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:

JILL M. ACKLIN                                 GREGORY F. ZOELLER
Westfield, Indiana                             Attorney General of Indiana

                                               KARL M. SCHARNBERG
                                               Deputy Attorney General
                                               Indianapolis, Indiana
                                                                             FILED
                                                                       Feb 14 2012, 9:24 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




ROY A. DINWIDDIE,                              )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )        No. 90A02-1106-CR-569
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE WELLS CIRCUIT COURT
                     The Honorable James A. Heimann, Senior Judge
                            Cause No. 90C01-0503-FD-37


                                    February 14, 2012

            MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant-Defendant, Roy A. Dinwiddie (Dinwiddie), appeals his conviction for

battery, a Class D felony, Ind. Code § 35-42-2-1.

       We affirm.

                                         ISSUE

       Dinwiddie raises one issue on appeal, which we restate as follows: Whether the

State produced sufficient evidence to prove beyond a reasonable doubt that he committed

battery.

                       FACTS AND PROCEDURAL HISTORY

       On February 26, 2005, Patricia Dinwiddie (Patricia) was preparing a bath for her

seven year old daughter D.D. when Patricia noticed bruising on D.D.’s buttocks. Patricia

learned that D.D. had received the bruises from her father, Dinwiddie, from whom

Patricia was divorced. Pursuant to a custody arrangement, D.D. spent the weekdays with

her father and three weekends a month with her mother. According to D.D., during one

of the weeks that she had spent in her father’s custody, Dinwiddie had hit her on the

buttocks with a belt as punishment each time she had answered one of her math

homework problems incorrectly. D.D. started to cry when she told her mother about the

incident.

       After discovering D.D.’s bruises, Patricia took D.D. to the Ossian Police

Department and also to the Woodlawn Hospital Emergency Room in order to report the

injuries. The emergency room doctor who treated D.D. concluded that her bruises were
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consistent with being struck by a belt and reported the bruises as suspicious for child

abuse.

         On March 23, 2005, the State filed an Information charging Dinwiddie with

battery, a Class D felony, I.C. § 35-42-2-1. On April 19, 2011, a jury trial was held, and

Dinwiddie was found guilty as charged. On May 27, 2011, the trial court sentenced

Dinwiddie to 18 months, with all but 120 days suspended.

         Dinwiddie now appeals. Additional facts will be provided as necessary.

                                          DISCUSSION

         In reviewing a sufficiency of the evidence claim, this court does not reweigh

evidence or judge the credibility of witnesses. Perez v. State, 872 N.E.2d 208, 213 (Ind.

Ct. App. 2007), trans. denied. In addition, we only consider the evidence most favorable

to the verdict and the reasonable inferences stemming from that evidence. Id. We will

only reverse a conviction when reasonable persons would not be able to form inferences

as to each material element of the offense. Id. at 212-13.

         In order to convict Dinwiddie of battery as a Class D felony, the State was

required to prove beyond a reasonable doubt that he “knowingly or intentionally

touch[ed] another person in a rude, insolent, or angry manner,” that touch “result[ed] in

bodily injury to a person less than fourteen (14) years of age,” and that Dinwiddie was

over eighteen years of age. I.C. § 35-42-2-2(a)(2). On appeal, Dinwiddie does not

dispute that he hit D.D. with a belt, but he asserts that recent case law suggests that



                                             3
parents should not be subject to criminal liability for discipline that causes transient pain

and temporary bruising. See Willis v. State, 888 N.E.2d 177, 184 (Ind. 2008).

       In Willis, the supreme court acknowledged that while Indiana has not codified a

parental discipline privilege, our courts have construed I.C. § 35-41-3-1 as including

reasonable parental discipline that would otherwise constitute battery. Id. at 181. The

Willis court noted that this interpretation is consistent with our recognition that parents

have a fundamental interest in directing the upbringing and education of their children, as

well as I.C. § 31-34-1-15, which governs circumstances under which a child is a child in

need of services. Section 31-34-1-15 provides that “[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.” Id. at 180.

       However, a trial court may still enter judgment against a parent for battery if the

State provides sufficient evidence that (1) the force the parent used was unreasonable, or

(2) the parent’s belief that such force was necessary to control his or her child and

prevent misconduct was unreasonable. Id. at 182. The State may refute a claim of

parental privilege by direct rebuttal or by relying on the sufficiency of the evidence in its

case-in-chief.   Id.   The decision of whether a claim of parental privilege has been

disproved is entrusted to the fact-finder. Id. To guide us in determining whether a

parent’s force is unreasonable, the supreme court provided a non-exhaustive list of

factors for consideration:

       (a) Whether the actor is a parent;
       (b) the age, sex, and physical and mental condition of the child;
                                             4
      (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.

      In light of the above factors and our deference to the fact-finder in sufficiency

cases, we conclude that there was sufficient evidence that Dinwiddie used unreasonable

force under the circumstances and, therefore, committed a battery not protected by the

parental privilege.   First, we note that at seven years old, D.D. was a young and

impressionable child. We do acknowledge that it is likely that Dinwiddie’s motivation

was primarily to encourage D.D. to answer her homework problems correctly, but we

find that a reasonable person could perceive his actions as unnecessary to compel

obedience to a proper command and disproportionate to D.D.’s offense. There is no

evidence that D.D. acted out of defiance or rebelliousness, as there was in Willis, where

Willis’ son purposefully lied to her about stealing her underwear and bringing it to

another student at school. See id. at 179-80. The record also reveals that Dinwiddie hit

D.D. with a belt not once, but multiple times—once each time she answered a question

incorrectly. D.D. testified at trial that the belt hurt and that she cried. She was still

emotionally upset about the incident days later and cried when she recounted it to her

mother.




                                            5
      Finally, we find it significant that the jury was instructed about the defense of

parental privilege in final jury instruction number 7 and chose not to apply the privilege.

As we stated above, it is not our place on appeal to reweigh the evidence on appeal.

Perez, 872 N.E.2d at 213. Thus, we conclude that the State provided sufficient evidence

that Dinwiddie committed battery.

                                     CONCLUSION

      Based on the foregoing, we conclude that the State produced sufficient evidence to

prove beyond a reasonable doubt that Dinwiddie committed battery.

      Affirmed.

FRIEDLANDER, J. and MATHIAS, J. concur




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