MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                        Nov 23 2016, 8:19 am

court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bruce W. Graham                                         Gregory F. Zoeller
Graham Law Firm P.C.                                    Attorney General of Indiana
Lafayette, Indiana
                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Wilma Beatrice Allen,                                   November 23, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A05-1601-CR-26
        v.                                              Appeal from the Tippecanoe
                                                        Circuit Court
State of Indiana,                                       The Honorable Thomas H. Busch,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        79C01-1507-F6-2



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016    Page 1 of 16
[1]   Wilma Beatrice Allen appeals her conviction for battery as a level 6 felony.

      Allen raises one issue which we revise and restate as whether the evidence is

      sufficient to sustain her conviction. We affirm.


                                      Facts and Procedural History

[2]   On July 6, 2015, Allen was at the apartment of her daughter Crystal in West

      Lafayette watching Crystal’s children, including five year old C.W. and ten

      year old B.B. Allen had been drinking beer that day. The children were

      playing hide and go seek, and C.W. had a pop bottle in his hand with water in

      it. C.W. did not know that B.B. was behind the couch, and B.B. “scared him

      and he threw the pop can up and it hit” Allen. Id. at 12. Allen retrieved a belt

      from Crystal’s bedroom and, in front of B.B., struck C.W. on the arm, injuring

      the skin on his arm. C.W. “was screaming,” “kept wanting [B.B.] to hold

      him,” and “wouldn’t let go of” B.B. Id. at 13. A few minutes later, Crystal

      “came in and she started hollering” at Allen. Id. at 12. Crystal and Allen had a

      physical altercation, and Allen called the police. Before police arrived, Allen

      left the apartment.


[3]   Deputy Jon Eads of the Tippecanoe County Sheriff’s Department arrived at

      Crystal’s apartment and observed Chrystal standing outside of a van and

      children, including C.W., inside the van. Crystal identified C.W. as the person

      who was injured, and Deputy Eads observed that “skin was missing or had

      been removed from [C.W.’s] arm” and that there was “some bruising” and

      “minor welting.” Id. at 28. Deputy Eads noticed the injury “looked like a fresh

      injury.” Id.
      Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 2 of 16
[4]   Deputy Dustin Treida arrived at the scene, obtained a description of Allen, and

      left to attempt to locate her. He located her walking on the side of a road

      speaking on her cell phone, and she was distraught and visibly upset. He

      noticed that Allen had blood on her hand and a laceration to her finger, and she

      told him that she “was jumped by her daughter Crystal” and that she received

      the injury to her hand when Crystal bit her. Id. at 37. Deputy Treida smelled

      the odor of alcohol and convinced Allen to cross the street to where medics

      with an ambulance were located to have her finger examined, and she was

      eventually transported to the hospital. Allen told Deputy Treida that she “had

      drank earlier in the evening.” Id. at 38.


[5]   About one to one and one-half hours after he spoke with Crystal, Deputy Eads

      spoke with Allen at the hospital. Allen “was very belligerent,” Deputy Eads

      could smell an odor of alcohol coming from her breath, and Allen “just kept

      very adamantly saying that the child had no injuries.” Id. at 31. Deputy Eads

      transported Allen to the jail, and during the trip Allen stated “that they were

      kids that were out of control and needed to be disciplined.” Id.


[6]   On July 13, 2015, the State charged Allen with battery of C.W. as a level 6

      felony and with being an habitual offender. At Allen’s bench trial, the State

      presented the testimony of B.B., C.W., Deputy Eads, and Deputy Treida, and

      Allen testified on her own behalf and presented testimony from Crystal. During

      B.B.’s testimony, the deputy prosecutor asked what C.W.’s arm looked like

      after he was hit, and B.B. testified “[i]t looked like his meat was gone” and

      “[l]ike his skin.” Id. at 12-13. When asked “did baby C.W.’s arm look like that

      Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 3 of 16
      before he got hit,” B.B. answered “[n]o,” and when asked how she knew Allen

      had been drinking beer, B.B. testified “[b]ecause all of the pop cans were on the

      side of the couch.” Id. at 13-14. When asked on cross-examination if the marks

      on C.W. were there before Allen struck him, B.B. answered “[n]o.” Id. at 15.

      On cross-examination, C.W. was asked whether they got “pennies hot and

      [threw] them at people,” and C.W. answered “I didn’t throw it,” and when

      asked “[h]ow did [M.] burn her grandmother,” C.W. stated “[s]he put it on

      stove” and “she put . . . the penny on the stove and then she . . . throw it at her

      and I said don’t do it and she did it.” Id. at 21. During Deputy Eads’s

      testimony, he indicated that C.W. was not taken to the hospital, that he was

      examined by medics at the scene, and that Crystal declined to have him

      transported to the hospital.


