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.
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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
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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.
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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
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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.
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[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.
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