                                                                                    FILED
                                                                             Feb 02 2018, 9:10 am

                                                                                    CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
                                                                 Mr. Curtis T. Hill, Jr.
      Mr. William J. Cohen
                                                                 Attorney General of Indiana
      Elkhart, Indiana
                                                                 Mr. Jesse R. Drum
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      William A. Hart,                                          February 2, 2018

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                20A03-1708-CR-1865
              v.                                                Appeal from the Elkhart Superior
                                                                Court.
                                                                The Honorable Teresa L. Cataldo,
      State of Indiana,                                         Judge.
      Appellee-Plaintiff.                                       Trial Court Cause No.
                                                                20D03-1309-FD-954




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   In Indiana, a parent has a privilege to use physical force to discipline a child.

      The privilege is not absolute, however. In the field of criminal law the privilege

      may be raised as a defense, as in this case, to a charge of battery. To succeed

      with the privilege as a defense, the parent must show that the parent reasonably


      Court of Appeals of Indiana | Opinion 20A03-1708-CR-1865 | February 2, 2018                     Page 1 of 10
      believed that force was necessary to discipline the child and that the force used

      was reasonable in the circumstances.


[2]   The defense of parental privilege is similar to the defense of self defense. To

      convict, the State must prove either that the parent’s belief that use of force was

      necessary was not reasonable or that the force used was not reasonable in the

      circumstances.


[3]   The determination of the reasonableness of using force and the reasonableness

      of the force used is for the fact finder, in this case a jury. The boundary

      between what is privileged and what is not is not clearly defined. As Judge

      Crone stated in his concurring opinion in Carter v. State, 67 N.E.3d 1041, 1049

      (Ind. Ct. App. 2016), trans. denied (internal footnote omitted),


              There may not be any area where reasonable minds differ more
              in our current society than corporal punishment of children.
              Attitudes vary dramatically by and within generations and
              cultures. If the purpose of the criminal law is to put a person on
              notice of what conduct is proscribed and what is permitted, then
              how can one’s guilt or innocence depend upon how someone else
              disciplines his or her children when there is no consensus about
              what is appropriate?
              That being said, courts must step in where legislatures decline to
              tread, so unless and until the General Assembly enacts clearer
              guidelines for parental discipline (or our supreme court adopts a
              more workable standard), trial judges and jurors must rely on
              their experience and judgment to determine when parents cross
              over the blurry line that separates lawful from unlawful conduct,
              and appellate courts must give those determinations significant
              deference. For that reason, I reluctantly concur in my colleagues’
              affirmance of Carter’s battery conviction.

      Court of Appeals of Indiana | Opinion 20A03-1708-CR-1865 | February 2, 2018   Page 2 of 10
[4]   In this case, William A. Hart was convicted of one count of Class D felony
                 1
      battery committed against his son. He appeals contending that the State failed

      to prove that he knew his daughter was present; that his belief force was

      necessary was not reasonable; and that the force used was not reasonable. We

      affirm.


                                                      Issue
[5]   The sole issue presented for our review is as follows: whether there was

      sufficient evidence to support Hart’s conviction of battering his son.


                                  Facts and Procedural History
[6]   Hart is a truck driver and is on the road for approximately a month or more at a

      time. He is home sometimes for a day and at the longest a week before he

      resumes driving. When he is home, he lives with Melissa Woods, the mother

      of their three children; two sons, J.H. and P.H., and a daughter, P.H.2. At the

      time of trial, Woods and Hart had been together for twenty years.


[7]   About August 22, 2013, when P.H. was fourteen, he drove Hart’s personal

      pick-up truck to a neighbor’s trailer. Hart was not home at the time. After law

      enforcement investigated and brought P.H. home, police officers told Woods to

      call them if things escalated to a point that she could not control when Hart

      came home. Woods made Hart aware of the situation after she had addressed




      1
          Ind. Code § 35-42-2-1(A)(2)(M)(2013).


      Court of Appeals of Indiana | Opinion 20A03-1708-CR-1865 | February 2, 2018   Page 3 of 10
       the issue with P.H. and the police. Before Hart returned home, Woods had

       disciplined P.H. for the incident with the truck. As she put it, she had “dealt

       with the pickup truck situation.” Tr. Vol. II, p. 146.


[8]    On the morning of September 2, 2013, P.H. was lying on the couch in the living

       room, and P.H.2 was in her bedroom. Hart yelled at P.H. for having left an

       electronic cigarette at his friend’s house. Woods responded that Hart could

       have just asked for the electronic cigarette. Hart then yelled at Woods for

       defending P.H. At some point, according to Woods, P.H. told his father “to

       shut the f*** up and leave him alone.” Id. p. 126. Hart walked to the couch

       and slapped P.H. three times “really hard” on the face and head. Id. pp. 218-

       19. P.H. rolled onto the floor holding his face and crying. Hart then kicked

       P.H. in the ribs.