[7]   Allen testified that the injury to C.W.’s arm occurred prior to the day of July

      6th and that “the mark had been on C.W.[’s] arm for like – since June 30.” Id.

      at 44. She stated that she did not place the mark on him with a belt or other

      instrument, that the mark had been caused by C.W. being burned with a hot

      penny, that she was burned by a hot penny on June 30th, and that she first

      noticed the mark on C.W.’s arm on July 3rd. She testified that she was born on

      July 3, 1964, and that the BMV mistakenly stated her birthday as July 3, 1963.

      She testified that she had not been drinking alcohol and did not yell at the

      hospital. The court stated “tell me what a chastisement is,” and Allen stated “a

      spanking,” and the court asked “[w]hen did that occur,” and Allen testified

      “[t]his occurred July the 3rd.” Id. at 62. The court asked “[a]nd what did you


      Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 4 of 16
       use to spank them,” and Allen answered “[i]t was a—do any one of you ladies

       got a belt on it was a little thin belt. That Crystal had to chastise them with.”

       Id.


[8]    Allen further testified that, on July 3rd, C.W. kept doing flips off of the stairs

       and two of the other children were arguing and hitting each other and she said

       “where is my belt.” Id. at 65. She stated “I said C.W. come on and as C.W.

       was begging back I sent (inaudible) C.W., I pulled his little leg and I gave him a

       little tap and he – I think C.W. was actually wanted something to complain

       about like you know what I’m saying this hurt,” “so this is when he discovered

       the scar and this was when me and Crystal discovered that the scar was on

       him,” and “[w]e didn’t know that the scar was on him until July the 3rd but a

       strong – is that this mark had happened on the 30th.” Id. at 65-66. Allen

       admitted to being an habitual offender.


[9]    Crystal testified that C.W. had a mark on the middle of his right arm and that,

       when she asked him what happened, he told her that Allen “had whooped him

       with a belt.” Id. at 72. She testified she noticed the injury on July 6th, that B.B.

       showed her what Allen did to C.W.’s arm, and that C.W. had no injuries to his

       arm prior to that date.


[10]   The court entered a Bench Trial Order in which it found that the State had

       proven beyond a reasonable doubt that C.W. was less than fourteen years of

       age and Allen was at least eighteen years of age at the time of the offense, that

       Allen was drinking alcohol and there were beer cans near the couch, that Allen


       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 5 of 16
       smelled of alcohol, and that she had a belligerent behavior characteristic of

       intoxication. The court found that C.W. was too young to be a credible

       witness, that B.B. was a credible witness, and that B.B. testified that she and

       C.W. had been playing hide and seek, that C.W. spilled water on Allen, and

       that she saw Allen hit C.W. with a belt. It further found that C.W. “had a fresh

       wound on his arm, the bruise was fresh, the welts were fresh, and there was no

       scarring.” Appellant’s Appendix at 52.


[11]   The court further found that Allen’s testimony regarding what occurred is not

       credible, and that it is possible she was intoxicated to the extent she did not

       know what she was doing, but that was not a defense. The court credited her

       testimony that the children were out of control, and it stated that Allen’s

       statement to an officer “that the children were out of control and needed

       discipline is not a complete admission, but tends to prove that she was

       attempting to discipline the victim on the date in question,” and that Allen “did

       admit to disciplining the children, including [C.W.], with a belt on a prior

       occasion.” Id. at 53. The court found that C.W. “is an active child who had

       been disobedient and engaged in mischief not only on prior occasions but also .

       . . on this occasion, which caused [Allen] to attempt to discipline him by

       striking him with a belt.” Id. The court stated, “[i]n conclusion, the Court finds

       beyond a reasonable doubt that on the occasion in question [Allen] was

       sleeping and intoxicated and the children were playing in an active manner

       which caused [C.W.] to spill water on [Allen],” that Allen “became angry,

       grabbed a belt and hit [C.W.] intentionally causing him injury in the form of


       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 6 of 16
       bruising and a welt and removing some skin, either whether living skin or a

       scab,” that “[s]he did not hit him in a rude manner or an insolent manner but

       she did hit him in an angry manner,” and that Allen “is guilty of . . . Battery on

       a Child Resulting in Moderate Bodily Injury.” Id. at 53-54. The court also

       noted that Allen admitted to being an habitual offender and found her to be an

       habitual offender.


