it please the court counsel good afternoon my name is and even under represents the appellant joshua downey mr downey appeals from a conviction for domestic battery following a bench trial  rock and county mr downey was originally charged with domestic battery and essentially the central issue at trial was whether is spanking of his children or his child rather on his past conduct and how he had disciplined his child in the past which distracted from the issue that should have been before the core which was whether the conduct in the instance situation was reasonable or not and that is due in large part to the trial court's questioning of the witnesses and eliciting information and evidence that would otherwise be inadmissible and it the court's questioning and the direction in which the court took the trial  opposed to even the state that allowed the trial to bere off in two directions that were not only not relevant but were highly prejudicial to the b and in doing so he trial court completely ignored the factors that it is consider when determining whether corporal punishment is reasonable and those are for shorthand factors which are numerated in the first district case that came out in two thousand and seventeen and as i say that in my brief the court does not  knowledge the factors or go into more go into the factors as far as a term in whether the conduct in this case is reasonable or not the court instead well i think that when we have a bench trial we have an additional we have sort of additional evidence of how the trier of fact came to its conclusion that we normally would have with a jury trial and that the court usually explains its rationale for why it received why it arrived at its verdict i whereas you wouldn't have that in a jury trial i don't think that that necessarily changes the standard are you if that's what you're alluding to i mean we just have additional commentary from the court as to how it arrived at its verdict which gives us additional insight into how that trier of fact was analyzing the evidence which i think that for for the in the context of some of these arguments specifically the ones that were not preserved in the in the lower courts that beg gives us some insight into the prejudice pronk of those of the second their argument of my brief as well because they were able to tell from the court's commentary exactly what the court was relying on in reaching its verdict in making its determination and if the court was relying on evidence that should have been otherwise admissible and that is something that demonstrates for the purpose of appellate review the point that the defendant is trying to make  here so i don't think the fact that it's a it's a bench trial there's a jury trial would change the standard of review or the way that the reviewing court's going to look at the evidence but it certainly gives us insight as to what the trial court was thinking especially in this particularly case when the trial court was taking such an active role in not only the development of the evidence but it was almost as if the trial core was conducting its own inquisition of the witnesses as if it had developed a theory from the beginning of the case and it was trying to  harvest evidence from these witnesses in order to support their ear and i think that in doing so this became much less about whether the printed discipline was reasonable and much more so about whether the parenting techniques of both parents frankly because there was there was discussion of the mother spanking the child as well  whether that parental discipline was appropriate and whether those parents were raising that child appropriately and i think that if you look at at the evidence not necessarily in a vacuum but isolated from these other bad acts that were frequently elicited throughout the trial that it is reasonable spanking a child ten times is reasonable under these particular circumstances and what is unique about this case is that you have a child who is highly sensitive to to environmental stimuli because of his autism you have a mother who is highly sensitive to this situation because her marriage is basically on the brink and at that point she is gathering evidence in and his patient of a future proceeding in family court and you lose sight of the fact that the the discipline if you want to if you want to say that that was that was given by the parent to the child was really no different than discipline that's given elsewhere all the time and the well it's it's difficult to to look at certain aspects of of corporal punishment as being reasonable or not especially in a vacuum it doesn't make sense to to look at those acts in the context of bowl prior acts or in the acts of another each case is unique in its own right each set of facts is unique in its own right and there's a different dynamic between parents and child in every family and i think that a fact that is also important but that was lost on the trial court is that this person is is technically a child he's thirteen years old but he's also  hundred seventy pounds which is larger than a lot of adult males and so spanking one hundred seventy pound basically adult sized  person over the course of a period of minutes trying to get him out of bed get him moving get him going in the right direction is reasonable and i don't think that this would have ever resulted in a phone call to the police had the mother not been in this prepare eous marital situation with the defendant because this is the type of thing that  that goes on in households and to one extent or another with mothers and fathers and their teenage children every day and it's it's a tough type of case to make term nation as to whether this was a criminal act or not but i think that if the actual offense conduct in this case or what they're alleging occurred is looked at in the conduct of the entire circumstances of what what went on that morning which is one of the factors that the parit core requires the the finder of fact to look at then i think that it is reasonable fact was looking at evidence and con in context of this past conduct these past paintings that were described in sermon ing whether it was reasonable based on whether the spanking in this particular instance was harder or the same as prior spankings and the court in its ruling kind of talks out of both sides of its mouth because it says  well you know the the standard as to whether it's reasonable isn't whether this is how you always spank the child so therefore this is reasonable so in other words the courts acknowledging that the reasonableness of this instance is engaged or connected to the past conduct but then in its determination of the defendant's guilt it talks about the repeated beatings of the child so it clearly sees this conduct as part of a continuum that ultimately culminates in this but one of the pair factors is the likelihood of future punishment that be maybe more injurious and there is no evidence that the conduct in this case was going to necessarily lead to something worse down the down the line this wasn't a situation where there had been evidence of escalating domestic battery where a well i i'm not going to question the wisdom of that that ruling those are the factors that the first