Court of Appeals of Indiana | Opinion 18A-CR-812 | September 27, 2018 Page 1 of 8

ATTORNEY FOR APPELLANT

Donald J. Frew

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caryn N. Szyper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Joseph B. Fernanders, III,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 27, 2018

Court of Appeals Case No.

18A-CR-812

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D06-1706-F6-749

Bailey, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-812 | September 27, 2018 Page 2 of 8

Case Summary

[1] Following a jury trial, Joseph B. Fernanders, III (“Fernanders”), was convicted 

of Battery, as a Level 6 felony.1 He now appeals.

[2] We affirm.

Issues

[3] Fernanders raises two issues, which we restate as follows:

I. Whether the State presented sufficient evidence to refute

his defense of parental privilege to discipline his child; and

II. Whether he received ineffective assistance of counsel due 

to counsel’s failure to timely disclose certain witnesses.

Facts and Procedural History

[4] In early 2017, A.F. was six years old. Her first-grade teacher used a “color 

chart” system to keep track of student behavior. Under the system, each 

student’s name was on a clip. Every day, the student started with the clip on 

“green.” For good behavior, the student could move up to “blue” or “purple.” 

If the student received a warning, the student would move to “yellow.” If the 

student continued to misbehave, the student might move to “orange” for a visit

 

1

Ind. Code § 35-42-2-1(c)(1), -1(e)(3).
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to the office or “red” for a phone call home. At the end of the day, the teacher 

would record the student’s color status on a paper that the student took home.

[5] Fernanders is A.F.’s father. Under an early-2017 arrangement, Fernanders and 

his ex-wife, Cassandra Ort (“Ort”), shared physical custody of A.F. and her 

older sister, R.F. On February 8, 2017, the girls stayed with Fernanders after 

school. Fernanders found out that A.F. was marked “yellow” that day for 

talking out of turn. A.F. received the warning for shouting an answer before 

the teacher had called on her. This was A.F.’s third “yellow,” and she had 

received previous warnings for similar behavior. Fernanders told A.F. to go 

upstairs, which she did. A.F. then prepared to be punished, pulling her pants 

and underwear down, and leaning over a bed. Fernanders spanked A.F. on her 

buttocks multiple times with a belt. Afterward, he told A.F. to clean her room. 

Downstairs, R.F.—eight years old at the time—had heard A.F. screaming for a 

long time. R.F. noticed that A.F. seemed to limp when she came downstairs.

[6] Although A.F. usually slept on her back, she spent that night “going . . . side to 

side” because “it was hurting.” Tr. Vol. II at 115-16. The next morning, A.F. 

was still in pain, and was moving “back and forth a little bit” as she sat on the 

school bus to school. Id. at 116. After school that day, A.F. and R.F. went to 

Ort’s residence. When A.F. bathed that evening and R.F. came in to give her a 

towel, R.F. froze when she saw bruises on A.F.’s buttocks and leg. R.F. 

summoned Ort, who took pictures of the bruising and called the police.
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[7] The State charged Fernanders with Battery and Domestic Battery2 as Level 6 

felonies. A jury trial was held on February 8, 2018, at which Fernanders

admitted to spanking A.F., but claimed a privilege to discipline A.F. At trial, 

Fernanders sought to elicit testimony from two of his children “as it relates to 

discipline, that’s it, no additional questions other than that.” Id. at 182. The 

State objected because Fernanders had not timely disclosed the witnesses and 

because there was “no indication that these other children were present at the 

time” of the spanking. Id. The trial court ultimately excluded the testimony. 

Later, the jury found Fernanders guilty of Battery and not guilty of Domestic 

Battery. The court imposed a two-year sentence, fully suspended to probation.

[8] Fernanders now appeals.

Discussion and Decision

Parental Discipline

[9] To obtain the instant conviction of Battery, the State was obligated to prove 

that Fernanders knowingly or intentionally touched A.F. in a rude, insolent, or 

angry manner when Fernanders was over the age of eighteen and A.F. was 

under the age of fourteen. See I.C. 35-42-2-1(c)(1), -1(e)(3). Fernanders does 

 

2

I.C. § 35-42-2-1.3.
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not dispute that there is sufficient evidence supporting these statutory elements. 

Rather, he argues that the State failed to refute his defense of parental privilege.