[12]   In its sentencing order, the court found as aggravating factors that Allen has a

       history of criminal delinquent behavior, 1 the victim was less than twelve years

       of age at the time of the offense, Allen committed a crime of violence and

       knowingly committed it in the presence or within hearing of an individual who

       was less than eighteen years of age and not the victim of the offense, she

       recently violated probation, parole, and pre-trial release, and she was in a

       position of trust. The court found as mitigating factors that there are substantial

       grounds tending to excuse or justify the crime, though failing to establish a

       defense, and that Allen has taken advantage of correctional rehabilitative

       programs while in prison. The court found that the aggravating circumstances

       outweighed the mitigating circumstances, sentenced Allen to two and one-half

       years for her conviction for battery as a level 6 felony, and enhanced the

       sentence by four years for her adjudication as an habitual offender, resulting in

       an aggregate sentence of six and one-half years. At the sentencing hearing, the



       1
         At sentencing, the prosecutor stated that, by the State’s count, Allen has been arrested approximately
       seventy-nine times and has approximately twenty-six prior convictions over the last approximately thirty-two
       years.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016          Page 7 of 16
       court stated that it would consider a motion for modification upon Allen’s

       successful completion of the Purposeful Incarceration program.


                                                   Discussion

[13]   The issue is whether the evidence is sufficient to sustain Allen’s conviction for

       battery as a level 6 felony. When reviewing the sufficiency of the evidence to

       support a conviction, we must consider only the probative evidence and

       reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,

       146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence.

       Id. We consider conflicting evidence most favorably to the trial court’s ruling.

       Id. We affirm the conviction unless “no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins

       v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence

       overcome every reasonable hypothesis of innocence. Id. at 147. The evidence

       is sufficient if an inference may reasonably be drawn from it to support the

       verdict. Id.


[14]   Allen contends that she was entitled to employ reasonable force upon her

       grandchild necessary for appropriate discipline, that the evidence is insufficient

       to rebut the claim of parental privilege, and accordingly her conviction for

       battery must be vacated. Specifically, she argues that “[a]n undercurrent in the

       trial revolved around ongoing discipline” and that she, as grandmother, was

       “entitled to use reasonable corporal punishment while disciplining the

       children.” Appellant’s Brief at 15. Allen states she is cognizant that her

       defense at trial was that she did not injure C.W. and argues that, “whatever her
       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 8 of 16
       defense was at trial, the State is still required to provide sufficient evidence to

       rebut parental privilege,” and that sufficiency of the evidence claims may be

       raised for the first time on direct appeal. Id. at 18. She argues that a fair

       assessment of the evidence places her in the parent-custodian category, that the

       court found that C.W. was an active child who had been disobedient and

       engaged in mischief on prior occasions and also on this occasion, that evidence

       supports the conclusion that discipline with a belt was and had been an

       accepted method of conduct correction, and that whether “the chastisement

       was disproportionate to the offense is of course a matter entrusted to the

       discretion of the trial court,” but that it is worthy of note that Allen testified that

       the injury to C.W.’s arm occurred in an unrelated incident discovered on July 3,

       2015, and that the testimony that the injury was fresh was not supported by

       medical testimony as C.W. was not injured seriously enough to receive medical

       attention. Id. at 20.


[15]   The State maintains that the evidence shows that C.W. was five years old and

       Allen was fifty-one years old at the time of the incident, that Allen struck C.W.

       with a belt with sufficient force to strip skin from his arm and to cause bruising

       and welting, and that this evidence is sufficient to show that Allen battered

       C.W. The State argues that a parental-privilege claim is an affirmative defense,

       that Allen never claimed she was justified to batter C.W. under a theory of

       parental privilege, and that consequently she has waived any such claim on

       appeal. The State further argues that, even if Allen had asked the trial court to

       evaluate a claim of parental privilege, such a claim would have failed. It argues


       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 9 of 16
       that there is no evidence that Allen had assumed any of the obligations incident

       to parenting and that Allen was “nothing more than a babysitter.” Appellee’s

       Brief at 9. It also states that the defense requires that the battery have been

       reasonable and that “[t]he State cannot conceive of a disciplinary situation in

       which striking a five-year-old child with such force that skin is removed and

       welting and bruising occurs can be reasonable.” Id.


