MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                  FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     Jun 17 2020, 9:37 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                                   ATTORNEY FOR APPELLEE
James A. Hanson                                          Josiah J. Swinney
Fort Wayne, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Deparis M. Hardin,                                       June 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-90
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable David M. Zent,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1908-F5-275



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-90 | June 17, 2020                           Page 1 of 8
                                                  Case Summary
[1]   Deparis Hardin (“Hardin”) appeals his conviction of battery, as a Level 6

      felony,1 and his sentence. We affirm.



                                                     Issues
[2]   Hardin presents two issues on appeal which we restate as follows:


                 I.        Whether the State presented sufficient evidence to support
                           his conviction of battery, as a Level 6 felony.


                 II.       Whether his sentence is inappropriate in light of the nature
                           of the offense and his character.


                                  Facts and Procedural History
[3]   On August 28, 2019, the State charged Hardin with battery, as a Level 5

      felony,2 and strangulation, as a Level 6 felony.3 Hardin waived his right to a

      jury trial, and the court conducted a bench trial on November 19, 2019. At

      trial, evidence was presented as to the following facts.


[4]   On August 23, 2019, at around 1:40 p.m., ten-year-old D.H.’s mother

      (“Mother”) drove him home as they mourned the death of D.H.’s grandfather




      1
          Ind. Code § 35-42-2-1 (c)(1), (e)(3).
      2
          I.C. § 35-42-2-1 (c)(1), (g).
      3
          I.C. § 35-42-2-9(c).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-90 | June 17, 2020         Page 2 of 8
      (“Grandfather”). D.H. told Mother he was hungry. Mother left D.H. in the car

      as she went into their home to quickly prepare him some food before they left

      for D.H.’s brother’s medical appointment. D.H.’s grandmother

      (“Grandmother”) and his uncle, Hardin, were standing outside the car. Hardin

      was around thirty years old and visiting from out of state for Grandfather’s

      funeral. As Mother walked up to her home, she asked Hardin to grab

      something for her from the garage and bring it in to the house. Hardin did so

      and then went back to the car.


[5]   D.H. remained in the passenger’s seat of the car when Mother went inside, and

      he could hear his young cousin (“Cousin”) speaking outside the car with

      Grandmother. As Hardin arrived back at the car, D.H. told Cousin to be quiet,

      and Grandmother took Cousin inside the home. Hardin told D.H. to be quiet,

      and D.H. responded that he did not have to be quiet.


[6]   About ten minutes later, D.H. reported to police that, after D.H. said he did not

      have to be quiet, Hardin had yelled at him, reached inside the passenger’s side

      window of the car, hit him seven times with a “closed fist” or “backhand,” and

      squeezed D.H’s neck with both hands, blocking his ability to breath. Tr. at 25.

      At trial, D.H. testified that he initially thought Hardin was “choking” him, id.

      at 12, but Hardin actually had only accidentally pinched D.H.’s neck with his

      fingernail when Hardin had grabbed D.H.’s shirt at “the middle of [D.H.’s]

      neck,” id. at 16. D.H. testified that Hardin slapped him in the shoulder when

      his “nail just slipped off” D.H.’s neck. Id. at 12. D.H. was crying when police



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-90 | June 17, 2020   Page 3 of 8
      arrived because it “hurt” when Hardin “hit” him and D.H. was also sad about

      losing his grandfather. Id. at 15.


[7]   In his closing argument at trial, Hardin’s counsel noted that Hardin was only

      “in town from out of state for a funeral.” Id. at 43. Hardin’s counsel stated,

      “[W]e can agree or disagree about whether or not Mr. Hardin should be the one

      disciplining the child or any number of things, but he’s a family member

      interacting with the child’s behavior.” Id. at 45. He continued that “this was

      an incident between an adult and child that was a correcting behavior,” and

      “whether we agree how it went down,” a battery did not occur. Id. at 46.


[8]   The trial court found Hardin guilty of the lesser included offense of battery as a

      Level 6 felony because the State proved rude or insolent touching by a person

      over eighteen years old against a person under fourteen years old, but it had not

      proven the bodily injury element needed for a Level 5 felony conviction. The

      court also found Hardin not guilty of the strangulation charge. The trial court

      imposed an executed sentence of one year and 183 days. In doing so, the trial

      court noted that Hardin’s prior criminal history, including failed prior efforts at

      rehabilitation, was an aggravating circumstance.4 This appeal ensued.




      4
        The trial court also found one mitigating circumstance, but the specifics as stated in the Judgment of
      Conviction are illegible, App. at 85, and the judge did not mention the mitigator in the transcript of the
      November 19 hearing. There is no transcript of the sentencing hearing or Chronological Case Summary in
      the record.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-90 | June 17, 2020                      Page 4 of 8
                                  Discussion and Decision
                                  Sufficiency of the Evidence
[9]    Hardin challenges the sufficiency of the evidence to support his conviction.

