Anthony M. Cleveland v. State of Indiana (mem. dec.) ( 2015 )

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.
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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
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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),
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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
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father to the child. We therefore affirm Cleveland’s Class D felony battery
conviction.
Affirmed.
Kirsch, J., and Bradford, J., concur.
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