[10] Under Indiana Code Section 35-41-3-1, “[a] person is justified in engaging in 

conduct otherwise prohibited if he has legal authority to do so.” Moreover, a

parent has legal authority—sometimes referred to as the “parental discipline 

privilege”—to “apply such reasonable force” upon his child as the parent 

“reasonably believes to be necessary for . . . proper control, training, or 

education.” Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008) (quotation marks 

omitted) (adopting the Restatement (Second) of Torts § 147 (Am. Law Inst. 

1965)). When a defendant claims this privilege, “the State must disprove at 

least one element of the defense beyond a reasonable doubt.” Id. Thus, “the 

State 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 [the] child and 

prevent misconduct was unreasonable.” Id. The State may refute the defense

“by direct rebuttal or by relying upon the sufficiency of the evidence in its casein-chief.” Id. Ultimately, “[t]he decision of whether a claim of parental 

privilege has been disproved is entrusted to the fact-finder.” Id.

[11] Where—as here—the defendant alleges that the State failed to refute his claim 

of parental privilege, we apply “the same . . . standard [as] for any sufficiency 

claim.” Id. at 182-83. That is, “we look only at the probative evidence and 

reasonable inferences supporting the verdict” and “[w]e do not assess the 

credibility of witnesses or reweigh the evidence.” Love v. State, 73 N.E.3d 693, 
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696 (Ind. 2017). “Unless no reasonable factfinder could find the defendant 

guilty, we affirm.” Jones v. State, 87 N.E.3d 450, 454 (Ind. 2017).

[12] Fernanders spanked A.F. on her bare buttocks with a belt, multiple times, with 

sufficient force to leave large bruises and to cause A.F. to limp afterward. In 

the hours after the spanking, A.F. had difficulty sleeping on her back and sitting 

on the school bus. Fernanders spanked A.F. because she volunteered an 

answer in class before her first-grade teacher called on her, and because A.F. 

had spoken out of turn on prior occasions at school. On appeal, Fernanders 

argues that it was reasonable for him to spank A.F., and asserts that the 

“spanking was nothing more than a progressive response to a continuing 

behavior problem demonstrated by the child.” Appellant’s Br. at 14. However, 

in evaluating the reasonableness of the discipline, the jury is free to consider 

factors such as the age of the child, the nature of the disobedience, and whether 

the use of force is disproportionate to the “offense.” Willis, 888 N.E.2d at 182. 

Ultimately, the evidence supports a reasonable conclusion that Fernanders used 

an unreasonable amount of force when disciplining six-year-old A.F. for her 

misbehavior. Thus, we conclude that the State presented sufficient evidence to 

refute the defense of parental privilege.

Ineffective Assistance of Counsel

[13] Fernanders alleges that he received ineffective assistance of counsel in violation 

of the Sixth Amendment to the United States Constitution. To prevail on this 

claim, Fernanders must establish both elements of the Strickland test: (1) that 
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counsel’s performance was deficient and (2) that the deficient performance 

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (Ind. 1984); 

Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). As to the first element, 

Fernanders points out that trial counsel failed to timely disclose two witnesses. 

Assuming arguendo that counsel’s performance was deficient, Fernanders must 

nevertheless demonstrate resulting prejudice, which requires a showing “that 

there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is 

a probability sufficient to undermine confidence in the outcome.” Strickland, 

466 U.S. at 694.

[14] Because of counsel’s untimely disclosure, Fernanders could not question two of 

his children about disciplinary matters. Notably, however, Fernanders already 

had the opportunity to question two of his children: A.F. and R.F. Moreover, 

Fernanders testified about his approach to discipline as did his girlfriend, who 

was in the residence when Fernanders spanked A.F. It appears, then, that 

Fernanders is alleging prejudice from the inability to present merely cumulative 

testimony. Yet, this sort of prejudice “has not been shown to be great enough, 

standing alone, to satisfy the second prong of the Strickland test.” Smith v. State, 

547 N.E.2d 817, 819 (Ind. 1989) (involving the exclusion of testimony that 

appeared to be “merely cumulative to that of the five alibi witnesses who did 

testify at trial”). Furthermore, as there is no indication that the potential 

witnesses were present when Fernanders spanked A.F., the testimony would 

have had little bearing on the key question before the jury—which is not 
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whether Fernanders was usually a reasonable disciplinarian, but instead whether 

his discipline was reasonable on this occasion. We ultimately conclude that

Fernanders has failed to demonstrate a reasonable probability that, had he been 

able to present the testimony, the result of the trial would have been different.

[15] Affirmed.

Baker, J., and Bradford, J., concur.