                                                                             FILED
                                                                         Sep 27 2018, 7:35 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Donald J. Frew                                             Curtis T. Hill, Jr.
Fort Wayne, Indiana                                        Attorney General of Indiana
                                                           Caryn N. Szyper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Joseph B. Fernanders, III,                                 September 27, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-812
        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Honorable John F. Surbeck,
Appellee-Plaintiff.                                        Jr., Judge
                                                           Trial Court Cause No.
                                                           02D06-1706-F6-749



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-812 | September 27, 2018                            Page 1 of 8
                                                   Case Summary
[1]   Following a jury trial, Joseph B. Fernanders, III (“Fernanders”), was convicted

      of Battery, as a Level 6 felony.1 He now appeals.


[2]   We affirm.



                                                      Issues
[3]   Fernanders raises two issues, which we restate as follows:


                 I.        Whether the State presented sufficient evidence to refute
                           his defense of parental privilege to discipline his child; and


                 II.       Whether he received ineffective assistance of counsel due
                           to counsel’s failure to timely disclose certain witnesses.


                                 Facts and Procedural History
[4]   In early 2017, A.F. was six years old. Her first-grade teacher used a “color

      chart” system to keep track of student behavior. Under the system, each

      student’s name was on a clip. Every day, the student started with the clip on

      “green.” For good behavior, the student could move up to “blue” or “purple.”

      If the student received a warning, the student would move to “yellow.” If the

      student continued to misbehave, the student might move to “orange” for a visit




      1
          Ind. Code § 35-42-2-1(c)(1), -1(e)(3).


      Court of Appeals of Indiana | Opinion 18A-CR-812 | September 27, 2018                 Page 2 of 8
      to the office or “red” for a phone call home. At the end of the day, the teacher

      would record the student’s color status on a paper that the student took home.


[5]   Fernanders is A.F.’s father. Under an early-2017 arrangement, Fernanders and

      his ex-wife, Cassandra Ort (“Ort”), shared physical custody of A.F. and her

      older sister, R.F. On February 8, 2017, the girls stayed with Fernanders after

      school. Fernanders found out that A.F. was marked “yellow” that day for

      talking out of turn. A.F. received the warning for shouting an answer before

      the teacher had called on her. This was A.F.’s third “yellow,” and she had

      received previous warnings for similar behavior. Fernanders told A.F. to go

      upstairs, which she did. A.F. then prepared to be punished, pulling her pants

      and underwear down, and leaning over a bed. Fernanders spanked A.F. on her

      buttocks multiple times with a belt. Afterward, he told A.F. to clean her room.

      Downstairs, R.F.—eight years old at the time—had heard A.F. screaming for a

      long time. R.F. noticed that A.F. seemed to limp when she came downstairs.


[6]   Although A.F. usually slept on her back, she spent that night “going . . . side to

      side” because “it was hurting.” Tr. Vol. II at 115-16. The next morning, A.F.

      was still in pain, and was moving “back and forth a little bit” as she sat on the

      school bus to school. Id. at 116. After school that day, A.F. and R.F. went to

      Ort’s residence. When A.F. bathed that evening and R.F. came in to give her a

      towel, R.F. froze when she saw bruises on A.F.’s buttocks and leg. R.F.

      summoned Ort, who took pictures of the bruising and called the police.




      Court of Appeals of Indiana | Opinion 18A-CR-812 | September 27, 2018      Page 3 of 8
[7]   The State charged Fernanders with Battery and Domestic Battery2 as Level 6

      felonies. A jury trial was held on February 8, 2018, at which Fernanders

      admitted to spanking A.F., but claimed a privilege to discipline A.F. At trial,

      Fernanders sought to elicit testimony from two of his children “as it relates to

      discipline, that’s it, no additional questions other than that.” Id. at 182. The

      State objected because Fernanders had not timely disclosed the witnesses and

      because there was “no indication that these other children were present at the

      time” of the spanking. Id. The trial court ultimately excluded the testimony.

      Later, the jury found Fernanders guilty of Battery and not guilty of Domestic

      Battery. The court imposed a two-year sentence, fully suspended to probation.


[8]   Fernanders now appeals.



                                  Discussion and Decision
                                         Parental Discipline
[9]   To obtain the instant conviction of Battery, the State was obligated to prove

      that Fernanders knowingly or intentionally touched A.F. in a rude, insolent, or

      angry manner when Fernanders was over the age of eighteen and A.F. was

      under the age of fourteen. See I.C. 35-42-2-1(c)(1), -1(e)(3). Fernanders does




      2
          I.C. § 35-42-2-1.3.


      Court of Appeals of Indiana | Opinion 18A-CR-812 | September 27, 2018      Page 4 of 8
       not dispute that there is sufficient evidence supporting these statutory elements.

       Rather, he argues that the State failed to refute his defense of parental privilege.


