                                                                           May 13 2015, 10:48 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                        Gregory F. Zoeller
Oldenburg, Indiana                                        Attorney General of Indiana
                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Latoyia Smith,                                            May 13, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          49A05-1409-CR-400
        v.                                                Appeal from the Marion Superior
                                                          Court.

State of Indiana,                                         The Honorable Clayton Graham,
                                                          Judge.
Appellee-Plaintiff
                                                          The Honorable Steven Rubick,
                                                          Magistrate.
                                                          Cause No. 49G17-1307-CM-47880




Riley, Judge.




Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015                      Page 1 of 13
                                    STATEMENT OF THE CASE

[1]   Appellant-Respondent, Latoiya Smith (Smith), appeals her conviction for

      battery, a Class A misdemeanor, Ind. Code § 35-42-2-1 (a)(1)(A) (2012).


[2]   We affirm.


                                                      ISSUE

[3]   Smith raises one issue on appeal, which we restate as: Whether there was

      sufficient evidence to support her misdemeanor battery conviction.


                           FACTS AND PROCEDURAL HISTORY

[4]   Smith is the mother of a teenage daughter, J.W., born in May 1999. In the

      spring of 2013, J.W. was thirteen years old. Going through J.W.’s electronic

      devices, Smith discovered that J.W. was having conversations with boys on

      social media sites that were “very sexual in nature.” (Transcript p. 128). Smith

      observed that in most conversations, J.W. was “the aggressor”; J.W. “was

      sexting[,] sending naked pictures of herself to guys, [and] talking to random

      people on the internet.” (Tr. pp. 120, 128). In addition, J.W. was sneaking

      away from home and would arrange to meet with boys at nearby parks. In an

      attempt to correct J.W.’s behavior, Smith imposed a progression of discipline

      measures. Smith removed J.W. from public school and placed her in a private

      Christian school. Smith took all of J.W.’s clothes and left her with “sweats and

      polo shirts.” (Tr. p. 128). Smith took away J.W.’s electronic devices, and also


      Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015   Page 2 of 13
      had J.W. deactivate her social media accounts. Concerned for her daughter’s

      safety, Smith had J.W.’s stepfather advise J.W. of the dangers of interacting

      with random boys on the internet.


[5]   In the last week of April 2013, and despite grounding J.W., Smith allowed J.W.

      to go on a school field trip to Washington D.C. On that field trip, J.W. came

      into possession of an iPod through a friend. Unbeknownst to Smith, J.W.

      reactivated many of her social media accounts. Shortly after the trip, Smith

      went to J.W.’s bedroom in the middle of the night to check on her. The lights

      were off but J.W. was not asleep. Smith found J.W. using the iPod1 that she

      had recently acquired. Smith was disappointed and she felt utter frustration

      with J.W.’s disobedience. At that point, Smith grabbed a belt from J.W.’s

      closet and she ordered J.W. to lie “across the bed on her stomach,” but J.W.

      refused. (Tr. p. 134). Smith tried to hold her down, but J.W. dodged the

      spanking by swinging, rolling herself on the floor, kicking, and grabbing the

      belt. At some point, Smith reached out for a second belt to complete the

      spanking. J.W. “wasn’t crying” and Smith stopped because “[i]t was taking




      1
        The record does not reveal what kind of iPod J.W. had. However, we note that iPod touch as well as iPod
      nano have built-in apps such as iMessage, FaceTime, email, and web browser which are accessible over Wi-
      Fi. In addition, the devices allow users to download apps in the Apple store such as Facebook, and
      Instagram. https://support.apple.com/en-us/HT1353 (last visited Apr. 14, 2015).

      Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015                     Page 3 of 13
      more energy than it was worth.” (Tr. p. 152). Altogether, Smith hit J.W. with

      the belt somewhere between “ten [] and twenty [] times” on her arms, shoulder,

      and legs. (Tr. p. 77). Type


[6]   The following day, J.W. went to school. A teaching assistant saw J.W. sitting

      in a classroom between periods, and J.W. seemed emotionally upset. The

      teaching assistant pulled J.W. in the hallway for a private conversation, and

      J.W. revealed the contusions on her shoulder that resulted from Smith’s

      beating. The teaching assistant reported the incident to the school’s principal,

      who then contacted the Department of Child Services (DCS). Two days after

      the incident, May 3, 2013, J.W. went to the school nurse for an icepack to nurse

      her aching shoulder. Nurse Cynthia Litwiler (Nurse Litwiler) asked J.W. if she

      had reported the injury to her mother, and J.W. indicated that she had not.

