we do apologize for the delay this makes things a little interesting and requires a lot of phone calls and clicking and things that take time so hopefully we have not delayed important issues on your part but we will begin then with mr russo thank you good morning your honour's counsel may have please the court my name is richard russo  representing charles boyer the appellant defendant in this matter in this case the state failed to prove that charles boyer the sixty one year old man acted on reasonably in disciplining his fifteen year old daughter the focus of the state argument is twofold st they argue that charles has waived the parental discipline argument because it was not properly planned as an affirmative defense before during the trial nd the state argues that the trial court properly found dros daughter to be more credible than charles during her trial testimony i'd like to address that nd issue st i don't believe that credibility is the issue here and further for the sake of this argument even if we only consider the testimony of the daughter the parental argument the parental discipline argument would still be viable she testified on page twenty seven of the record that he took my ear buds out so i would listen to him on page seventeen he started yelling at me that i should not treat him that way and that i was to listen to him and then on page sixteen she said i did i said i did not want to be talked to i'm sorry i'm not in the best mood right now i continued to wash the dishes did not want to have a conversation with someone he ripped them out of my ears so i would be able to hear him because he was angry that i was not listening to him now when we do also consider just the parts of mr boyers testimony that were consistent with his daughter's statements it further clarifies this point or also testified between pages sixty eight dollars seventy cents of the record that i reached up and pulled out her left ear but i took her arm wanting her to turn around toward me i caressed her left arm between her shoulder and elbow closer to her oboe i think i kept a hold of her to keep from falling she grabbed the crotch and started hitting me with it then between pages seventy five and eighty he further testified it annoyed me i don't think children should be allowed to dictate to their parents the let them talk to them i had to tell or something about the dog after i tried repeatedly to get her to talk to me or listen i got up and approached her she made it very clear that she knew i was there and she wasn't going to talk to me now they don't disagree on basically what happened they just have a very different perspective on the one hand we have a teenage daughter who sees charles as a harassing an overbearing burden that she's being forced to tolerate or deal with when she's admittedly in a bad mood and stayed home from school on the other hand we have charles who's a father recovering from a significant surgery that he had just a few days before this incident he ceases teenage daughter was being intentionally rude and disobedient and he did what he did to try to compel her attention by removing her headphones and physically turning her and holding her in front of him so that he could talk to her now during that process he did apparently cause a bruise or a red mark on her arm but that mere fact that the bruise or markets there does not make his conduct any less reasonable in greenwich was cited in our brief the court said that the presence or in that case the absence of a physical injury was not determinative of reasonable to discipline rather the action in and of itself is to be judged as to whether it was reasonable or unreasonable in green the situation was a mother who was witnessed by several people in a school parking lot striking her ten year old son eight to sixteen times with a snow brush she apparently did not cause any physical injury but under the circumstances present in that case the court found her action to be on reasonable parental discipline our case is much different though because in our case charles did not strike his daughter in any way he simply grabbed her to get her attention and held her in place well he attempted to speak to her charles had an absolute right to reasonably discipline his minor child this is a right that cannot be waived and that must be rebutted by the state in order to prove that he acted without lawful authority and was in fact guilty of domestic battery beyond a reasonable doubt the right to parental discipline is a common law right which has been recognized by only courts since the  as the state of knowledge to their brief and this court recognized in green brunel discipline is not an affirmative defense under the only compiled statutes and i would argue that it follows that is therefore not required to be pled in writing or otherwise prior to or during the trial and while it is true that charles's trial counsel did not explicitly argue the parental right to discipline a child but charles and his daughter gave testimony which for purposes of domestic violence cases they define the word abuse as meaning physical abuse harassment or intimidation of a dependent interference with personal liberty or well for willful deprivation also cited in our brief now the state primarily relied upon people worse is largely for its argument that charles has waived his right to parental discipline argument this was a wrong interpretation of that case though st of all the cases are factually very distinguishable in barkly the defendant was convicted of attempted assault after attempting to light an orderly in a hospital who was adjusting his restraints no affirmative defense for self defense was previously filed or pled the defendant simply testified that he did not intend to bite the orderly and he was only biting hit his restraints in the orderly