Mitchell v. State

• Decision Date: 16 August 2004
• Docket Number: No. 49A02-0311-CR-973.,49A02-0311-CR-973.
• Citation: 813 N.E.2d 422
• Parties: Douglas M. MITCHELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

813 N.E.2d 422

Douglas M. MITCHELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0311-CR-973.

Court of Appeals of Indiana.

August 16, 2004.

Transfer Denied November 10, 2004.

Tommy L. Strunk, Fishers, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Douglas Mitchell appeals his convictions for battery with injury to a child as a Class D felony¹ and disorderly conduct as a Class B misdemeanor.² We affirm both convictions, finding that Mitchell's conduct exceeded his legal authority to discipline his child; that Mitchell did not have to be asked to stop making unreasonable noise by a law enforcement officer in order to be convicted of disorderly conduct; that his constitutional right to free expression was not implicated because there was no state action; and that it was harmless error for the trial court to determine that Dr. An, Mitchell's wife, could not qualify as an expert witness.

Facts and Procedural History

One afternoon in June 2002, two Methodist Hospital ("Methodist") employees, Christy Rohrman and Christopher Wilson, were exiting the hospital cafeteria when they heard Mitchell yelling at his child. Mitchell and his two children, a two-year-old and four-year-old M.M., were at Methodist visiting Dr. Caroline An, Mitchell's wife and the children's mother. According to Wilson, Mitchell was yelling at M.M. "to pick up the f***ing bottle," and Mitchell was holding M.M. by his shirt, with M.M.'s face about a foot above the bottle on the ground. Tr. p. 44. Mitchell then picked up M.M. by his shirt and threw the child over his right shoulder, all the while clutching the two-year-old in the crook of his left arm. Shortly thereafter, M.M. was either dropped or slid off Mitchell's shoulder to the floor, falling from approximately two to three feet in the air. According to Rohrman, Mitchell then swung his leg toward his son — "like you would kick a kickball"³ — while continuing to yell that M.M. was a "`f***ing spoiled brat.' He was just in such a chaotic rage he probably doesn't even remember what he was saying...." Id. at 38.

Rohrman, followed by Wilson, ran after Mitchell to confront him in the hospital parking lot about his behavior. Observing that the two-year-old was sliding out of his left arm into a sort of headlock position while Mitchell continued to yell at M.M. as he placed him in the backseat of his vehicle, Rohrman called out, "Sir, sir. Stop. You can't treat your children that way." Id. at 48. Having placed M.M. in the vehicle, Mitchell wheeled around to shout at Rohrman face-to-face:

He was yelling and screaming right in my face and telling me that it was not any of my business[,] that his wife was a doctor there, and that his child was a `f***ing spoiled brat,' and he had to stay home with him everyday, and I didn't know what he had to go through with him and to mind my own business.

Id. at 38-9. Mitchell was standing so close to Rohrman that another employee intervened and asked Mitchell to step back. Rohrman requested that someone call security. When Rohrman approached the vehicle to write down Mitchell's license plate number, she observed M.M. acting "dazed" and crying. Id. at 40.

Meanwhile, Methodist security officers Cherle Harris and Dewayne Posley received a dispatch requesting them to report to the hospital lobby. Harris and Posley followed the assembled crowd out the front door and observed the altercation between Rohrman and Mitchell. The security officers approached Mitchell, asking if they could speak with him. According to Harris, "He refused to answer any of our questions.... He was very red.... He was loud. He was cursing.... He told me those were his f'ing kids. They were some spoiled ass brats. He has to do them like this because they are so damned spoiled...." Id. at 109-10. Concerned for the safety of the two-year-old, whom Mitchell was still clutching, Harris asked Mitchell repeatedly to hand over the baby, but Mitchell refused.

George Scott, a Clarian Safety and Security investigator and supervisor, was summoned to meet with the security officers detaining Mitchell. Mitchell told Scott that he was waiting on his wife, and he behaved in a very agitated manner. Scott testified that during this incident, he had to ask Mitchell repeatedly — "at least three times" — to calm down. Id. at 102. At some point, Mitchell went and retrieved M.M. from the vehicle. Posley testified that at this point he observed redness on M.M.'s neck. Dr. An, Mitchell's wife and the children's mother, appeared soon thereafter, took the two-year-old from Mitchell, and then handed over both of the children. Security Officer Posley placed handcuffs on Mitchell because, according to Scott, "we thought he was getting a little agitated there and for officer safety." Id. at 105.

