Court of Appeals of Indiana | Memorandum Decision 79A05-1601-CR-26 | November 23, 2016 Page 1 of 16

MEMORANDUM DECISION

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

Bruce W. Graham

Graham Law Firm P.C.

Lafayette, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Paula J. Beller

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Wilma Beatrice Allen,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff. 

November 23, 2016

Court of Appeals Case No. 

79A05-1601-CR-26

Appeal from the Tippecanoe 

Circuit Court 

The Honorable Thomas H. Busch, 

Judge

Trial Court Cause No. 

79C01-1507-F6-2

Brown, Judge.
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[1] Wilma Beatrice Allen appeals her conviction for battery as a level 6 felony. 

Allen raises one issue which we revise and restate as whether the evidence is 

sufficient to sustain her conviction. We affirm. 

Facts and Procedural History

[2] On July 6, 2015, Allen was at the apartment of her daughter Crystal in West 

Lafayette watching Crystal’s children, including five year old C.W. and ten 

year old B.B. Allen had been drinking beer that day. The children were 

playing hide and go seek, and C.W. had a pop bottle in his hand with water in 

it. C.W. did not know that B.B. was behind the couch, and B.B. “scared him 

and he threw the pop can up and it hit” Allen. Id. at 12. Allen retrieved a belt 

from Crystal’s bedroom and, in front of B.B., struck C.W. on the arm, injuring 

the skin on his arm. C.W. “was screaming,” “kept wanting [B.B.] to hold 

him,” and “wouldn’t let go of” B.B. Id. at 13. A few minutes later, Crystal

“came in and she started hollering” at Allen. Id. at 12. Crystal and Allen had a 

physical altercation, and Allen called the police. Before police arrived, Allen 

left the apartment. 

[3] Deputy Jon Eads of the Tippecanoe County Sheriff’s Department arrived at 

Crystal’s apartment and observed Chrystal standing outside of a van and 

children, including C.W., inside the van. Crystal identified C.W. as the person 

who was injured, and Deputy Eads observed that “skin was missing or had 

been removed from [C.W.’s] arm” and that there was “some bruising” and 

“minor welting.” Id. at 28. Deputy Eads noticed the injury “looked like a fresh 

injury.” Id. 
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[4] Deputy Dustin Treida arrived at the scene, obtained a description of Allen, and 

left to attempt to locate her. He located her walking on the side of a road 

speaking on her cell phone, and she was distraught and visibly upset. He 

noticed that Allen had blood on her hand and a laceration to her finger, and she 

told him that she “was jumped by her daughter Crystal” and that she received 

the injury to her hand when Crystal bit her. Id. at 37. Deputy Treida smelled 

the odor of alcohol and convinced Allen to cross the street to where medics 

with an ambulance were located to have her finger examined, and she was 

eventually transported to the hospital. Allen told Deputy Treida that she “had 

drank earlier in the evening.” Id. at 38. 

[5] About one to one and one-half hours after he spoke with Crystal, Deputy Eads 

spoke with Allen at the hospital. Allen “was very belligerent,” Deputy Eads 

could smell an odor of alcohol coming from her breath, and Allen “just kept 

very adamantly saying that the child had no injuries.” Id. at 31. Deputy Eads 

transported Allen to the jail, and during the trip Allen stated “that they were 

kids that were out of control and needed to be disciplined.” Id. 

[6] On July 13, 2015, the State charged Allen with battery of C.W. as a level 6

felony and with being an habitual offender. At Allen’s bench trial, the State 

presented the testimony of B.B., C.W., Deputy Eads, and Deputy Treida, and 

Allen testified on her own behalf and presented testimony from Crystal. During 

B.B.’s testimony, the deputy prosecutor asked what C.W.’s arm looked like 

after he was hit, and B.B. testified “[i]t looked like his meat was gone” and 

“[l]ike his skin.” Id. at 12-13. When asked “did baby C.W.’s arm look like that 
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before he got hit,” B.B. answered “[n]o,” and when asked how she knew Allen 

had been drinking beer, B.B. testified “[b]ecause all of the pop cans were on the 

side of the couch.” Id. at 13-14. When asked on cross-examination if the marks 

on C.W. were there before Allen struck him, B.B. answered “[n]o.” Id. at 15. 