just happened to be in his way the trial court there for the court there rather found that it could not see any lawful authority for trying to bite off one's restraints and therefore when the defendant turned his head and lunged toward the orderly he was in fact committing an assault the court further held the defendant had forfeited the affirmative defense of self defense because it was not properly raised or part in the trial court however the court further held that found that the assault statute language without lawful authority was not an element in the offense of the attempt to saw here however because of the common law rule that allows for reasonable parental discipline the phrase without lawful authority is an element that absolutely needs to be proved beyond a reasonable doubt for domestic battery much as the court and bart  that in a case where someone is charged with home invasion the state must prove one's lack of a lawful authority to enter the home in order to prove the home invasion charge here the state must also show that one lacks the lawful authority to discipline a child in order to successfully prove a domestic battery further said that the main reason a defendant must to sipek lee raise an affirmative defense is to alert the state as to what it must rebut now here the state was absolutely aware that the defendant was the father of b all of the witnesses testified as much in the very nature of the domestic battery charge requires a type of familial relationship the testimony that was offered by both charles and his daughter as to what transpired between them that evening with very plainly a disciplinary action by the father and the state therefore needed to show that charles actions went beyond the realm of reasonable discipline and in fact amounted to a criminal offense of domestic battery so the question really should be whether charles physical discipline of his teenage daughter essentially by grabbing her by the arm and holding her in place to look and listen to him was so unreasonable that it amounts to the criminal offense of domestic battery with the myth that his conduct was reasonable was not in any way excessive or without lawful authority and therefore the state felt guilty beyond a reasonable doubt of domestic battery we ask that you reverse is conviction in the court below and i am not prepared to answer any questions you may have thank you mr reese so i just just jorgensen do you have any questions and my question is is it your position then that this is not an affirmative defense yes your honor so the state in its case in chief should rebut parental discipline in domestic battery charges where the victim and the defendant are parent and child i would suggest that certainly in a case where the defendant is a parent in the victim is a child and there is testimony that supports that for that argument that it would be the state's all right with me but my point is where would that testimony co if there is no notice to the state that this will be the defense well i think that if it's not something that they need to give notice of i think that the without lawful authority part of the statute would require them to prove beyond a reasonable doubt that the defendant acted without lawful authority when the defendant is in fact a parent in the victim is his child i think the state then has to prove that what he did was outside of his lawful authority child why wouldn't the state here simply assume that you were going to suggest either that it be this conduct never occurred just it never happened or some other defense why would there be any assumption that it was parental discipline well i would say in this case they would not need to assume that that was the case both parties had made statements to the police which the state was in possession of when preparing for the case the state's own witness testified as to what happened in her testimony was essentially that she was in a bad mood you don't want anything to do with her dad she was completely ignoring him and that he used force to try to compel her to listen to him so i mean does it matter here that the that both testify that the father was angry i don't think it does i mean i would argue that in most cases where a parent is disciplining a child there are some level of anger or displeasure  and that's what's brought about the circumstances where the parent feels they need to intervene with some sort of discipline so it is your position then that the defense need not give the state any notice not in the form of raising  affirmative defense orally suggesting anything short of closing argument that i don't believe my position is that they did the defendant is not required to give any notice beyond simply the testimony that's presented at trial that that asserts that this is what happened what what the circumstances were that led to the incident i think that it's incumbent upon the state in any case where they're prosecuting a parent for a battery against their child i think that's just something that should be automatic this should assume we have to show that this was not reasonable  question thank you can counsel in in cases that we review we usually defer to the trial court on issues of credibility because we can read the transcript but we can't observe body language see the faces whatever the case may be i think there is some reference in this record about maybe some of the faces that the  using while she was testifying but that was someone's interpretation as opposed to a seeing her face as she testified so how then do we  w do we disregard that credibility even if it's just a matter of interpretation they're both telling the same story but the trial judge says i believe her story as opposed to the defendant's story well again i think the issue here is not one of credibility of who told the who