      Thinking that the injury must not have been grave, Nurse Litwiler sent J.W.

      back to class without treatment. Later that afternoon, a DCS worker showed

      up at J.W.’s school to investigate the extent of J.W.’s injuries. The DCS

      worker and Nurse Litwiler took J.W. to the bathroom and they photographed

      J.W.’s injuries. J.W.’s injuries included: a swollen right shoulder which was

      painful to touch, welts and scratches to her right inner thigh, upper left thigh,

      upper part of her back, and forehead. Nurse Litwiler gave J.W. an icepack for

      her shoulder and ibuprofen for the pain.


[7]   On July 24, 2013, the State filed an Information charging Smith with battery, a

      Class A misdemeanor. A bifurcated bench trial was conducted on March 20,



      Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015   Page 4 of 13
      and July 31, 2014. At the close of Smith’s bench trial, the court found Smith

      guilty of battery, and it held in part that

               . . . the evidence before the [c]ourt is that [] Smith lost control.
              Regardless of your daughter’s wayward behavior, you were the adult []
              Smith. Though you had taken progressive steps to discipline your
              child and though you announced to her that you were going to use
              corporal punishment as a result of her contumacious behavior[,] when
              she began resisting, you fought with her. You participated in the
              escalation of that. You described pushing back, resisting. You
              described pushing her, falling all over the bed; tussling. This became a
              fight with your child. Your [] decision to use reasonable proportional
              force to discipline your child was lost when you began to fight with the
              child. She was thirteen []. You were a grown woman. At that
              moment, it was incumbent on you to walk away and cool down.


      (Tr. p. 161). The trial court then sentenced Smith to 365 days in Marion

      County jail, all suspended to non-reporting probation.


[8]   Smith now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

                                        I. Sufficiency of the Evidence

[9]   Our standard of review for sufficiency claims is well settled. We neither

      reweigh the evidence nor judge the credibility of the witnesses. Perrey v. State,

      824 N.E.2d 372, 373 (Ind. Ct. App. 2005), trans. denied. We only consider the

      evidence most favorable to the judgment and the reasonable inferences to be

      drawn therefrom. Id. Where there is substantial evidence of probative value to

      support the judgment, it will not be set aside. Id.



      Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015      Page 5 of 13
[10]   To convict Smith of battery, the State was required to prove beyond a

       reasonable doubt that she knowingly or intentionally touched a person in a

       rude, insolent, or angry manner and that touching resulted in bodily injury.

       I.C. § 35-42-2-1(a)(1)(A)(2012). Not contesting the elements, Smith asserts the

       defense of parental discipline pursuant to Indiana Code section 35-41-3-1,

       which provides: “A person is justified in engaging in conduct otherwise

       prohibited if he has legal authority to do so.” “This statute has been interpreted

       to provide legal authority for a parent to engage in reasonable discipline of her

       child, even if such conduct would otherwise constitute battery.” State v. Fettig,

       884 N.E.2d 341, 345 (Ind. Ct. App. 2008). Thus, “[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.” Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)

       (quoting Restatement of the Law (Second) Torts, § 147(1) (1965)).


[11]   The defense of parental privilege, like self-defense, is a complete defense to

       battery of a child. Id. “[T]o sustain a conviction for battery where a claim of

       parental privilege has been asserted, 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 her 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.




       Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015   Page 6 of 13
                                       II. Parental Discipline Privilege

[12]   A parent has a fundamental liberty interest in maintaining a familial

       relationship with his or her child. Id. at 180. This fundamental interest includes

       the rights of parents to direct the upbringing and education of children,

       including the use of reasonable or moderate physical force to control behavior.

       Id. However, the potential for child abuse cannot be taken lightly. Id.

       Consequently, the State has a powerful interest in preventing and deterring the

       mistreatment of children. Id. The difficult task of prosecutors and the courts is

       to determine when parental use of physical force in disciplining children turns

       an otherwise law-abiding citizen into a criminal. Id.