On cross-examination, C.W. was asked whether they got “pennies hot and 

[threw] them at people,” and C.W. answered “I didn’t throw it,” and when 

asked “[h]ow did [M.] burn her grandmother,” C.W. stated “[s]he put it on 

stove” and “she put . . . the penny on the stove and then she . . . throw it at her 

and I said don’t do it and she did it.” Id. at 21. During Deputy Eads’s 

testimony, he indicated that C.W. was not taken to the hospital, that he was 

examined by medics at the scene, and that Crystal declined to have him 

transported to the hospital. 

[7] Allen testified that the injury to C.W.’s arm occurred prior to the day of July 

6th and that “the mark had been on C.W.[’s] arm for like – since June 30.” Id.

at 44. She stated that she did not place the mark on him with a belt or other 

instrument, that the mark had been caused by C.W. being burned with a hot 

penny, that she was burned by a hot penny on June 30th, and that she first 

noticed the mark on C.W.’s arm on July 3rd. She testified that she was born on 

July 3, 1964, and that the BMV mistakenly stated her birthday as July 3, 1963. 

She testified that she had not been drinking alcohol and did not yell at the

hospital. The court stated “tell me what a chastisement is,” and Allen stated “a 

spanking,” and the court asked “[w]hen did that occur,” and Allen testified 

“[t]his occurred July the 3rd.” Id. at 62. The court asked “[a]nd what did you 
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use to spank them,” and Allen answered “[i]t was a—do any one of you ladies 

got a belt on it was a little thin belt. That Crystal had to chastise them with.” 

Id. 

[8] Allen further testified that, on July 3rd, C.W. kept doing flips off of the stairs 

and two of the other children were arguing and hitting each other and she said 

“where is my belt.” Id. at 65. She stated “I said C.W. come on and as C.W. 

was begging back I sent (inaudible) C.W., I pulled his little leg and I gave him a 

little tap and he – I think C.W. was actually wanted something to complain 

about like you know what I’m saying this hurt,” “so this is when he discovered 

the scar and this was when me and Crystal discovered that the scar was on 

him,” and “[w]e didn’t know that the scar was on him until July the 3rd but a 

strong – is that this mark had happened on the 30th.” Id. at 65-66. Allen 

admitted to being an habitual offender. 

[9] Crystal testified that C.W. had a mark on the middle of his right arm and that, 

when she asked him what happened, he told her that Allen “had whooped him 

with a belt.” Id. at 72. She testified she noticed the injury on July 6th, that B.B. 

showed her what Allen did to C.W.’s arm, and that C.W. had no injuries to his 

arm prior to that date. 

[10] The court entered a Bench Trial Order in which it found that the State had 

proven beyond a reasonable doubt that C.W. was less than fourteen years of 

age and Allen was at least eighteen years of age at the time of the offense, that 

Allen was drinking alcohol and there were beer cans near the couch, that Allen 
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smelled of alcohol, and that she had a belligerent behavior characteristic of 

intoxication. The court found that C.W. was too young to be a credible 

witness, that B.B. was a credible witness, and that B.B. testified that she and 

C.W. had been playing hide and seek, that C.W. spilled water on Allen, and 

that she saw Allen hit C.W. with a belt. It further found that C.W. “had a fresh 

wound on his arm, the bruise was fresh, the welts were fresh, and there was no 

scarring.” Appellant’s Appendix at 52. 

[11] The court further found that Allen’s testimony regarding what occurred is not 

credible, and that it is possible she was intoxicated to the extent she did not 

know what she was doing, but that was not a defense. The court credited her

testimony that the children were out of control, and it stated that Allen’s 

statement to an officer “that the children were out of control and needed 

discipline is not a complete admission, but tends to prove that she was 

attempting to discipline the victim on the date in question,” and that Allen “did 

admit to disciplining the children, including [C.W.], with a belt on a prior 

occasion.” Id. at 53. The court found that C.W. “is an active child who had 

been disobedient and engaged in mischief not only on prior occasions but also . 

. . on this occasion, which caused [Allen] to attempt to discipline him by 

striking him with a belt.” Id. The court stated, “[i]n conclusion, the Court finds 

beyond a reasonable doubt that on the occasion in question [Allen] was 

sleeping and intoxicated and the children were playing in an active manner 

which caused [C.W.] to spill water on [Allen],” that Allen “became angry, 

grabbed a belt and hit [C.W.] intentionally causing him injury in the form of 
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bruising and a welt and removing some skin, either whether living skin or a 

scab,” that “[s]he did not hit him in a rude manner or an insolent manner but 

she did hit him in an angry manner,” and that Allen “is guilty of . . . Battery on 

a Child Resulting in Moderate Bodily Injury.” Id. at 53-54. The court also 

noted that Allen admitted to being an habitual offender and found her to be an 

habitual offender. 