told the truth or who was more believable i think the the problem that we're asserting happened here was simply that neither the state nor the trial judge ever considered the parental discipline aspect of the case and the case was apparently decided on just as if these were two strangers in this was an interaction that happened between them but that they believed the daughter's version or the father's version and was more credible and the judge clearly found that he believed that the daughter's version of what happened was more credible but i think for the purposes of our argument even if we assume that that the daughter's testimony was one hundred percent accurate i think by her own statements she said that she was ignoring her dad he was getting upset with her because she was ignoring him in that he physically removed her headphones and held her telling her that he wanted her to listen to him so i i don't think i really need to resolve the issue of who was more credible i think if you just take her own judge was concerned about the headphones and possibly the ponytail but the real issue was the fingers on the arm that the officer saw that were pretty clear at that point in time and the fact that although the daughter is made to in some way striking the defendant there are no visible marks on the defendant so does that does that account relate to his credibility or who he believes versus who he didn't believe as it's completely well i would say certainly that was apparently something the judge considered he mentioned it i don't know what relevance it would have whether the father had any visible injuries when the daughter did admit to striking him  multiple times and i believe specifically on page twenty two of the record she said that she hit his head because she was wanted to get away from him and then she did that two or three more times so i mean again i don't think that the credibility of the witnesses should be the issue that needs to be focused on here but rather if you take the daughter's testimony on its face she describes a situation where her father was unhappy with her disrespectful behavior and was trying to compel her to do what he wanted her to do that is the very definition of a parental discipline type of situation i think the fact that nobody addressed that in the court below as being one of the things that was considered i think it was incumbent upon the state to prove that he acted without a lawful authority and i think it's clear in this case he had the lawful authority to discipline his daughter because she would not listen to him at that particular time about a dog that had been terribly whining and scratching through most of the day while she was home that is that you believe is sufficient again i think what the courts and i think what this court said in people versus greene was that the results of the interaction is not the focus of the argument the argument is whether what he did was reasonable and i would say certainly a father  grabbing hold of his fifteen year old daughter by the arm and holding her in place while he attempted to speak to her was reasonable i think when you further consider that he was essentially on one leg at the time  the surgery just a few days before that i mean that would further explain why he was holding on to her in the way that he was especially after she started hitting him so i again i think that there's nothing unreasonable about taking a sixteen year old or a fifteen year old rather by the arm and holding them well what you try to address them as a parent i thank you very much sir  office on behalf of the people may please the court the defendant in this case does not dispute that the state proved the elements of domestic battery beyond a reasonable doubt the only issue it far is whether the state also disproved an affirmative bardsley is directly on point and controlling in this case in so far as defendant suggests in his reply brief that trial counsel was ineffective for not overtly raising the affirmative defense the people would know that that argument is also forfeited forfeiture issues aside under the current standards defendants claim nonetheless fails construing the facts in the light most favorable to the people there was no evidence of any parental parental right to discipline being an issue in this case the tra forte expressly found defendant's testimony to be incredible and even under even considering either party the victim or the defendant's version of events neither version showed that defendant was in any way intentionally disciplining his daughter when he grabbed her arm to the extent that it caused the injuries and it's the contact that formed the basis of the conviction for domestic battery rather defendant testified that he was acting in a manner of self preservation because the daughter was the aggressor and he was the victim so for those reasons and everything outlined in our brief including the fact that the trial judge as the finder of fact in a bench trial and i think the court acknowledge that that's actually part of the problem is that in a situation like this where there is no what you don't say you know express their statutory or rule based requirement for a  formal notification that that you cannot raise it to the st time on appeal this court in bardsley somewhat punted i should say for lack of a better word deciding how much he needs to come out basically that i would suggest and point this court to obviously the body of case law out there that would apply to other types of affirmative defenses and that's to look at the evidence to see if if it was in fact quarter the quote raised  and i would say again this is this case is in the same posture as are in place so i would suggest that this court again need not address that issue but again it would be if there was any slight evidence but