                                                                     FILED
      MEMORANDUM DECISION                                       Aug 17 2016, 7:25 am

                                                                     CLERK
                                                                 Indiana Supreme Court
      Pursuant to Ind. Appellate Rule 65(D), this                   Court of Appeals
                                                                      and Tax Court
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Larry F. Whitham                                         Gregory F. Zoeller
      Whitham, Hebenstreit & Zubek, LLP                        Attorney General of Indiana
      Indianapolis, Indiana
                                                               Chandra K. Hein
                                                               Deputy Attorney General
      John W. Campbell
                                                               Indianapolis, Indiana
      Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Alvin C. Putman,                                         August 17, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               25A03-1512-CR-2253
              v.                                               Appeal from the Fulton Superior
                                                               Court.
                                                               The Honorable Wayne E. Steele,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 25D01-1401-FC-39




      Shepard, Senior Judge

[1]   Alvin C. Putman accidentally recorded himself beating his grandchild. The

      trial court determined he was guilty of battery, a Class A misdemeanor. Ind.

      Code section 35-42-2-1 (2012). Putman challenges the evidence supporting his

      conviction. Finding the evidence sufficient, we affirm.


      Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2253 | August 17, 2016   Page 1 of 6
                                                     Issue
[2]   Putman raises one issue: whether the State presented sufficient evidence to

      disprove his defense of parental privilege.


                               Facts and Procedural History
[3]   On January 6, 2014, seventy-year-old Putman babysat his five-year-old

      grandson, K.P., at his office. K.P.’s biological father was not involved in K.P.’s

      life, and Putman acted as a father figure. Putman and his daughter, K.P.’s

      mother, were aware that K.P. had behavioral challenges, specifically, he was

      prone to violent “meltdowns.” Tr. p. 29; State’s Ex. 3A, p. 2. After the

      incident at issue here, K.P. was diagnosed with Asperger’s Syndrome and

      Oppositional Defiant Disorder.


[4]   Early on the 6th, Putman called his bank on his mobile phone. Later that day,

      he inadvertently called the bank again, and the bank’s telephone recording

      system activated. As Putman prepared to leave his office, he told K.P. to put

      on his coat, and K.P. refused. The bank’s recording system captured a loud,

      four-minute beating. The next day, bank employees listened to the recording

      and called the police. An officer came to the bank, listened to the recording,

      and recognized Putman’s voice.


[5]   The State charged Putman with neglect of a dependent, strangulation, and

      battery on a child resulting in bodily injury, a Class D felony. After a bench

      trial, the court determined Putman was guilty of battery and not guilty of the



      Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2253 | August 17, 2016   Page 2 of 6
      remaining charges. At the sentencing hearing, the court treated the battery as a

      Class A misdemeanor and sentenced Putman accordingly.


                                   Discussion and Decision
[6]   Putman argues the court erred in determining he was guilty of battery because

      the record reflects he was engaging in reasonable discipline of K.P. The State

      responds that it presented evidence disproving Putman’s claim of parental

      privilege.


[7]   Indiana Code section 35-41-3-1 (1977) provides, “A person is justified in

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

      Indiana’s courts have interpreted that statute as applying to reasonable parental

      discipline that would otherwise constitute battery. Willis v. State, 888 N.E.2d

      177 (Ind. 2008). As a result, a valid claim of parental privilege in disciplining a

      child is, like self-defense, a complete defense to an otherwise criminal act. Id.

      A parent is privileged to apply such reasonable force or confinement as the

      parent reasonably believes necessary for proper control, training, or education.

      Id.


[8]   To negate a claim of parental privilege, the State must disprove the defense

      beyond a reasonable doubt. Id. It 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 or her child was unreasonable. Ceaser v. State, 964 N.E.2d 911 (Ind.

      Ct. App. 2012), trans. denied. On appeal, we neither reweigh the evidence nor

      judge the credibility of the witnesses. Smith v. State, 34 N.E.3d 252 (Ind. Ct.

      Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2253 | August 17, 2016   Page 3 of 6
       App. 2015). We affirm unless no reasonable fact-finder could have found the

       elements of the offense proven beyond a reasonable doubt. Steele v. State, 42

       N.E.3d 138 (Ind. Ct. App. 2015).


[9]    In determining whether the use of force for discipline was reasonable, courts

       may consider the following factors:

               (a) whether the actor is the parent;
               (b) the age, sex, and physical and mental condition of the child;
               (c) the nature of the child’s offense and apparent motive;
               (d) the influence of the child’s 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.
       Willis, 888 N.E.3d at 182.

[10]   The recording of the incident is chastening. When K.P. refused to put on his

       coat, Putman became angry. One can hear the sounds of Putman striking K.P.

       several times and breathing heavily. The four-minute recording captured K.P

       repeatedly screaming “Ow! Ow! Ow!” and crying in fear. State’s Ex. 1. At one

       point, K.P. coughed repeatedly, and Putman responded sarcastically, “Yeah,

       cough cough cough.” Id. Next, K.P. screamed, “You’re choking me!” and

       Putman said, “You think I care?” Id.


[11]   Over the course of the recording, Putman yelled at K.P., threatening to put him

       “out in the f*****g snow.” Id. He also said, “Your mama can’t do nothing

       with you” and “I’m so tired of [K.P.]. Tired!” Putman expressed a wish that
       Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2253 | August 17, 2016   Page 4 of 6
       K.P. would “go home and never, never come to town! Never!” Id. He shouted

       “God damn you!” and called K.P. “smart-assed,” “smart-mouthed,” and a

       “baby.” Id. At the end of the recording, Putman yelled, “When grandpa says

       something, I mean now!” Id.


[12]   Although Putman acted as K.P.’s parent, he used unreasonable and

       disproportionate force in response to K.P.’s mere refusal to put on a coat. K.P.

       was five years old and has several behavioral disorders that render him less able

       to respond appropriately to direction. Further, Putman’s physical assault

       interfered with K.P.’s ability to breathe, and Putman callously professed not to

       care. To the contrary, Putman punctuated the beating with hateful insults. He

       later admitted to a police officer that he has anger issues. State’s Ex. 3A. In

       addition, the beating was likely to cause serious harm. A doctor testified at trial

       that corporal punishment is inappropriate for a child with Asperger’s Syndrome

       and could result in psychological harm.


[13]   Appellant’s counsel observes that Putman’s use of force did not result in visible

       bodily injury. He urges that the published appeals of similar cases have ended

       in reversal or dismissal where there was none. We think this presses the

       published case law, but even if counsel were right, the State correctly points to

       Indiana Code section 35-31.5-2-29 (2012), which includes “physical pain” in

       the definition of bodily injury. A reasonable finder of fact could infer from

       K.P.’s screams and choking that Putman caused him to experience physical

       pain.



       Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2253 | August 17, 2016   Page 5 of 6
[14]   Finally, Putman argues he did not actually obstruct K.P.’s breathing, but that

       he instead merely spanked K.P. and that K.P. misstated what Putman was

       doing. This argument amounts to a request to reweigh the evidence. The State

       presented sufficient evidence to disprove Putman’s defense of parental privilege.

       See Matthew v. State, 892 N.E.2d 695, 699 (Ind. Ct. App. 2008) (evidence

       sufficient where parent repeatedly struck child over a period of time, even

       though attack did not result in “permanent physical damage”), trans. denied.


                                                Conclusion
[15]   For the reasons stated above, we affirm the judgment of the trial court.


[16]   Affirmed.


       Najam, J., and Pyle, J., concur.




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