[16]   Ind. Code § 35-42-2-1 governs the offense of battery and, at the time of the

       offense, provided that “a person who knowingly or intentionally: (1) touches

       another person in a rude, insolent, or angry manner . . . commits battery, a

       Class B misdemeanor.” Ind. Code § 35-42-2-1 (eff. Jul. 1, 2014) (subsequently

       amended by Pub. L. No. 65-2016, § 33 (eff. Jul. 1, 2016)). “The offense . . . is a

       Level 6 felony if . . . (1) The offense results in moderate bodily injury to any

       other person . . . [or] (3) The offense is committed against a person less than

       fourteen (14) years of age and is committed by a person at least eighteen (18)

       years of age.” Ind. Code § 35-42-2-1(d) (eff. Jul. 1, 2014) (subsequently moved

       to subsection (e) by Pub. L. No. 65-2016, § 33 (eff. Jul. 1, 2016)). The State

       alleged that Allen, “a person at least eighteen (18) years of age, to wit: fifty-two

       (52) years of age, did knowingly or intentionally touch another person, to wit:

       C.W., a person less than fourteen (14) years of age, to wit: five (5) years of age,

       in a rude, insolent, or angry manner, or the offense results in moderate bodily

       injury to said C.W.” Appellant’s Appendix at 20. Further, the Indiana

       Supreme Court has observed that reasonable parental discipline constitutes a




       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 10 of 16
       defense to conduct that would otherwise constitute battery. See Willis v. State,

       888 N.E.2d 177, 181 (Ind. 2008).


[17]   The evidence most favorable to the conviction shows that, on July 6, 2015,

       Allen retrieved a belt and struck C.W. on the arm which resulted in some

       bruising and some skin being torn from C.W.’s arm. The record also reveals

       that, at the time of the offense, Allen was over eighteen years of age and C.W.

       was five years old. Allen does not argue on appeal that she did not strike C.W.

       or challenge the age of C.W. or her age at the time of the offense. See

       Appellant’s Brief at 21 (“Allen understands that the court rejected her assertion

       that she did not injury [sic] C.W.”). The State presented evidence of a

       probative nature from which the trial court as the trier of fact could find beyond

       a reasonable doubt that Allen intentionally touched C.W. in an angry manner

       and that she was at least eighteen years of age and C.W. was less than fourteen

       years of age.


[18]   Having concluded that Allen’s conduct amounted to a battery as a level 6

       felony, we turn to Allen’s contention that the State failed to show that her

       conduct did not constitute reasonable parental discipline of C.W. Allen does

       not point to the record to show that she expressly raised the defense of parental

       discipline privilege below. Cf. Willis, 888 N.E.2d at 182-184 (noting that “[t]he

       defense of parental privilege, like self-defense, is a complete defense” and that,

       “[i]n response to a charge of battery, Willis raised the defense of parental

       discipline privilege”); see Ind. Trial Procedure Rule 8(C) (providing in part that

       “[a] responsive pleading shall set forth affirmatively and carry the burden of

       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 11 of 16
       proving . . . any other matter constituting an . . . affirmative defense”). To the

       extent the defense of parental discipline privilege constitutes an affirmative

       defense, we have previously noted that Ind. Trial Rule 15(B) 2 “provides an

       escape hatch” and that “[i]f the issue is tried by the implied consent of the

       parties it is treated as if raised by the pleadings.” Clemons v. State, 996 N.E.2d

       1282, 1285-1286 (Ind. Ct. App. 2013) (citing Custer v. Plan Comm’n of City of

       Garrett, 699 N.E.2d 793, 795 (Ind. Ct. App. 1998) (citing Puckett v. McKinney,

       175 Ind. App. 673, 676, 373 N.E.2d 909, 911 (1978) (holding that the defendant

       had not waived an affirmative defense even though he did not assert it in the

       pleadings as evidence which tended to establish the defense was elicited at trial

       and admitted without objection and thus that it may fairly be assumed the issue

       was tried with the implied consent of the parties))), trans. denied.