[13]   Here, Smith contends that the State’s evidence was insufficient to refute the

       claim of parental privilege. Specifically, Smith argues that the force used was

       relatively inconsequential, the injury on J.W. was marginal, and her conduct

       was moderate and reasonable under the circumstances. In determining whether

       the force or confinement is reasonable, the following factors should 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.



       Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015     Page 7 of 13
       Id. at 182. (quoting Restatement of the Law (Second) Torts, § 150 (1965)). Our

       supreme court cautioned that the relevant factors “should be balanced against

       each other, giving appropriate weight as the circumstances dictate, in

       determining whether the force is reasonable.” Id.


[14]   In advancing her claim, Smith relies on Willis, where our supreme court held

       that the parent’s use of a belt to inflict corporal punishment was protected by

       the parental discipline privilege. Id. at 183. In Willis, the mother used

       progressive forms of discipline to punish her eleven-year-old son who frequently

       got into trouble. Id. According to the defendant in Willis, she had previously

       grounded the child after he had been caught stealing, but that punishment had

       not been effective. Id. Accordingly, she decided that a harsher punishment,

       namely, swatting him with a belt, would be more effective in response to a

       subsequent incident where the child had stolen several items of clothing. Id. At

       trial, the defendant explained, “I thought about it over the entire weekend and I

       even tried to talk to him again. And he continued to lie . . . . I didn’t know

       what else to do.” Id.


[15]   In applying the aforementioned factors to Willis case, the court concluded that

       the defendant had inflicted a reasonable punishment in light of the offense. Id.

       Specifically, the Willis court observed that the child was eleven-years-old and

       that the punishment was reasonable for a boy of that age. Id. In addition, the

       court noted that most parents would likely find that the pattern of being

       untruthful and taking away property of others would set the stage for more

       aberrant behavior later in life. Id.
       Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015    Page 8 of 13
[16]   In countering Smith’s argument, the State claims that Smith’s situation is not

       comparable to the Willis case. The State argues that the beating in “this case

       was much more severe than five to seven swats to which” Willis’ son was

       subjected. (Appellee’s Br. p. 7). The State argues that Smith hit J.W. between

       ten and twenty times using two belts and that the beating was unreasonable. In

       this regard, the State claims that Smith’s situation is more comparable to

       Mathews v. State, 892 N.E.2d 695, 696 (Ind. Ct. App. 2008), trans. denied. In

       Mathews, the defendant was playing cards with her two daughters, twelve-year-

       old J.M. and seven-year-old B.M. Id. B.M. threw popcorn at her older sister,

       and J.M. responded by hitting B.M. in the face. Id. Mathews then tried to hit

       J.M., but missed. Id. J.M. then called Mathews a “fucking bitch” and ran to

       the bathroom. Id. Mathews followed J.M., forced entry, and hit J.M. with a

       closed fist on her arms and legs. Id. J.M. escaped to her bedroom, but

       Mathews pursued her, forcing entry, and beating J.M. with a belt about ten

       times. Id. At trial, Mathews stated that she attempted to take away the blanket

       that J.M. was using as a shield in order to get a better shot at J.M. Id.


[17]   Here, it is uncontroverted that J.W. was a badly behaved thirteen-year-old who

       had been caught having inappropriate conversations with boys on social media.

       Smith had tried non-physical disciplinary measures to correct J.W.’s wayward

       behavior, including grounding her and taking away her electronic devices.

       After J.W. returned from her school trip, Smith caught J.W. using an iPod,

       which J.W. had sneaked into the house, and J.W. had reactivated most of her

       social media accounts. J.W.’s persistent disobedience and the failed attempts to

       Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015    Page 9 of 13
       correct her behavior preceding the use of the belt, certainly warranted some

       form of punishment.


[18]   As we stated above, Indiana Code section 35-41-3-1 establishes that a parent

       has a right to employ reasonable corporal punishment to discipline a child. See

       Dyson v. State, 692 N.E.2d 1374, 1376 (Ind. Ct. App. 1998). But there are limits

       to that right and parents may be found guilty of, among other things, battery, if

       they exceed their disciplinary authority. See, e.g., Mitchell v. State, 813 N.E.2d

       422, 427 (Ind. Ct. App. 2004) (holding that dropping four-year-old son to the

       floor and kicking him was a battery); Smith v. State, 489 N.E.2d 140, 141 (Ind.

