Kaennetra Scisney v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 13 2020, 9:56 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin Wild Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
Alexis Sizemore
Certified Legal Intern
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kaennetra Scisney, November 13, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-378
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant W.
Appellee-Plaintiff Hawkins, Judge
The Honorable Peggy Hart,
Magistrate
Trial Court Cause No.
49G05-1806-F5-18613
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May, Judge.
[1] Kennetra Scisney 1 appeals her conviction of Level 6 felony domestic battery
against a person less than fourteen years of age. 2 She presents two issues for
our consideration, which we restate as: (1) whether the State presented
sufficient evidence that Scisney touched K.S. in a rude, insolent, or angry
manner, and (2) whether the State presented sufficient evidence to disprove
Scisney’s affirmative defense of parental privilege. We affirm.
Facts and Procedural History
[2] Scisney is K.S.’s mother. At the time of the incident, K.S. was twelve years old.
Scisney had full custody of K.S., but K.S. often spent the night at her father’s
house. On June 5, 2018, K.S. arrived at a school gymnasium to attend her
younger sister’s kindergarten graduation with her father, uncle, aunt, and
grandmother. K.S.’s grandmother told K.S. that Scisney was in the hallway
and wanted to speak to K.S. When K.S. and her grandmother saw Scisney,
Scisney appeared angry. Scisney testified at trial that she was upset because she
had not given K.S. permission to attend the kindergarten graduation. Scisney
took the balloons K.S. was holding away from her and instructed K.S. to give
1
Throughout the Record, Scisney’s name is spelled either “Kaennetra” or “Kennetra.” Our coversheet uses
“Kaennetra” to be consistent with the trial court records. (See Appealed Order at 1.) However, we have
spelled her name “Kennetra” to match the spelling she provided at trial. (Tr. Vol. II at 74.)
2
Ind. Code § 35-42-2-1.3(b)(5).
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the present she was holding to her grandmother. K.S. complied, and Scisney
pulled K.S. by her arm and told K.S. to come with her.
[3] K.S. attempted to “yank” her arm away from Scisney and K.S.’s grandmother
yelled for the rest of the family to help. (Tr. Vol. II at 47.) K.S.’s grandmother
attempted to pull K.S. away from Scisney. K.S. fell, and Scisney fell on top of
her. K.S.’s father and other members of the family exited the gym and
attempted to separate K.S. and Scisney. At some point during the altercation,
Scisney pulled K.S.’s hair. A teacher entered the hallway and broke up the
fight. K.S.’s grandmother took K.S. to the school’s cafeteria and called the
police. When they arrived, police observed a scratch on the side of K.S.’s face,
hair pulled from her scalp, and redness on her arm.
[4] On June 11, 2018, the State charged Scisney with Level 5 felony battery
resulting in bodily injury against a person less than fourteen years of age 3 and
Level 5 felony domestic battery resulting in bodily injury to a person less than
fourteen years of age. 4 The trial court held a bench trial on December 12, 2019,
and convicted Scisney of the lesser-included offense of Level 6 felony domestic
battery to a person less than fourteen years of age. On January 21, 2020, the
trial court sentenced Scisney to 541 days suspended to probation.
3
Ind. Code § 35-42-2-1.3(c)(5)(A).
4
Ind. Code § 35-42-2-1(g)(5)(B).
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Discussion and Decision
[5] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
fact-finder’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the
fact-finder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the fact-finder’s verdict. Id. We affirm a
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. Id. It is therefore not necessary that the
evidence overcome every reasonable hypothesis of innocence; rather, the
evidence is sufficient if an inference reasonably may be drawn from it to support
the fact-finder’s decision. Id. at 147.
1. Elements of the Offense
[6] To prove Scisney committed Level 6 felony domestic battery against a person
under the age of fourteen, the State was required to provide sufficient evidence
Scisney and K.S. were members of the same family or household, Scisney was
at least eighteen years of age, K.S. was less than fourteen years of age, and
Scisney “knowingly or intentionally” touched K.S. “in a rude, insolent or angry
manner[.]” Ind. Code § 35-42-2-1.3(b). Scisney argues the State did not present
evidence she touched K.S. in a rude, insolent, or angry manner because K.S.
did not definitively testify that Scisney pulled K.S.’s hair during the altercation.