       Our standard of review of the sufficiency of the evidence is well-settled.


                When an appellate court reviews the sufficiency of the evidence
                needed to support a criminal conviction, it neither reweighs
                evidence nor judges the credibility of witnesses. Bailey v. State,
                907 N.E.2d 1003, 1005 (Ind. 2009). The appellate court only
                considers “the evidence supporting the judgment and any
                reasonable inferences that can be drawn from such evidence.” Id.
                (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008)). A
                conviction will be affirmed if there is substantial evidence of
                probative value supporting each element of the offense such that
                a reasonable trier of fact could have found the defendant guilty
                beyond a reasonable doubt. Bailey, 907 N.E.2d at 1005. A
                verdict of guilt may be based upon an inference if reasonably
                drawn from the evidence. See Drane v. State, 867 N.E.2d 144, 147
                (Ind. 2007).


       Tin Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014). Moreover, a conviction

       may be sustained on only the uncorroborated testimony of a single witness,

       even when that witness is the victim. Bailey v. State, 979 N.E.2d 133, 135 (Ind.

       2012).


[10]   To support Hardin’s conviction for battery, as a Level 6 felony, the State was

       required to prove that Hardin, who was at least eighteen years old, knowingly

       or intentionally touched another person who was under age fourteen in a rude,

       insolent, or angry manner. I.C. § 35-42-2-1 (c)(1), (e)(3). Evidence of touching,

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-90 | June 17, 2020   Page 5 of 8
       however slight, is sufficient to support a conviction for battery. See, e.g., Wolf v.

       State, 76 N.E.3d 911, 915 (Ind Ct. App. 2017). Hardin does not dispute that he

       was over eighteen years old and D.H. was under fourteen years old at the time

       of the incident. Nor does he dispute D.H.’s testimony that Hardin grabbed

       D.H. by the shirt and hit D.H. in the shoulder. Thus, although D.H. recanted

       his earlier report to officers that Hardin had hit him seven times with a fist or

       backhand and had squeezed his neck, his trial testimony nevertheless

       established that Hardin knowingly touched D.H. in a “rude, insolent, or angry

       manner.” Id. That is sufficient evidence to support the Level 6 battery

       conviction. See Wolf, 76 N.E.3d at 915; Bailey, 979 N.E.2d at 135.


[11]   On appeal, Hardin for the first time raises the “parental discipline privilege”

       under which reasonable parental discipline is an absolute defense to the crime

       of battery. Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008) (adopting

       Restatement of the Law (Second) Torts, § 147(1) (Am. Law Inst. 1965)), which

       states, “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.”).

       However, Hardin has waived that argument by raising it for the first time on

       appeal. See First Chicago Ins. Co. v. Dunn, 141 N.E.3d 54, 61 (Ind. Ct. App.

       2020) (discussing the general rule that an argument or issue raised for the first

       time on appeal by an appellant is waived for appellate review).




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-90 | June 17, 2020   Page 6 of 8
[12]   Waiver notwithstanding, Hardin is not the parent of D.H., nor is there any

       evidence that he was a person in loco parentis5 by either an express or implied

       delegation of authority, as he claims. See McReynolds v. State, 901 N.E.2d 1149,

       1153 (Ind. Ct. App. 2009) (holding parental discipline privilege did not apply to

       defendant who battered child who he was babysitting, as evidence was

       insufficient to show he was a person in loco parentis). Hardin is not entitled to

       assert the parental discipline privilege as a defense to the battery.


                                  Inappropriateness of Sentence
[13]   Hardin contends that his sentence is inappropriate in light of the nature of the

       offense. However, he provides only one sentence in support of that contention,

       and that one sentence does not contain cogent reasoning or any citation to

       either the record or legal authority as required by our appellate rules. Indiana

       Appellate Rule 46(A)(8)(a). Therefore, Hardin’s challenge to his sentence as

       inappropriate is waived. See e.g., Merrill v. State, 716 N.E.2d 902, 904 n.2 (Ind.

       1999) (holding that, by offering no supporting argument other than a bare

       assertion, defendant waived his appellate challenge to his sentence); Lacey v.

       State, 124 N.E.3d 1253, 1257 n.8 (Ind. Ct. App. 2019) (holding claim was




       5
         In loco parentis, meaning “in the place of a parent, … refers to a person who has put himself in the situation
       of a lawful parent by assuming the obligations incident to the parental relation without going through the
       formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and
       discharging the parental duties.” Marriage of Snow v. England, 862 N.E.2d 664, 666 (Ind. 2007) (citations and
       quotations omitted).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-90 | June 17, 2020                          Page 7 of 8
       waived for failure to provide citation to any authority or make cogent

       argument).



                                               Conclusion
[14]   There is sufficient evidence to support Hardin’s conviction of battery, and

       Hardin has waived his challenge to his sentence by failing to provide cogent

       argument and citations to the record and legal authority.


[15]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-90 | June 17, 2020   Page 8 of 8