By this time, Indianapolis Police Department Officer Phillip Malicoat had responded to a dispatch run to assist Methodist security officers. Upon arrival, Officer Malicoat observed a large group of people — five to nine Methodist staff members and security officers — and Mitchell, handcuffed, standing outside the hospital. Officer Malicoat spoke with a couple of witnesses and then asked Mitchell to explain what had happened. Mitchell told Officer Malicoat that he had taken some "over the counter supplements for his bodybuilding, and he lost his cool in disciplining his child." Id. at 143. Officer Malicoat continued his investigation, speaking with witnesses and then Mitchell's children, who were inside a Methodist office with their mother; he observed that M.M. had at least a couple of fresh scratches "that just barely broke the skin with very minimal bleeding" on the back of his neck. Id. at 146. Ultimately, Officer Malicoat placed Mitchell under arrest.

The State charged Mitchell with battery as a Class D felony and disorderly conduct as a Class B misdemeanor. At the bench trial, Mitchell introduced into evidence a deposition of Chrissa L. Collings, M.D., who had examined M.M. two days after the incident. In her deposition, Dr. Collings stated, "[M.M.] had a bruise on his left elbow and right upper arm and knees...." but later in the deposition said she believed the bruises on the left elbow were "older bruises." Defense Exhibit B p. 12, 14. When asked if she found anything in the course of her examination to indicate that there had been abrasions or breaking of the skin, Dr. Collings had replied, "I wrote, `No sign of bleeding,' in the chart. So I don't believe so." Id. at 13. Mitchell also elicited testimony at the trial from Dr. An, his wife, concerning her examination of M.M immediately after the incident, but the trial court refused to qualify Dr. An as an expert witness because of her relationship with Mitchell. Following the bench trial, the trial court found Mitchell guilty on both charges. Mitchell now appeals his convictions.

Discussion and Decision

Mitchell raises several issues on appeal. First, he argues that there is insufficient evidence to support the battery conviction because his "disciplinary" actions did not exceed the scope of his legal authority as a parent. Second, he argues that his disorderly conduct conviction cannot stand for two reasons: (1) there is insufficient evidence to support the disorderly conduct conviction because he was not asked to stop making unreasonable noise by a law enforcement officer, and (2) he was exercising his constitutional right to engage in expressive activity as guaranteed by article I, § 9 of the Indiana Constitution. Finally, Mitchell argues that the trial court erred in determining that Dr. An, Mitchell's wife and M.M.'s mother, could not be an expert witness.⁴ We consider each issue in turn.

I. Battery and Indiana Code § 35-41-3-1

Mitchell argues that the evidence is insufficient to support his battery conviction because his actions were within the scope of his legal authority to discipline his child pursuant to Indiana Code § 35-41-3-1. When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor determine the credibility of witnesses. Allen v. State, 787 N.E.2d 473, 482 (Ind.Ct.App.2003),trans. denied. Rather, we look solely to the evidence most favorable to the judgment together with all reasonable inferences to be drawn therefrom. Id. A conviction will be affirmed if the probative evidence and reasonable inferences to be drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

To convict Mitchell of battery with injury to a child, the State must prove beyond a reasonable doubt that he knowingly or intentionally touched a person less than fourteen years of age in a rude, insolent, or angry manner and that touching resulted in bodily injury. Ind.Code § 35-42-2-1(a)(2)(B). But Mitchell asserts the defense of parental discipline pursuant to Indiana Code § 35-41-3-1, which provides: "A person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so." This Court has found that the defense of legal authority includes reasonable parental discipline that would otherwise constitute battery. Smith v. State, 489 N.E.2d 140, 141 (Ind.Ct.App.1986), reh'g denied, trans. denied.; see also Johnson v. State, 804 N.E.2d 255 (Ind.Ct.App.2004)

.

The law is well settled that a parent has the right to administer proper and reasonable chastisement to his child without being guilty of an assault and battery; but he has no right to administer unreasonable or cruel and inhuman punishment. If the punishment is excessive, unreasonable, or cruel[,] it is unlawful. The mere fact that the punishment was administered by the appellant upon the person of his own child will not screen him from criminal liability.

Smith, 489 N.E.2d at 142 (quoting Hornbeck v. State, 16 Ind.App. 484, 45...