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[7] “Evidence of touching, however slight, is sufficient to support a conviction for
battery.” Adetokunbo v. State, 29 N.E.3d 1277, 1280 (Ind. Ct. App. 2015).
When asked if Scisney pulled her hair, K.S. responded, “No. She probably did
when I was on the floor.” (Tr. Vol. II at 49.) Later in her testimony, K.S.
stated, “[Scisney] pulled my hair.” (Id. at 50.) Scisney’s argument that this
discrepancy in K.S.’s testimony negates an element of the crime is an invitation
for us to reweigh evidence and judge the credibility of witnesses, which we
cannot do. See Drane, 867 N.E.2d at 146 (appellate court cannot reweigh
evidence or judge the credibility of witnesses).
[8] Further, Scisney does not dispute that she grabbed and pulled K.S.’s arm or that
a teacher had to pull Scisney off of K.S. while the two were on the floor. These
actions alone are sufficient to prove Scisney committed Level 6 felony domestic
battery against a person under the age of fourteen. See Stephenson v. State, 53
N.E.3d 557, 560 (Ind. Ct. App. 2016) (affirming battery conviction based on
evidence that Stephenson grabbed, scratched, and pushed victim, causing her to
fall on the coffee table).
2. Parental Privilege
[9] A person is generally “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 a parent to engage in reasonable
discipline of her child, even if such conduct would otherwise be battery. State v.
Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008), reh’g denied. As a standard for
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determining applicability of the parental privilege, our Indiana Supreme Court
adopted the following language from the Restatement of the Law (Second)
Torts § 147(1) (1965): “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). Thus, Scisney
could assert the parental privilege if: (1) her use of force in disciplining K.S. was
reasonable, or (2) her belief that such force was necessary to control K.S. and
prevent misconduct was reasonable. See Barocas v. State, 949 N.E.2d 1256, 1259
(Ind. Ct. App. 2011) (setting forth requirements for claim of parental privilege).
[10] The defense of parental privilege, like self-defense, is a complete defense.
Willis, 888 N.E.2d at 182. In other words, a valid claim of parental privilege is
a legal justification for an otherwise criminal act. Id. To negate a claim of
parental privilege, the State must disprove beyond a reasonable doubt at least
one element of the defense, either by direct rebuttal or by relying on the
sufficiency of the evidence in its case-in-chief. Id. Scisney argues the State did
not disprove that her actions were protected under the affirmative defense of
parental privilege.
[11] However, Scisney did not present parental privilege as an affirmative defense in
the trial court, and an affirmative defense cannot be raised for the first time on
appeal. Lafary v. Lafary, 476 N.E.2d 155, 159 (Ind. Ct. App. 1985). We cannot
review the record to determine whether the State failed to disprove a defense
that the State was not on notice that it needed to disprove. The State would
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have had the opportunity to present evidence and argument before the trial
court, and the trial court would have had the opportunity to make the initial
finding as to Scisney’s defense. Our role as an appellate court is distinct from
the role assigned to the trial court, see Whiteco Industries, Inc. v. Nickolick, 549
N.E.2d 396, 398 (Ind. Ct. App. 1990) (“[T]rial courts of this state exclusively
hear and weigh the evidence and inferences arising therefrom, and assess the
credibility of witnesses, to determine the facts prior to entering judgment or
taking other action. Courts of appeal have no such authority.”), and we cannot
stand in the trial court’s shoes in the way Scisney asks. Accordingly, her
argument fails.
Conclusion
[12] The State presented sufficient evidence that Scisney committed Level 6 felony
domestic battery against a person under the age of fourteen, and we are unable
to consider her arguments regarding parental privilege because an affirmative
defense cannot be raised for the first time on appeal. Accordingly, we affirm.
[13] Affirmed.
Riley, J., and Altice, J., concur.
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