i would liken it to if this had been a jury trial instead of a bench trial that would have triggered the need for some type of instruction there is no i p i i believe on the issue of this particular defense but there are cases out there where defense attorneys have requested not  m struction so it's very clear from this record that if this had been a jury trial there would have been no request for instruction because it was not the defense theory at trial and i would kind of in response to opposing  facts just don't support that defense so i think what defendant is suggesting is almost that the state is somehow obliged to argue that in closing argument which of course is not evidence even if defense counsel doesn't argue it and that that defense attorneys in the state perceive a little differently than they would in a jury trial i am a little more informal if you will is it isn't it incumbent or isn't it inclusive than in the facts of this arguing and presenting witnesses that you know the defendant did testify that was his daughter and he didn't like to be disrespected said rob you quote state and her from all of the evidence that did in fact was a parent child relationship in a parental discipline case i would say no i think that defendant position which he just outlined is that any time you have a parent child relationship that the parental right to go support or would automatically be at issue and i am aware of no case law suggests that i would also suggest that mode of thinking would again be contrary to the general concept of affirmative defense is although this is kind of a unique of affirmative but sounds based on the nature of it as well as the fact on the part of the law of a statutory i would think the same principles apply and again and  the whole idea that the states can't be caught in the position where they have to is to support and were but every possible the time that could be out there in a  misdemeanor case that that makes no sense so the purpose having the defendant in some way raised it either be through the fact or through testimony  you have to have wasn't it wasn't evident from the police report no i think that i think that just the fact that it's a father and child doesn't give rise to that automatic assumption that reasonable principled discipline might be at play you could have a factual scenario where a parent simply starts punching the child and that would get would not be a situation where just by virtue of suggesting that it was incumbent on the state based on the nature of the relationship to infer that that to some sort of plot i would disagree and then i would also say even if you are even if you assume for the sake of argument  it was just proven there was the testimony both from the daughter who the the judge found credible and the defendant who the judge found incredible both their versions of events don't support a finding that defendant was and then it was the pulling of the cords and then it was the grabbing of her arm and the pulling of her hair there's no indication that he's disciplining her for something he was just attacking her and then by his account he only grabbed her arm because she started hitting him st and he being injured due to his surgery was trying to maintain d its balance so he places he never portrayed as a discipline situation it was a  he was actually preserving himself from a from a teen daughter who was attacking him according to him so and then i would also again submit that this wasn't done child so even again if you take all the evidence thank you thank you i have a couple of questions is there any evidence in this record been that the defendant wanted to tell his  daughter that he really liked her outfit that day or that he was hoping she felt better because she didn't go to school today or if the evidence pretty clear that he did not want to be disrespected when he wanted to discuss with  a point of concern i believe the only evidence as to what his motive was in in starting the interaction with his daughter came from  him and that was that something about the dog was barking and she had been home i don't believe there was any evidence from the victim regard and that would it make sense that she would know his motives however again i would say that the trial court found that to be expressly found him to be incredible so even if that's and that's where the credibility comes in i disagree with the counsel opposing  counsel so in finding the defend that that testimony incredible i believe that that provides further support for the argument that the trial court is presume to know the law and that the state met all the elements met their burden with respect to all the evidence including any any not expressly raised affirmative defense but the trial george didn't say that he didn't believe the defendant said i want to talk to you about the credibility issue really boils down to how those fingerprints got there when there weren't a lot of there wasn't any damage from being being struck i believe the trial court two to the defendant in general and his demeanor on the stand and the fact that he found the defendant incredible him a little d unhappy as you said that the issue really was preservation you know it it had nothing to do with discipline didn't he say or didn't he testify that he asked to talk to our couple times and she wouldn't respond and when he did try actually got her attention she was disrespectful in that she was hitting him he yes and in an attempt to get away from him i believe as she as he was dragging her by her hair and pulling her by her arm she admitted to hitting him with her horn i believe armfuls head his account rd and that he claims that she was the st one to strike and that she struck him with his crotch several times and then also heard of the lever that was about the head as well and then