[12] In its sentencing order, the court found as aggravating factors that Allen has a 

history of criminal delinquent behavior,1 the victim was less than twelve years

of age at the time of the offense, Allen committed a crime of violence and 

knowingly committed it in the presence or within hearing of an individual who 

was less than eighteen years of age and not the victim of the offense, she

recently violated probation, parole, and pre-trial release, and she was in a 

position of trust. The court found as mitigating factors that there are substantial 

grounds tending to excuse or justify the crime, though failing to establish a 

defense, and that Allen has taken advantage of correctional rehabilitative 

programs while in prison. The court found that the aggravating circumstances 

outweighed the mitigating circumstances, sentenced Allen to two and one-half 

years for her conviction for battery as a level 6 felony, and enhanced the 

sentence by four years for her adjudication as an habitual offender, resulting in 

an aggregate sentence of six and one-half years. At the sentencing hearing, the 

 

1 At sentencing, the prosecutor stated that, by the State’s count, Allen has been arrested approximately 

seventy-nine times and has approximately twenty-six prior convictions over the last approximately thirty-two 

years. 
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court stated that it would consider a motion for modification upon Allen’s 

successful completion of the Purposeful Incarceration program. 

Discussion

[13] The issue is whether the evidence is sufficient to sustain Allen’s conviction for 

battery as a level 6 felony. When reviewing the sufficiency of the evidence to 

support a conviction, we must consider only the probative evidence and 

reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 

146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence.

Id. We consider conflicting evidence most favorably to the trial court’s ruling. 

Id. We affirm the conviction unless “no reasonable fact-finder could find the 

elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins 

v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence 

overcome every reasonable hypothesis of innocence. Id. at 147. The evidence 

is sufficient if an inference may reasonably be drawn from it to support the 

verdict. Id. 

[14] Allen contends that she was entitled to employ reasonable force upon her 

grandchild necessary for appropriate discipline, that the evidence is insufficient 

to rebut the claim of parental privilege, and accordingly her conviction for 

battery must be vacated. Specifically, she argues that “[a]n undercurrent in the 

trial revolved around ongoing discipline” and that she, as grandmother, was 

“entitled to use reasonable corporal punishment while disciplining the 

children.” Appellant’s Brief at 15. Allen states she is cognizant that her 

defense at trial was that she did not injure C.W. and argues that, “whatever her 
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defense was at trial, the State is still required to provide sufficient evidence to 

rebut parental privilege,” and that sufficiency of the evidence claims may be 

raised for the first time on direct appeal. Id. at 18. She argues that a fair 

assessment of the evidence places her in the parent-custodian category, that the 

court found that C.W. was an active child who had been disobedient and 

engaged in mischief on prior occasions and also on this occasion, that evidence 

supports the conclusion that discipline with a belt was and had been an 

accepted method of conduct correction, and that whether “the chastisement 

was disproportionate to the offense is of course a matter entrusted to the 

discretion of the trial court,” but that it is worthy of note that Allen testified that 

the injury to C.W.’s arm occurred in an unrelated incident discovered on July 3, 

2015, and that the testimony that the injury was fresh was not supported by 

medical testimony as C.W. was not injured seriously enough to receive medical 

attention. Id. at 20. 

[15] The State maintains that the evidence shows that C.W. was five years old and 

Allen was fifty-one years old at the time of the incident, that Allen struck C.W. 

with a belt with sufficient force to strip skin from his arm and to cause bruising 

and welting, and that this evidence is sufficient to show that Allen battered 

C.W. The State argues that a parental-privilege claim is an affirmative defense,

that Allen never claimed she was justified to batter C.W. under a theory of 

parental privilege, and that consequently she has waived any such claim on 

appeal. The State further argues that, even if Allen had asked the trial court to 

evaluate a claim of parental privilege, such a claim would have failed. It argues 
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that there is no evidence that Allen had assumed any of the obligations incident 

to parenting and that Allen was “nothing more than a babysitter.” Appellee’s 

Brief at 9. It also states that the defense requires that the battery have been 

reasonable and that “[t]he State cannot conceive of a disciplinary situation in 

which striking a five-year-old child with such force that skin is removed and 

welting and bruising occurs can be reasonable.” Id. 

