MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Jan 31 2018, 11:06 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tommie R. Shelton,                                       January 31, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1708-CR-1878
        v.                                               Appeal from the Marion Superior
                                                         Courts
State of Indiana,                                        The Honorable Anne Flannelly,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G04-1701-F5-1203



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1878 | January 31, 2018             Page 1 of 8
                                         Statement of the Case
[1]   Tommie Shelton (“Shelton”) appeals his conviction, following a jury trial, for

      Level 5 felony battery resulting in injury to a person less than 14 years of age. 1

      He argues that the State produced insufficient evidence to rebut his defense that

      his actions were protected by parental privilege. Because we conclude that the

      State produced sufficient evidence to rebut Shelton’s defense, we affirm

      Shelton’s conviction.


[2]   We affirm.


                                                       Issue
              Whether the State produced sufficient evidence to rebut Father’s
              parental privilege defense.

                                                       Facts
[3]   Shelton is the father of T.R. (“T.R.”), who was born in 2011. Prior to 2017,

      Shelton and T.R. lived with Shelton’s mother, Peggy Shelton (“Grandmother”),

      for two to two and a half years. However, in January 2017, when T.R. was

      four years old, Grandmother obtained an eviction order requiring Shelton to

      move out of her house.


[4]   The day before Shelton was required to leave, he and T.R. spent most of the

      day in the garage packing. Grandmother tried to stay out of their way, but she




      1
       IND. CODE § 35-42-2-1(c)(1). Shelton was also convicted of Level 6 felony domestic battery, but he does not
      challenge that conviction on appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1878 | January 31, 2018          Page 2 of 8
      did notice that Shelton was acting “a little irritated.” (Tr. Vol. 2 at 45). Shelton

      was “yelling and fussing” at T.R. and began acting “more and more irritated”

      as the day progressed. (Tr. Vol. 2 at 45). Around 8:30 p.m., Grandmother was

      walking down the hall and noticed that T.R. had blood on his lip, although she

      did not see or hear what caused the injury.


[5]   Later that night, around 10:00 or 11:00 p.m., Shelton yelled at T.R. because he

      had not cleaned underneath the bed well enough. T.R. then went to lie down

      while Shelton continued to pack. At approximately 12:30 a.m., Shelton woke

      T.R. and told him to go to the laundry room to get his clothes. T.R. got his

      clothes and headed to the bedroom to put them away. Shelton saw T.R.

      walking toward the bedroom and yelled “where are you going?” (Tr. Vol. 2 at

      52). Shelton then took the belt off of his pants and “started wailing on [T.R.].”

      (Tr. Vol. 2 at 53). Grandmother saw Shelton hitting T.R. “everywhere the belt

      could land[.]” (Tr. Vol. 2 at 54).


[6]   Initially, Shelton used the strap of his belt to hit T.R. However, T.R. managed

      to “wiggle between his dad’s legs,” and Shelton began hitting T.R.’s hands with

      the belt buckle. (Tr. Vol. 2 at 55). While Shelton was hitting T.R., T.R.

      screamed and cried. Grandmother yelled at Shelton, telling him to leave T.R.

      alone, but Shelton told Grandmother to get out of the way and continued to hit

      T.R. “hard.” (Tr. Vol. 2 at 57). Grandmother grabbed T.R. and put him

      behind her. She then put up her hand to ward off Shelton. He said, “get your

      hand off me” and pushed Grandmother’s shoulders, sending her “flying.” (Tr.

      Vol. 2 at 59). Grandmother fell and hit her right shoulder and head on a door

      Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1878 | January 31, 2018   Page 3 of 8
       frame. While she did not pass out, Grandmother felt herself “fade out.” (Tr.

       Vol. 2 at 60). When she got up, she called 9-1-1.


[7]    Police officers from the Indianapolis Metropolitan Police Department

       responded to the scene. One officer observed that T.R. was “quite terrified”

       and would not make eye contact. (Tr. Vol. 2 at 110). Other officers observed

       that T.R. had a contusion on his lip, a swollen and bruised hand, and a lump on

       his head. T.R. also reported that his knee hurt.


[8]    On January 10, 2017, the State charged Shelton with Count 1, Level 5 felony

       battery resulting in bodily injury to a person less than 14 years of age; Count 2

       Level 6 felony domestic battery; and Count 3, Class A misdemeanor battery

       resulting in bodily injury. The State later dismissed Count 3.


[9]    During the July 13, 2017 jury trial, Grandmother testified that she believed that,

       on the night of January 8th, T.R. had started to take his clothes from the

       laundry room to the bedroom because “he had been trained to put them in [his]

       drawer.” (Tr. Vol. 2 at 52). She testified that between the time when Shelton

       had yelled “where are you going?” and when he started to hit T.R. with his belt,

       T.R. had stood in the hallway “half asleep” and “confused” because he had not

       known where to take the clothes. (Tr. Vol. 2 at 52).


[10]   In his closing argument, Shelton argued that his actions were disciplinary in

       nature, and the trial court instructed the jury on the parental discipline defense.

       However, the jury found Shelton guilty as charged. The trial court sentenced

       Shelton to six (6) years with five (5) years executed and one (1) year suspended

       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1878 | January 31, 2018   Page 4 of 8
       on Count 1 and two (2) years executed on Count 2. It ordered the sentences to

       be served concurrently for an aggregate sentence of six (6) years. The trial court

       further made a domestic violence finding. Shelton now appeals.