[19]   To the extent that the defense of parental discipline privilege was tried with the

       implied consent of the parties, we conclude the court could find that the defense




       2
           Ind. Trial Rule 15(B) provides:

                  Amendments to conform to the evidence. When issues not raised by the pleadings are
                  tried by express or implied consent of the parties, they shall be treated in all respects as if
                  they had been raised in the pleadings. Such amendment of the pleadings as may be
                  necessary to cause them to conform to the evidence and to raise these issues may be made
                  upon motion of any party at any time, even after judgment, but failure so to amend does
                  not affect the result of the trial of these issues. If evidence is objected to at the trial on the
                  ground that it is not within the issues made by the pleadings, the court may allow the
                  pleadings to be amended and shall do so freely when the presentation of the merits of the
                  action will be subserved thereby and the objecting party fails to satisfy the court that the
                  admission of such evidence would prejudice him in maintaining his action or defense
                  upon the merits. The court may grant a continuance to enable the objecting party to meet
                  such evidence.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016                    Page 12 of 16
was negated beyond a reasonable doubt and thus that reversal of Allen’s

conviction is not warranted. See Clemons, 996 N.E.2d at 1287 (addressing the

defense of necessity to the extent the defense was tried with the implied consent

of the parties and concluding that reversal was not warranted on that basis).

The Indiana Supreme Court has held that a parent’s fundamental liberty

interest in maintaining a familial relationship with his or her children includes

the right to direct the upbringing and education of children, “including the use

of reasonable or moderate physical force to control behavior.” See Willis, 888

N.E.2d at 180 (citing Ind. Code § 31-34-1-15(1) 3 and noting the statute provides

in part, “[t]his chapter does not . . . [l]imit the right of a parent, guardian, or

custodian of a child to use reasonable corporal punishment when disciplining

the child”). The Court observed that Indiana courts “have construed Indiana

Code section 35-41-3-1[4]—the defense of legal authority—as including

reasonable parental discipline that would otherwise constitute battery.” Id. at

181. “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.” Id. at

182 (citing RESTATEMENT OF THE LAW (SECOND) TORTS, § 147(1) (1965)).




3
    The section is titled “Effect of chapter on use of corporal punishment or religious practices.”
4
  Ind. Code § 35-41-3-1 provides: “A person is justified in engaging in conduct otherwise prohibited if he has
legal authority to do so.”


Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016                Page 13 of 16
               In determining whether force or confinement is reasonable for
               the control, training, or education of a child, the following factors
               are to be considered:

               (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.


       Id. (citing RESTATEMENT, supra, § 150). There may be other factors unique to a

       particular case that should be taken into consideration, and not all of the listed

       factors may be relevant or applicable in every case, “[b]ut in either event they

       should be balanced against each other, giving appropriate weight as the

       circumstances dictate, in determining whether the force is reasonable.” Id.


[20]   The record reveals that C.W. was Allen’s grandchild, that Allen had been

       drinking alcohol, and that, after C.W. threw a can up and it struck Allen, Allen

       retrieved a belt and struck C.W. resulting in skin being torn from C.W.’s arm.

       The evidence supports the determination that Allen struck C.W. with a belt in

       anger and hard enough to cause bruising and torn skin. B.B. testified that “[i]t

       looked like his meat was gone” and “[l]ike his skin.” Transcript at 12-13.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 14 of 16
       Deputy Eads testified that “it’s almost like a home base type diagram inside of

       his arm,” “[t]hat is where skin was missing or had been removed from his arm,”

       “[i]f you’re looking at his perspective some bruising and there was some minor

       welting,” and that “[i]t looked like a fresh injury” in that he did not see any

       scabbing or healing process. Id. at 28. The State also presented photographs of

       the injury which the court examined.


[21]   We conclude that a reasonable trier of fact could find, based upon the testimony

       and evidence presented, that the force used by Allen was not reasonably

       necessary or appropriate under the circumstances and disproportionate to the

       offense and that the defense of parental discipline privilege was negated beyond

       a reasonable doubt. Reversal of Allen’s battery conviction is not warranted on

       the basis that her conduct constituted reasonable parental discipline. See Smith

       v. State, 34 N.E.3d 252, 254-257 (Ind. Ct. App. 2015) (holding that, despite the

       child’s egregious behavior and the apparent ineffectiveness of previous

       disciplinary attempts, the evidence was sufficient to show that the force

       employed by the defendant to discipline the child, which included the

       defendant using a belt to strike the thirteen-year-old child ten to twenty times on

       her arms, shoulder, and legs, even where the injuries were not serious enough

       to require medical attention, was unreasonable and exceeded the privilege

       allowed to parents); Hunter v. State, 950 N.E.2d 317, 321 (Ind. Ct. App. 2011)

       (concluding the force employed by the defendant in forcefully striking the child

       with a belt approximately twenty times was unreasonable and thus the evidence

       was sufficient to rebut the alleged parental discipline privilege).


       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 15 of 16
                                                   Conclusion

[22]   For the foregoing reasons, we affirm Allen’s conviction for battery as a level 6

       felony.


[23]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016   Page 16 of 16