[16] Ind. Code § 35-42-2-1 governs the offense of battery and, at the time of the 

offense, provided that “a person who knowingly or intentionally: (1) touches 

another person in a rude, insolent, or angry manner . . . commits battery, a 

Class B misdemeanor.” Ind. Code § 35-42-2-1 (eff. Jul. 1, 2014) (subsequently 

amended by Pub. L. No. 65-2016, § 33 (eff. Jul. 1, 2016)). “The offense . . . is a 

Level 6 felony if . . . (1) The offense results in moderate bodily injury to any 

other person . . . [or] (3) The offense is committed against a person less than 

fourteen (14) years of age and is committed by a person at least eighteen (18) 

years of age.” Ind. Code § 35-42-2-1(d) (eff. Jul. 1, 2014) (subsequently moved 

to subsection (e) by Pub. L. No. 65-2016, § 33 (eff. Jul. 1, 2016)). The State 

alleged that Allen, “a person at least eighteen (18) years of age, to wit: fifty-two 

(52) years of age, did knowingly or intentionally touch another person, to wit: 

C.W., a person less than fourteen (14) years of age, to wit: five (5) years of age, 

in a rude, insolent, or angry manner, or the offense results in moderate bodily 

injury to said C.W.” Appellant’s Appendix at 20. Further, the Indiana 

Supreme Court has observed that reasonable parental discipline constitutes a 
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defense to conduct that would otherwise constitute battery. See Willis v. State, 

888 N.E.2d 177, 181 (Ind. 2008). 

[17] The evidence most favorable to the conviction shows that, on July 6, 2015, 

Allen retrieved a belt and struck C.W. on the arm which resulted in some 

bruising and some skin being torn from C.W.’s arm. The record also reveals 

that, at the time of the offense, Allen was over eighteen years of age and C.W. 

was five years old. Allen does not argue on appeal that she did not strike C.W. 

or challenge the age of C.W. or her age at the time of the offense. See

Appellant’s Brief at 21 (“Allen understands that the court rejected her assertion 

that she did not injury [sic] C.W.”). The State presented evidence of a 

probative nature from which the trial court as the trier of fact could find beyond 

a reasonable doubt that Allen intentionally touched C.W. in an angry manner 

and that she was at least eighteen years of age and C.W. was less than fourteen 

years of age. 

[18] Having concluded that Allen’s conduct amounted to a battery as a level 6 

felony, we turn to Allen’s contention that the State failed to show that her 

conduct did not constitute reasonable parental discipline of C.W. Allen does 

not point to the record to show that she expressly raised the defense of parental 

discipline privilege below. Cf. Willis, 888 N.E.2d at 182-184 (noting that “[t]he 

defense of parental privilege, like self-defense, is a complete defense” and that, 

“[i]n response to a charge of battery, Willis raised the defense of parental 

discipline privilege”); see Ind. Trial Procedure Rule 8(C) (providing in part that 

“[a] responsive pleading shall set forth affirmatively and carry the burden of 
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proving . . . any other matter constituting an . . . affirmative defense”). To the 

extent the defense of parental discipline privilege constitutes an affirmative 

defense, we have previously noted that Ind. Trial Rule 15(B)2 “provides an 

escape hatch” and that “[i]f the issue is tried by the implied consent of the 

parties it is treated as if raised by the pleadings.” Clemons v. State, 996 N.E.2d 

1282, 1285-1286 (Ind. Ct. App. 2013) (citing Custer v. Plan Comm’n of City of 

Garrett, 699 N.E.2d 793, 795 (Ind. Ct. App. 1998) (citing Puckett v. McKinney,

175 Ind. App. 673, 676, 373 N.E.2d 909, 911 (1978) (holding that the defendant 

had not waived an affirmative defense even though he did not assert it in the 

pleadings as evidence which tended to establish the defense was elicited at trial 

and admitted without objection and thus that it may fairly be assumed the issue 

was tried with the implied consent of the parties))), trans. denied. 

[19] To the extent that the defense of parental discipline privilege was tried with the 

implied consent of the parties, we conclude the court could find that the defense 

 

2 Ind. Trial Rule 15(B) provides: 

Amendments to conform to the evidence. When issues not raised by the pleadings are 

tried by express or implied consent of the parties, they shall be treated in all respects as if 

they had been raised in the pleadings. Such amendment of the pleadings as may be 

necessary to cause them to conform to the evidence and to raise these issues may be made 

upon motion of any party at any time, even after judgment, but failure so to amend does 

not affect the result of the trial of these issues. If evidence is objected to at the trial on the 

ground that it is not within the issues made by the pleadings, the court may allow the 

pleadings to be amended and shall do so freely when the presentation of the merits of the 

action will be subserved thereby and the objecting party fails to satisfy the court that the 

admission of such evidence would prejudice him in maintaining his action or defense 

upon the merits. The court may grant a continuance to enable the objecting party to meet 

such evidence.
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was negated beyond a reasonable doubt and thus that reversal of Allen’s 

conviction is not warranted. See Clemons, 996 N.E.2d at 1287 (addressing the 

defense of necessity to the extent the defense was tried with the implied consent 

of the parties and concluding that reversal was not warranted on that basis). 

