Anthony M. Cleveland v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 16, 2015
• Docket: 84A01-1501-CR-26
• Status: Published

Opinion

MEMORANDUM DECISION Jun 16 2015, 8:55 am Pursuant to Ind. Appellate Rule 65(D), this 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.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana

Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony M. Cleveland, June 16, 2015

Appellant-Defendant, Court of Appeals Case No. 84A01-1501-CR-26 v. Appeal from the Vigo County Superior Court State of Indiana, The Honorable David R. Bolk, Judge Appellee-Plaintiff Case No. 84D03-1301-FD-215

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 84A01-1501-CR-26 | June 16, 2015 Page 1 of 5 Case Summary [1] Anthony M. Cleveland appeals his conviction for Class D felony battery of a

child. He challenges the sufficiency of the evidence supporting his conviction

by raising the parental-privilege defense. Given that Cleveland raises this

defense for the first time on appeal and because there is no evidence to support

it, we affirm.

Facts and Procedural History [2] In January 2013 nine-year-old T.C. was living with Cassandra Ryan, his

guardian. Cassandra was dating Cleveland at the time. One evening, T.C.,

Cassandra, and Cleveland attended a gathering at a nearby home. The adults at

the gathering, including Cleveland, were drinking alcohol. Tr. p. 69, 79.

Around midnight, when Cleveland told T.C. it was time to go home, T.C.

began to whine and told Cleveland that he did not want to go. Id. at 39. T.C.

“shrugged away” from Cleveland and began to yell. Id. at 73. Cleveland

became angry, grabbed T.C., and pushed him until he fell down. Id. at 73, 81,

90. Cleveland also put his hands around T.C.’s neck for about ninety seconds,

which hurt the child. Id. at 33-34, 73, 90, 91. T.C., scared and crying, did not

fight back. Id. at 90.

[3] Another adult, Eric Poole, intervened. Id. at 75, 92. Cleveland spit in Eric’s

face and the two men began to fight outside. Id. at 75-76. After another adult

fired a gun, a neighbor called police. Id. at 44, 77. When police arrived, they

Court of Appeals of Indiana | Memorandum Decision 84A01-1501-CR-26 | June 16, 2015 Page 2 of 5 observed red finger marks on T.C.’s neck “consistent with someone being

grabbed by the throat.” Id. at 63, 65.

[4] The State charged Cleveland with Class D felony battery of a child. At his jury

trial, Cleveland disputed the State’s claim that he put his hands on T.C.’s neck

and attempted to discredit the State’s witnesses. Cleveland was convicted as

charged, and the trial court sentenced him to eighteen months in the Indiana

Department of Correction. See Appellant’s App. p. 125-26.

[5] Cleveland now appeals.

Discussion and Decision [6] Cleveland challenges the sufficiency of the evidence supporting his conviction

by raising the parental-privilege defense. In asserting the defense, Cleveland

argues that he was a person acting in loco parentis, or in place of a parent.

[7] To convict Cleveland as charged, the State was required to prove beyond a

reasonable doubt that he knowingly or intentionally touched another person

less than fourteen years old in a rude, insolent, or angry manner. See Ind. Code

Ann. § 35-42-2-1(a)(2)(B) (West 2012); Appellant’s App. p. 11 (charging

information). However, “[a] person is justified in engaging in conduct

otherwise prohibited if he has legal authority to do so.” Ind. Code § 35-41-3-1.

This statute has been interpreted to provide legal authority for parents to engage

in reasonable discipline of their child, even if such conduct would otherwise

constitute battery. State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008),

Court of Appeals of Indiana | Memorandum Decision 84A01-1501-CR-26 | June 16, 2015 Page 3 of 5 reh’g denied. Thus, “[a] parent is privileged to apply such reasonable force or to

impose such reasonable confinement upon his . . . child as he . . . reasonably

believes to be necessary for [the child’s] proper control, training, or education.”

Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008) (quotation omitted). Custodians

who are persons in loco parentis have the right to use reasonable corporal

punishment on a child. McReynolds v. State, 901 N.E.2d 1149, 1153 (Ind. Ct.

App. 2009).

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

battery of a child. Willis, 888 N.E.2d at 182. “[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 parental-privilege

claim by direct rebuttal or by relying upon the sufficiency of the evidence in its

case-in-chief. Id.

[9] But here, Cleveland did not assert the parental-privilege defense at trial. As a

result of this failure, he has waived this claim. See Lafary v. Lafary, 476 N.E.2d

155, 159 (Ind. Ct. App. 1985) (holding that affirmative defenses cannot be

raised for the first time on appeal). Waiver notwithstanding, there is simply no

evidence to support Cleveland’s claim that he was a person acting in loco

parentis. Although Cleveland was romantically involved with T.C.’s guardian

Cassandra, there is no evidence that he had the responsibilities of a father or

stepfather, made parenting decisions regarding T.C., or otherwise behaved as a

Court of Appeals of Indiana | Memorandum Decision 84A01-1501-CR-26 | June 16, 2015 Page 4 of 5 father to the child. We therefore affirm Cleveland’s Class D felony battery

conviction.

Affirmed.

Kirsch, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A01-1501-CR-26 | June 16, 2015 Page 5 of 5