[10]   Under Indiana Code Section 35-41-3-1, “[a] person is justified in engaging in

       conduct otherwise prohibited if he has legal authority to do so.” Moreover, a

       parent has legal authority—sometimes referred to as the “parental discipline

       privilege”—to “apply such reasonable force” upon his child as the parent

       “reasonably believes to be necessary for . . . proper control, training, or

       education.” Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008) (quotation marks

       omitted) (adopting the Restatement (Second) of Torts § 147 (Am. Law Inst.

       1965)). When a defendant claims this privilege, “the State must disprove at

       least one element of the defense beyond a reasonable doubt.” Id. Thus, “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 [the] child and

       prevent misconduct was unreasonable.” Id. The State may refute the defense

       “by direct rebuttal or by relying upon the sufficiency of the evidence in its case-

       in-chief.” Id. Ultimately, “[t]he decision of whether a claim of parental

       privilege has been disproved is entrusted to the fact-finder.” Id.


[11]   Where—as here—the defendant alleges that the State failed to refute his claim

       of parental privilege, we apply “the same . . . standard [as] for any sufficiency

       claim.” Id. at 182-83. That is, “we look only at the probative evidence and

       reasonable inferences supporting the verdict” and “[w]e do not assess the

       credibility of witnesses or reweigh the evidence.” Love v. State, 73 N.E.3d 693,



       Court of Appeals of Indiana | Opinion 18A-CR-812 | September 27, 2018         Page 5 of 8
       696 (Ind. 2017). “Unless no reasonable factfinder could find the defendant

       guilty, we affirm.” Jones v. State, 87 N.E.3d 450, 454 (Ind. 2017).


[12]   Fernanders spanked A.F. on her bare buttocks with a belt, multiple times, with

       sufficient force to leave large bruises and to cause A.F. to limp afterward. In

       the hours after the spanking, A.F. had difficulty sleeping on her back and sitting

       on the school bus. Fernanders spanked A.F. because she volunteered an

       answer in class before her first-grade teacher called on her, and because A.F.

       had spoken out of turn on prior occasions at school. On appeal, Fernanders

       argues that it was reasonable for him to spank A.F., and asserts that the

       “spanking was nothing more than a progressive response to a continuing

       behavior problem demonstrated by the child.” Appellant’s Br. at 14. However,

       in evaluating the reasonableness of the discipline, the jury is free to consider

       factors such as the age of the child, the nature of the disobedience, and whether

       the use of force is disproportionate to the “offense.” Willis, 888 N.E.2d at 182.

       Ultimately, the evidence supports a reasonable conclusion that Fernanders used

       an unreasonable amount of force when disciplining six-year-old A.F. for her

       misbehavior. Thus, we conclude that the State presented sufficient evidence to

       refute the defense of parental privilege.


                             Ineffective Assistance of Counsel
[13]   Fernanders alleges that he received ineffective assistance of counsel in violation

       of the Sixth Amendment to the United States Constitution. To prevail on this

       claim, Fernanders must establish both elements of the Strickland test: (1) that


       Court of Appeals of Indiana | Opinion 18A-CR-812 | September 27, 2018       Page 6 of 8
       counsel’s performance was deficient and (2) that the deficient performance

       prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (Ind. 1984);

       Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). As to the first element,

       Fernanders points out that trial counsel failed to timely disclose two witnesses.

       Assuming arguendo that counsel’s performance was deficient, Fernanders must

       nevertheless demonstrate resulting prejudice, which requires a showing “that

       there is a reasonable probability that, but for counsel’s unprofessional errors, the

       result of the proceeding would have been different. A reasonable probability is

       a probability sufficient to undermine confidence in the outcome.” Strickland,

       466 U.S. at 694.


[14]   Because of counsel’s untimely disclosure, Fernanders could not question two of

       his children about disciplinary matters. Notably, however, Fernanders already

       had the opportunity to question two of his children: A.F. and R.F. Moreover,

       Fernanders testified about his approach to discipline as did his girlfriend, who

       was in the residence when Fernanders spanked A.F. It appears, then, that

       Fernanders is alleging prejudice from the inability to present merely cumulative

       testimony. Yet, this sort of prejudice “has not been shown to be great enough,

       standing alone, to satisfy the second prong of the Strickland test.” Smith v. State,

       547 N.E.2d 817, 819 (Ind. 1989) (involving the exclusion of testimony that

       appeared to be “merely cumulative to that of the five alibi witnesses who did

       testify at trial”). Furthermore, as there is no indication that the potential

       witnesses were present when Fernanders spanked A.F., the testimony would

       have had little bearing on the key question before the jury—which is not


       Court of Appeals of Indiana | Opinion 18A-CR-812 | September 27, 2018       Page 7 of 8
       whether Fernanders was usually a reasonable disciplinarian, but instead whether

       his discipline was reasonable on this occasion. We ultimately conclude that

       Fernanders has failed to demonstrate a reasonable probability that, had he been

       able to present the testimony, the result of the trial would have been different.


[15]   Affirmed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-812 | September 27, 2018      Page 8 of 8