district says that that they should be considered by mike to your point though i think that in starting to think about what could come after or what has come before you start to get in  a situation where you're ignoring what the defendants actually on trial for and i think that if in this case let's say you put out all of that evidence the other crime evidence described in section two of this case this would be a lot different case this would look entirely different and this would not be a case where you know the father is constant it's constantly being brought up the father in the mother the child this would simply be the court evaluating whether ten slaps on the box in trying to get this child out of bed is a criminal offense and whether the state frankly can intervene in that parent's privacy right to discipline their child because that's ultimately what we're talking about is at eleven spanx is that something where the state can come in and tell that the parent that they crossed the line what about nine what was the difference between nine  eleven so i don't think that the court is looking to establish some sort of bright line rule as to how many spankings would be reasonable or not  but i think that this case does touch on some very important issues as to the power of government to enter the privacy the individual's home in tell the parent what is appropriate or not with respect to disciplining their child because this wasn't a case like the other cases that i've cited in my brief including parrot where this is a parent that's just merciless mercilessly beating their child because they're angry or drunk or whatever this is a parent that is justifiably frustrated maybe not being the most appropriate in the way that that he handles this adult sized child with with learning difficulties but someone who nonetheless is doing the best that he can to get this kid out of be and for anything else i will reserve that for rebutt missible or one which we disagree with and to the only question of for this court in this case whether i would say this would be whether this was a jury trial or whether this was with a bench trial domestic battery mental state of knowledge no justification and act by any means for bodily harm and five household member if you just pick those elements and apply the evidence sounds anything else anything else is that was  all of the facts are here all the testimony is here even from the lips of the defendant it would be sufficient to establish all these elements now the only question is the reasonable amount of discipline that's that's the issue ok that's the issue is whether or not all of these facts that establish all of elements of the crime of the mystic battery ok whether or not here exceeded anything the dad ever done but it went beyond that it was too much we have a police officer who saw welts on the child red marks on the child and had some sort of a bruise across the chest because we not only have spanking but we have a child being picked up and being shoved against the cabinet or address rushes excuse me and been present at the child the victim testified to self was very state said no the trial judge said no foul just said just looking at the facts even though she meant she may have later said something about all the prior incidents she did say in considering what he did understood king at what he did on this day i'm not looking at anything else i was looking what he did and what he did was not reasonable it was not necessary and if you take a look and listen you read and see what the victim fro the defendant here wasn't as disappointed he was lashing out he was angry and that is one of the things that you look at in trying to determine whether or not what he did was reasonable or not and the other business and the thing this time in january twenty fourth whatever it was i have another thing different things in the past he relies upon the past spankings in support of fact i did nothing different so it's that double edged sword it really cuts both there are always i've come to see there are always many many alternatives that can be that can be done it can and can affect something ok the fact that this particular situation took just course that's why we're all here and so you know that that's but again all i can take and say is that in this particular case if you just take a look at what was done had said to you no told the defendant if you can stop so all of this i think explains it gives a verbal picture if you will as to what was happening and so therefore we think that the trial judge in this case when you assess her judgment just like you would assess the jury's judgment on a reasonable doubt the facts established the fact finder could have found that this was not reasonable discipline obviously the state says three points the first being that the defense wasn't that this is how i always done it or how we've always done in our family and therefore this specific instance is reasonable and incorporated that into his argument in small part at least but that wasn't the thrust of the defense that wasn't the way the focus of mr downey's testimony the defense was that it was reasonable and on that point that leads me to my second point which is that the weather conduct is reasonable a objective standard and it would be highly unusual if to evaluate whether something was reasonable under that objective standard that we would look to that particular individual past conduct so for instance when we're looking at whether an a police officer's use of force for instance would be reasonable we don't look at what that particular police officer always did or didn't do in the past we compare him to all other officers and that's our continuum and whether that officers conduct falls on the reasonable or unreasonable side of that continuum is what we use the term and whether that the conduct that we're evaluating is objectively reasonable or not the conduct is reasonable and i don't think that it's i mean it certainly matters what type of relationship these actors in the situation have for one another if if that's think that that should have been admissible at trial so i don't think that that's something that the court should have been evaluating in the first place because she even does the court even does refer to these instances i think that the court used the term domestic abuse so i don't think that it makes a difference whether the the accused or the complaining witness have a prior relationship to evaluating whether the accused conduct was reasonable under the circumstances because if that were the case then if we were evaluating whether a police officer's use of force was reasonable we would be unable to determine that if we were unable to determine what kind of relationship the officer had to the individual who the force was used upon so i don't think that it really matters what kind of relationship you cuse has to the complaining witness i think that ultimately the the accuser's behavior is to be looked at subjectively to determine whether it's reasonable our position is that when looked at in that way when setting aside the evidence that should not been of been admitted in the first place that the defendant should have been acquitted therefore respectfully we asked the