also well he he had to have already turned her round and surprised her as you describe attacked her was on her before this all happened right how is she going to hit him over his head or over her head correct  pulled he pulled the cord that startled her i believe she said she turned and then he grabbed her and her hair and it was while during while he had that grip on her that she was according to her testimony hitting on his head in an attempt to get away all right i don't have any other questions thank you thank you mr russo do you have any brief reply yes first of all the state argues that we don't disagree that they proved all of the elements of the offense but that's not accurate we're saying that they did not prove that mr gore acted without lawful the they raised the question are the circumstances of if this has been a jury trial there would have been no jury instruction submitted but i'm not sure how they could determine that and i would direct the court's attention to people versus roberts cited in our case which was a situation where the defendant in that case with conflicted up domestic battery of his sixteen year old daughter in very similar circumstances and the court refused to submit his request to jury instructions on the right to discipline the child and that was ultimately sent back for them to a new trial where that should be submitted according to the court and robert what we're talking about here is an issue that needs to be addressed not just in this specific circumstance but in any situation where a parent is forced to try to use physical discipline for an unruly child specifically an older child like is the case here and i think what we're finding is that we're seeing cases more and more where you're finding loving and caring parents that are put at criminal j exercising their constitutional right to exercise reasonable discipline over their minor children and i think this case is a prime example of that but the state argues that the version of events that were testified to don't support the argument that this was an issue of parental discipline but i mean the daughter herself testified that he took her ear buds out because she wouldn't listen to them and then he yelled at her that she couldn't treat him that way and that he was to listen to him i mean clearly that's an acknowledgment by her the death exactly why this happened she knew that's why this happened and the bottom line was she was in a bad mood and didn't want to deal with it so i don't i think  the version of events that were testified to specifically by the daughter do support this argument and as far as the argument that it was self preservation and that was dismissed as not credible well ther testimony that there was some self preservation involved that was only after the initial contact of trying to get her to listen and then he testified that as she was hitting him or pulling away that he lost his balance and held on tighter i think that only went to the issue of the degree of force that was used to hold not to why he initially approached her and like to build it in the st place and my final point your honour's it is that the state says well we should assume that the judge knows the laws and the judge considered all of this and that may be the case however in this case this judge did make specific findings of fact here and he went through his list and basically what he said was he was making his decision based on he's assessment of credibility he did not mention in any way that he considered parental discipline as a factor in making its decision and in finding mr boyer guilty and we would submit because he did not mention that he considered that we have to assume that he did not in i would suggest that if he hadn't factor applied a parental discipline assessment to the circumstances this is clearly a situation where this is a parent disciplining a child that should have been the determination that was made and that didn't happen here and i would submit to the court that nothing that mr boyer did during this alter cation he very much different from what parents all across this country do every day in stores and other public places when they have a child that's not listening and not obeying them again we would ask that you reverse this conviction thank you  or as part of the fact pattern here going into the case and that once the defense raises some testimony or some evidence to indicate that this was discipline then th is then on notice and in its rebuttal has to prove or disprove i guess rebut the parental discipline defense that the gist of and i believe they do your honor because i believe in order to prove that he acted without lawful authority they have to show that this was not a circumstance where he was exercising his right to discipline a child could they also just simply say that that the evidence is incredible as  to discipline would that be an option for the state perhaps and certainly and in circumstances like in a lot of these cases i mean you know if he had used his crotch and started hitting the girl and said he did that to get her attention well that would probably be unreasonable but i don't think that taking out your buds and physically turning her to face him rises to the level of something that someone reasonable that it amounts to criminal conduct all right so him grabbing her arm that was out of necessity you know initially he testified that he grabbed her arm to hold her there so that she couldn't continue to ignore me that he wanted to talk to her when he said it became necessity was at some point when she started hitting him he council for your arguments today we appreciate your attendance and your arguments we will take this matter under advisement we will issue a decision in due course and i believe now we will stand the journey for the day and we will leave