       Ct. App. 1986) (holding that a parent’s ten-minute beating of a child, involving

       fifteen blows to the child’s body and resulting in a laceration and numerous

       contusions, was a criminal act).


[19]   We decline Smith’s invitation that we reweigh the evidence with regard to her

       claimed defense that her actions were justified as reasonable parental discipline.

       Despite J.W.’s egregious behavior and the apparent ineffectiveness of previous

       disciplinary attempts, the force employed by Smith to discipline J.W. was

       unreasonable and we find that it exceeded the privilege allowed to parents. At

       her bench trial, Smith stated that she was not angry, but rather, disappointed

       and frustrated with J.W.’s behavior. Contrary to Smith’s assertion, the record

       reveals that she was angry and that she knowingly and intentionally touched

       J.W. in a rude, insolent and angry manner. See I.C. § 35-42-2-1(a)(1)(A)(2012).




       Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015   Page 10 of 13
[20]   We note that parents do not always act with calmness of mind or considered

       judgment when upset with their child’s delinquent behavior. Both mothers in

       Willis and in the case at bar were justly upset by their disobedient teenagers.

       The stark difference between the two is, that the mother in Willis inflicted only

       five to seven swats which we find were more controlled than those displayed

       here. At trial, the court noted that Smith pushed J.W. several times to advance

       her beating. In addition, the record reveals that when J.W. fought off the

       beating, Smith fought back. The trial court noted that what might have begun

       as reasonable chastisement, escalated to a fight between a mother and her

       thirteen-year-old daughter. As a result, J.W. sustained numerous bruises on

       various parts of her body, including her face, shoulder, arms, and legs.


[21]   Furthermore, we note that although the beating took place in one room, and it

       was not a chase as that displayed in Mathews, we find that the punishment bears

       some resemblance. In Mathews, we concluded that when Mathews followed

       J.M. to her bedroom and continued to beat her, it crossed from reasonable to

       unreasonable. Mathews, 892 N.E.2d at 699. We also noted that Mathews

       attempt to remove the blanket that J.M used as a shield so as to have a direct

       access for hitting was also unreasonable. Id. Turning to the facts of this case,

       Smith grabbed the first belt and she hit J.W. several times with it. At some

       point, Smith grabbed a second belt to complete the beating. All the while, J.W.

       used her hands to shield herself. We find that Smith reaching out for a second

       belt to complete the beating was unreasonable. We also find Smith’s actions

       unreasonable when she engaged in a fighting match with J.W. on the night in


       Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015   Page 11 of 13
       question. Moreover, at her bench trial, Smith admitted that she only stopped

       the whipping because she was not getting a reaction from J.W. and that beating

       seemed to take more energy than it was worth.


[22]   Lastly, Smith’s assertion that J.W.’s injuries were not serious enough to require

       medical attention is an invitation to reweigh that evidence, which will not do.

       The jury heard evidence that Smith beat then-thirteen-year-old J.W.

       approximately ten to twenty times with a belt. Although J.W. could not recall

       for how long she was in pain, J.W. testified that she was sore after the beating,

       and she had visible red welts and abrasions for days after the incident. The

       State also introduced photographic evidence that corroborated J.W.’s

       testimony.


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

       cases, the trial court was entitled to conclude that Smith’s behavior was

       excessive, unreasonable, and outside the bounds of appropriate parental

       discipline, and the mere fact that it was imposed by an out-of-control parent

       upon her disobedient thirteen-year-old does not shield Smith from criminal

       liability. See Mitchell, 813 N.E.2d at 427. Under the circumstances, we

       conclude that Smith committed a battery not protected by the parental

       privilege.


                                                CONCLUSION

[24]   Based on the foregoing, we conclude that the State produced sufficient evidence

       to prove beyond a reasonable doubt that Smith committed battery.


       Court of Appeals of Indiana | Opinion | 49A05-1409-CR-400 | May 13, 2015   Page 12 of 13
[25]   Affirmed.


[26]   Bailey, J. and Barnes, J. concur




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