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: ATTORNEYS FOR APPELLEE:
JILL M. ACKLIN GREGORY F. ZOELLER
Westfield, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
FILED
Feb 14 2012, 9:24 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
ROY A. DINWIDDIE, )
)
Appellant-Defendant, )
)
vs. ) No. 90A02-1106-CR-569
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable James A. Heimann, Senior Judge
Cause No. 90C01-0503-FD-37
February 14, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Roy A. Dinwiddie (Dinwiddie), appeals his conviction for
battery, a Class D felony, Ind. Code § 35-42-2-1.
We affirm.
ISSUE
Dinwiddie raises one issue on appeal, which we restate as follows: Whether the
State produced sufficient evidence to prove beyond a reasonable doubt that he committed
battery.
FACTS AND PROCEDURAL HISTORY
On February 26, 2005, Patricia Dinwiddie (Patricia) was preparing a bath for her
seven year old daughter D.D. when Patricia noticed bruising on D.D.’s buttocks. Patricia
learned that D.D. had received the bruises from her father, Dinwiddie, from whom
Patricia was divorced. Pursuant to a custody arrangement, D.D. spent the weekdays with
her father and three weekends a month with her mother. According to D.D., during one
of the weeks that she had spent in her father’s custody, Dinwiddie had hit her on the
buttocks with a belt as punishment each time she had answered one of her math
homework problems incorrectly. D.D. started to cry when she told her mother about the
incident.
After discovering D.D.’s bruises, Patricia took D.D. to the Ossian Police
Department and also to the Woodlawn Hospital Emergency Room in order to report the
injuries. The emergency room doctor who treated D.D. concluded that her bruises were
2
consistent with being struck by a belt and reported the bruises as suspicious for child
abuse.
On March 23, 2005, the State filed an Information charging Dinwiddie with
battery, a Class D felony, I.C. § 35-42-2-1. On April 19, 2011, a jury trial was held, and
Dinwiddie was found guilty as charged. On May 27, 2011, the trial court sentenced
Dinwiddie to 18 months, with all but 120 days suspended.
Dinwiddie now appeals. Additional facts will be provided as necessary.
DISCUSSION
In reviewing a sufficiency of the evidence claim, this court does not reweigh
evidence or judge the credibility of witnesses. Perez v. State, 872 N.E.2d 208, 213 (Ind.
Ct. App. 2007), trans. denied. In addition, we only consider the evidence most favorable
to the verdict and the reasonable inferences stemming from that evidence. Id. We will
only reverse a conviction when reasonable persons would not be able to form inferences
as to each material element of the offense. Id. at 212-13.
In order to convict Dinwiddie of battery as a Class D felony, the State was
required to prove beyond a reasonable doubt that he “knowingly or intentionally
touch[ed] another person in a rude, insolent, or angry manner,” that touch “result[ed] in
bodily injury to a person less than fourteen (14) years of age,” and that Dinwiddie was
over eighteen years of age. I.C. § 35-42-2-2(a)(2). On appeal, Dinwiddie does not
dispute that he hit D.D. with a belt, but he asserts that recent case law suggests that
3
parents should not be subject to criminal liability for discipline that causes transient pain
and temporary bruising. See Willis v. State, 888 N.E.2d 177, 184 (Ind. 2008).
In Willis, the supreme court acknowledged that while Indiana has not codified a
parental discipline privilege, our courts have construed I.C. § 35-41-3-1 as including
reasonable parental discipline that would otherwise constitute battery. Id. at 181. The
Willis court noted that this interpretation is consistent with our recognition that parents
have a fundamental interest in directing the upbringing and education of their children, as
well as I.C. § 31-34-1-15, which governs circumstances under which a child is a child in
need of services. Section 31-34-1-15 provides that “[t]his chapter does not . . . [l]imit the
right of a parent, guardian, or custodian of a child to use reasonable corporal punishment
when disciplining the child.” Id. at 180.
However, a trial court may still enter judgment against a parent for battery if the
State provides sufficient evidence that (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 and
prevent misconduct was unreasonable. Id. at 182. The State may refute a claim of
parental privilege by direct rebuttal or by relying on the sufficiency of the evidence in its
case-in-chief. Id. The decision of whether a claim of parental privilege has been
disproved is entrusted to the fact-finder. Id. To guide us in determining whether a
parent’s force is unreasonable, the supreme court provided a non-exhaustive list of
factors for consideration:
(a) Whether the actor is a parent;
(b) the age, sex, and physical and mental condition of the child;
4
(c) the nature of his offense and his apparent motive;
(d) the influence of his 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.
Id.
In light of the above factors and our deference to the fact-finder in sufficiency
cases, we conclude that there was sufficient evidence that Dinwiddie used unreasonable
force under the circumstances and, therefore, committed a battery not protected by the
parental privilege. First, we note that at seven years old, D.D. was a young and
impressionable child. We do acknowledge that it is likely that Dinwiddie’s motivation
was primarily to encourage D.D. to answer her homework problems correctly, but we
find that a reasonable person could perceive his actions as unnecessary to compel
obedience to a proper command and disproportionate to D.D.’s offense. There is no
evidence that D.D. acted out of defiance or rebelliousness, as there was in Willis, where
Willis’ son purposefully lied to her about stealing her underwear and bringing it to
another student at school. See id. at 179-80. The record also reveals that Dinwiddie hit
D.D. with a belt not once, but multiple times—once each time she answered a question
incorrectly. D.D. testified at trial that the belt hurt and that she cried. She was still
emotionally upset about the incident days later and cried when she recounted it to her
mother.
5
Finally, we find it significant that the jury was instructed about the defense of
parental privilege in final jury instruction number 7 and chose not to apply the privilege.
As we stated above, it is not our place on appeal to reweigh the evidence on appeal.
Perez, 872 N.E.2d at 213. Thus, we conclude that the State provided sufficient evidence
that Dinwiddie committed battery.
CONCLUSION
Based on the foregoing, we conclude that the State produced sufficient evidence to
prove beyond a reasonable doubt that Dinwiddie committed battery.
Affirmed.
FRIEDLANDER, J. and MATHIAS, J. concur
6
Roy A. Dinwiddie v. State of Indiana
Combined Opinion