The Indiana Supreme Court has held that a parent’s fundamental liberty 

interest in maintaining a familial relationship with his or her children includes 

the right to direct the upbringing and education of children, “including the use 

of reasonable or moderate physical force to control behavior.” See Willis, 888 

N.E.2d at 180 (citing Ind. Code § 31-34-1-15(1)3 and noting the statute provides 

in part, “[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”). The Court observed that Indiana courts “have construed Indiana

Code section 35-41-3-1[4]

—the defense of legal authority—as including 

reasonable parental discipline that would otherwise constitute battery.” Id. at 

181. “A parent is privileged to apply such reasonable force or to impose such 

reasonable confinement upon his [or her] child as he [or she] reasonably 

believes to be necessary for its proper control, training, or education.” Id. at 

182 (citing RESTATEMENT OF THE LAW (SECOND) TORTS, § 147(1) (1965)). 

 

3 The section is titled “Effect of chapter on use of corporal punishment or religious practices.” 

4 Ind. Code § 35-41-3-1 provides: “A person is justified in engaging in conduct otherwise prohibited if he has 

legal authority to do so.”
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In determining whether force or confinement is reasonable for 

the control, training, or education of a child, the following factors 

are to be considered:

(a) whether the actor is a parent;

(b) the age, sex, and physical and mental condition of the 

child;

(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. (citing RESTATEMENT, supra, § 150). There may be other factors unique to a 

particular case that should be taken into consideration, and not all of the listed 

factors may be relevant or applicable in every case, “[b]ut in either event they 

should be balanced against each other, giving appropriate weight as the 

circumstances dictate, in determining whether the force is reasonable.” Id. 

[20] The record reveals that C.W. was Allen’s grandchild, that Allen had been 

drinking alcohol, and that, after C.W. threw a can up and it struck Allen, Allen 

retrieved a belt and struck C.W. resulting in skin being torn from C.W.’s arm. 

The evidence supports the determination that Allen struck C.W. with a belt in 

anger and hard enough to cause bruising and torn skin. B.B. testified that “[i]t 

looked like his meat was gone” and “[l]ike his skin.” Transcript at 12-13. 
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Deputy Eads testified that “it’s almost like a home base type diagram inside of 

his arm,” “[t]hat is where skin was missing or had been removed from his arm,” 

“[i]f you’re looking at his perspective some bruising and there was some minor 

welting,” and that “[i]t looked like a fresh injury” in that he did not see any 

scabbing or healing process. Id. at 28. The State also presented photographs of 

the injury which the court examined. 

[21] We conclude that a reasonable trier of fact could find, based upon the testimony 

and evidence presented, that the force used by Allen was not reasonably 

necessary or appropriate under the circumstances and disproportionate to the 

offense and that the defense of parental discipline privilege was negated beyond 

a reasonable doubt. Reversal of Allen’s battery conviction is not warranted on 

the basis that her conduct constituted reasonable parental discipline. See Smith

v. State, 34 N.E.3d 252, 254-257 (Ind. Ct. App. 2015) (holding that, despite the 

child’s egregious behavior and the apparent ineffectiveness of previous 

disciplinary attempts, the evidence was sufficient to show that the force 

employed by the defendant to discipline the child, which included the 

defendant using a belt to strike the thirteen-year-old child ten to twenty times on 

her arms, shoulder, and legs, even where the injuries were not serious enough 

to require medical attention, was unreasonable and exceeded the privilege 

allowed to parents); Hunter v. State, 950 N.E.2d 317, 321 (Ind. Ct. App. 2011)

(concluding the force employed by the defendant in forcefully striking the child 

with a belt approximately twenty times was unreasonable and thus the evidence 

was sufficient to rebut the alleged parental discipline privilege). 
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Conclusion

[22] For the foregoing reasons, we affirm Allen’s conviction for battery as a level 6 

felony. 

[23] Affirmed. 

Robb, J., and Mathias, J., concur.