                                                   Decision
[11]   On appeal, Shelton argues that the State did not rebut his parental privilege

       defense beyond a reasonable doubt.


[12]   It is well-established that “‘[a] parent has a fundamental liberty interest in

       maintaining a familial relationship with his or her child.’” Carter v. State, 67

       N.E.3d 1041, 1044 (Ind. Ct. App. 2016) (quoting Willis v. State, 888 N.E.2d

       177, 180 (Ind. 2008)), trans. denied. Included within this fundamental liberty

       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. at 1044-45 (quoting Willis, 888 N.E.2d at 180) (internal quotes

       omitted). However, the State also “‘has a powerful interest in preventing and

       deterring mistreatment of children[,]’” and “‘the potential for child abuse

       cannot be taken lightly.’” Id. at 1045 (quoting Willis, 888 N.E.2d at 180). Thus,

       prosecutors and courts are left with the difficult task of determining “‘when

       parental use of physical force in disciplining children turns an otherwise law-

       abiding citizen into a criminal.’” Id. (quoting Willis, 888 N.E.2d at 180).


[13]   In order to convict Shelton of Level 5 felony battery resulting in injury to a

       person less than 14 years of age, the State had to prove that he “knowingly or

       intentionally . . . touch[ed] [T.R.] in a rude, insolent, or angry manner” that

       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1878 | January 31, 2018   Page 5 of 8
       resulted in bodily injury and that T.R. was less than fourteen years of age. I.C.

       § 35-42-2-1.


[14]   The defense of parental privilege, like self-defense, is a complete defense.

       Willis, 888 N.E.2d at 182. That is to say, a valid claim of parental privilege is a

       legal justification for an otherwise criminal act. Id. See also I.C. § 35-41-3-1 (“A

       person is justified in engaging in conduct otherwise prohibited if he has legal

       authority to do so”). In order to negate a claim of parental privilege, 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 his child and prevent

       misconduct was unreasonable. Id. The State may refute a claim of the defense

       of parental privilege by direct rebuttal or by relying upon 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.


[15]   The standard of review for a challenge to the sufficiency of the evidence to rebut

       a claim of parental privilege is the same as the standard for any sufficiency

       claim. Id. at 182-83. We neither reweigh the evidence nor judge the credibility

       of witnesses. Id. at 183. If there is sufficient evidence of probative value to

       support the conclusion of the trier of fact, the verdict will not be disturbed. Id.


[16]   While there “‘are no bright-line rules’ as to what is considered ‘proper and

       reasonable parental discipline of children,’” the Indiana Supreme Court has

       adopted the view that “‘[a] parent is privileged to apply such reasonable force . .

       . upon his [or her] child as he [or she] reasonably believes to be necessary for


       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1878 | January 31, 2018   Page 6 of 8
       [the child’s] proper control, training, or education.’” Carter, 67 N.E.3d at 1045

       (quoting Willis, 888 N.E.2d at 181-82). In determining whether a punishment is

       reasonable, we may consider the following factors:


                (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. This list of factors is non-exhaustive, and “‘not all of the listed factors may

       be relevant or applicable in every case.’” Id. (quoting Willis, 888 N.E.2d at

       1082).


[17]   Here, T.R. was merely four years old and did not do anything reasonably

       requiring physical discipline. T.R. was sleeping when Shelton woke him at

       12:30 a.m. and told him to retrieve his clothes from the laundry room. T.R.

       retrieved his clothes as Shelton had requested and took the clothes to his

       bedroom. There was no evidence that, in doing so, T.R. disobeyed a direct

       order from Shelton. To the contrary, Grandmother testified at trial that T.R.

       was “half asleep” and confused. (Tr. Vol. 2 at 52). She believed that T.R. took



       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1878 | January 31, 2018   Page 7 of 8
       the clothes to the bedroom because he had been trained to put the clothes away

       in his drawer.


[18]   In addition, Shelton’s actions were disproportionate to T.R.’s perceived offense.

       We have previously held that a parent “‘is not privileged to use a means to

       compel obedience if a less severe method appears to be likely to be equally

       effective.’” Carter, 67 N.E.3d at 1046 (quoting Willis, 888 N.E.2d at 1083). In

       this case, it seems clear that Shelton could have used a less severe method to

       dispel T.R.’s confusion before resorting to “wailing on [T.R.]” and hitting T.R.

       “everywhere the belt could land[.]” (Tr. Vol. 2 at 53, 54).


[19]   In light of these factors, we conclude that the State produced sufficient evidence

       to rebut Shelton’s parental privilege defense.2


[20]   Affirmed


       Kirsch, J., and Bailey, J., concur.




       2
         Shelton also seems to argue that there was insufficient evidence that T.R. was injured. Because Shelton
       admits that an evidence technician observed that one of T.R.’s hands was swollen, there was undisputed
       evidence of T.R.’s injuries. We will not reweigh the evidence of T.R.’s other injuries; nor will we reweigh the
       severity of those injuries. See Willis, 888 N.E.2d at 183.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1708-CR-1878 | January 31, 2018            Page 8 of 8