[9]    Woods called 911 to report the incident, requesting police officers and an

       ambulance. During the 911 call Hart can be heard in the background yelling at

       P.H. to stand up, while Woods can be heard telling P.H.2 to return to her

       room. P.H.2, in 2017, testified at trial that from her room all she could hear

       was Hart, Woods, and P.H. yelling.


[10]   One of the first responders who arrived at the house was Kurt Marschke,

       Assistant Fire Chief with the Cleveland Township Fire Department. In

       addition to his duties as assistant fire chief, Marschke was trained as an

       advanced emergency medical technician. After the premises were secured, he

       found P.H. in his bedroom on his bed. Although P.H. initially was very quiet,


       Court of Appeals of Indiana | Opinion 20A03-1708-CR-1865 | February 2, 2018   Page 4 of 10
       he told Marschke that he had been hit in the face and kicked in the ribs.

       Marschke noted that P.H.’s injuries to the right side of his face and to his ribs

       appeared to be painful because P.H. withdrew from him when he touched those

       areas to evaluate them. Despite Marschke’s efforts to convince her to take P.H.

       to the hospital, especially since she had called 911, Woods declined to have

       P.H. taken for further evaluation by a physician.


[11]   Nicholas Snead, who at that time of the incident was employed by the Elkhart

       County Sheriff’s Department as a patrol officer, testified that he went to the

       house at the request of another officer. Upon observing P.H., who was being

       evaluated by Marschke, he noticed that the right side of P.H.’s face was red,

       especially in the upper eye area, and it appeared to be starting to swell. Snead

       testified that the redness was a different color than the rest of P.H.’s natural skin

       color.


[12]   Snead spoke with Hart both at the house and at the jail. Hart gave a voluntary
                                                                               2
       statement to the police after Snead mirandized him. In his statement, Hart

       claimed that P.H. “got a little smart,” gave him a “smug little look,” and

       “pushed the wrong button.” Exhibit Vol. II, Exhibit 13. Hart claimed he could

       not remember exactly what P.H. had said, but characterized it as “just the same

       old mush.” Id. He admitted to slapping P.H. “upside the head.” Id. He stated




       2
         During trial, Hart objected to the admission of the first part of the recording of the interview and the last
       part of the interview. The State did not have an unredacted copy of the interview to introduce into evidence.
       After arguments of the parties, Exhibit 13 was admitted, with the exception of the first and last part of the
       interview. Only those sections agreed upon by the parties and the trial court were played for the jury.

       Court of Appeals of Indiana | Opinion 20A03-1708-CR-1865 | February 2, 2018                        Page 5 of 10
       that, at that point, P.H. rolled off the couch and “start[ed] wailing like a little

       girl.” Id. Hart denied kicking P.H. in the ribs, contending instead that P.H.

       rolled onto his leg to make it seem as if Hart had kicked him. At the end of the

       part of the interview accessible to the jury, Hart stated that P.H. “steals cars,

       breaks into houses, nothing happens. I slap him, I get arrested.” Id. Hart

       asked the officers if they remembered how many times they had received calls

       to come to the house because of P.H.’s behavior. Id.


[13]   On September 16, 2013, the State charged Hart with Class D felony battery. He

       was tried by a jury in early June 2017. P.H. testified at trial, but contended that

       he could not remember the events that led to his father being charged. P.H.

       recently had been in a medically induced coma, which affected his memory.

       After Hart’s sentencing hearing, he was sentenced to three years suspended to

       probation.


                                     Discussion and Decision
[14]   Hart challenges the sufficiency of the evidence, contending that there is

       insufficient evidence that he battered his son in the physical presence of his

       daughter, and that the State failed to disprove his claim of parental privilege as

       a legal justification for his use of corporal punishment.


[15]   To establish that Hart committed the offense as charged, the State was required

       to prove beyond a reasonable doubt that Hart, a member of the family or

       household member, knowingly or intentionally touched P.H. in a rude,

       insolent, or angry manner, committing the offense in the presence of a child less

       Court of Appeals of Indiana | Opinion 20A03-1708-CR-1865 | February 2, 2018   Page 6 of 10
       than sixteen years of age, P.H.2, knowing that P.H.2 was present and might be

       able to see or hear the offense. Ind. Code § 35-42-2-1(a)(2)(M).


