proper control, training, or education.” 888 N.E.2d 177, 182
(Ind. 2008) (quoting Restatement of the Law (Second) Torts, § 147(1) (1965)). As McCain-Ficklin
correctly notes, this privilege extends to stepparents. See McReynolds v. State, 901 N.E.2d 1149, 1154
(Ind. Ct. App. 2009).
                                                   5
parental privilege constitutes deficient performance.      We therefore conclude that

McCain-Ficklin did not receive ineffective assistance of counsel.

      Affirmed.

CRONE, J., and BRADFORD, J., concur.




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