Alvin C. Putman v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 17, 2016
• Docket: 25A03-1512-CR-2253
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 25A03-1512-CR-2253 | August 17, 2016 Page 6 of 6