[16]   On review of a challenge of the sufficiency of the evidence, appellate courts

       neither reweigh the evidence nor judge witness credibility. Leonard v. State, 80

       N.E.3d 878, 882 (Ind. 2017). We will consider only the evidence and the

       reasonable inferences supporting the verdict. Id. Hart’s conviction will be

       affirmed if there is probative evidence from which a reasonable jury could have

       found Hart guilty beyond a reasonable doubt. Id.


[17]   First, Hart contends the State failed to prove that the battery was committed in

       the presence of Hart’s daughter, P.H.2, who was six years old. Manuel v. State,

       971 N.E.2d 1262, 1270 (Ind. Ct. App. 2012) (citing Boyd v. State, 889 N.E.2d

       321 (Ind. Ct. App. 2008), trans. denied), held that the “critical question in

       determining whether a child is ‘present’ for purposes of the statute is whether a

       reasonable person would conclude that the child might see or hear the offense;

       not whether the child is in the same room as where the offense is taking place.”

       In the present case, P.H.2. testified that she heard the argument between her

       mother, father, and P.H. Further, the State established through the

       introduction of the 911 tape that Woods instructed P.H.2. to return to her

       bedroom while Hart could be heard yelling at P.H. Therefore, the State

       established that P.H.2., was present for purposes of the statute.


[18]   Next, we address Hart’s defense of parental privilege. Indiana has recognized

       “a fundamental liberty interest in maintaining a familial relationship with his or


       Court of Appeals of Indiana | Opinion 20A03-1708-CR-1865 | February 2, 2018   Page 7 of 10
       her child.” Willis v. State, 888 N.E.2d 177, 180 (Ind. 2008). Encompassed in

       that fundamental interest is the right of parents “‘to direct the upbringing and

       education of children’. . . including the use of reasonable or moderate physical

       force to control behavior.” Id. This concept has been recognized in cases

       involving children in need of services, per Indiana Code section 31-34-1-15(1)

       (1997). In those cases, the statute explicitly acknowledges that a parent’s right

       to use reasonable corporal punishment when disciplining the child is not

       limited. On the other hand, “the State has a powerful interest in preventing and

       deterring the mistreatment of children.” Id.


[19]   Our Supreme Court has adopted the Restatement (Second) of Torts section

       147(1) (1965). Willis, 888 N.E.2d at 182. The Restatement provides as follows:


               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.
[20]   Further, while other states have codified a parental discipline privilege, Indiana

       has not yet done so. However, our courts have construed Indiana Code section

       35-41-3-1 (1977), the defense of legal authority, (“A person is justified in

       engaging in conduct otherwise prohibited if he has legal authority to do so.”), as

       encompassing reasonable parental discipline otherwise constituting battery.

       Willis, 888 N.E.2d at 181.


[21]   The Supreme Court went on to hold that “the defense of parental privilege, like

       self-defense, is a complete defense.” Id. at 182. “In order to negate a claim of


       Court of Appeals of Indiana | Opinion 20A03-1708-CR-1865 | February 2, 2018   Page 8 of 10
       parental privilege, the State must disprove at least one element of the defense

       beyond a reasonable doubt.” Id. Therefore, when the State seeks to sustain a

       conviction for battery where a claim of parental privilege has been asserted, the

       State must prove 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

       rebuttal or by relying on the sufficiency of the evidence in its primary case. Id.


[22]   Our Supreme Court also cited Restatement of the Law (Second) Torts, section

       150 (1965), when considering the reasonableness of punishment:


               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. at 182.


[23]   Therefore, in order to support the defense of parental privilege, the parent must

       have applied reasonable force and reasonably believed that force was necessary

       for the purpose of controlling the child. Id. In order to establish its case when

       Court of Appeals of Indiana | Opinion 20A03-1708-CR-1865 | February 2, 2018   Page 9 of 10
       presented with this defense, the State must prove either that the force was

       unreasonable or that the parent’s belief that the use of force was needed was

       unreasonable. Id.


[24]   On these facts, the jury could reasonably have concluded that the slapping and

       kicking of P.H. was not to discipline him for past behavior, but was an angry

       reaction to what P.H. said and how he looked at Hart. As Hart put it, P.H. had

       “pushed the wrong button.” Exhibit Vol. II, Exhibit 13. The jury could

       conclude that Hart neither had a reasonable belief that force was necessary nor

       was the force used reasonable.


                                                 Conclusion
[25]   In light of the foregoing, we affirm the trial court’s judgment.


[26]   Affirmed.


       Baker, J., and Brown, J., concur.




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