State v. Fettig

• Decision Date: 15 April 2008
• Docket Number: No. 49A02-0709-CR-807.,49A02-0709-CR-807.
• Citation: 884 N.E.2d 341
• Parties: STATE of Indiana, Appellant-Plaintiff, v. Paula J. FETTIG, Appellee-Defendant.
• Court: Indiana Appellate Court

884 N.E.2d 341

STATE of Indiana, Appellant-Plaintiff, v. Paula J. FETTIG, Appellee-Defendant.

No. 49A02-0709-CR-807.

Court of Appeals of Indiana.

April 15, 2008.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

John F. Kautzman, Ruckleshaus, Kautzman, Blackwell, Bemis & Hasbrook, Indianapolis, IN, Attorney for Appellee.

Thomas E. Wheeler, II, Locke Reynolds LLP, Indianapolis, IN, Attorney for Amicus Curiae The Indiana School Boards Association, and The Indiana Association of Public School Superintendents.

Eric M. Hylton, Dann Pecar Newman & Kleiman, P.C., Indianapolis, IN, Attorney for Amicus Curiae The Indiana State Teachers Association.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellee-Plaintiff, the State, appeals the trial court's dismissal of an Information filed against Appellee-Defendant, Paula J. Fettig (Fettig), charging her with battery as a Class A misdemeanor, Ind.Code § 35-42-2-1.¹

We affirm.

ISSUE

The State presents one issue for our review: Whether the trial court abused its discretion when it dismissed the battery charge against Fettig.

FACTS AND PROCEDURAL HISTORY

On January 24, 2007, Fettig was teaching her gym class at Beech Grove High School. During the class, a student playing kickball, T.C., hurt her ankle and T.C.'s friend, S.D., checked on her. Fettig approached and after a series of events made contact with her hand to S.D.'s face. On January 29, 2007, S.D. reported the incident to the Beech Grove Police Department.

The probable cause affidavit explains that a detective interviewed S.D. and three other students present that day in Fettig's class, K.B., L.C., and T.C. When the detective interviewed S.D., she stated:

That she was in gym class when one of her classmates hurt her ankle during a play. [S.D.] remembered that while she was checking on the classmate's welfare, her gym teacher [Fettig] slapped her on the face telling her to "go play" and that the slap stung. [S.D.] went on to explain that there were [four] to [five] students in the immediate area who may have seen or heard the slap to the face.

(Appellant's App. p. 8).

K.B. explained to the detective that several students surrounded T.C. Fettig yelled at T.C. to get up, and then walked toward her. S.D. told Fettig that T.C. was really hurt. Fettig made a joke about the shoes that T.C. was wearing, and then another student, L.C., said "shut up Fettig." (Appellant's App. p. 8). K.B. then heard a slap from where Fettig and S.D. were standing, but did not see the contact between Fettig and S.D.

L.C. told the detective that Fettig tried to make T.C. laugh. L.C. told Fettig to shut up, and then heard a slap. T.C. told the detective that she saw Fettig slap S.D. with an open hand on the left side of her face. In addition, the detective interviewed a student assistant helping in Fettig's class that day, and Fettig. The student assistant remembered Fettig slapping S.D. on the left side of her face with an open hand. However, Fettig told the detective that she had cupped the chin of S.D. with her hand and ordered her to go play.

On February 28, 2007, the State filed an Information charging Fettig with battery, as a Class A misdemeanor, I.C. § 35-42-2-1. The Information alleged that Fettig "did knowingly in a rude, insolent or angry manner touch [S.D.], another person, and further that said touching resulted in bodily injury to the other person, specifically: pain." (Appellant's App. p. 7). On June 28, 2007, Fettig filed a motion to dismiss the battery charge. Attached to the motion to dismiss was an affidavit from Fettig stating, in pertinent part:

3. On or about January 24, 2007, I was teaching a physical education class and watching the students that were engaged in a game of kick ball on the gymnasium floor. During the game, one of the students, [T.C.], sprained her ankle. I helped [T.C.] to the side of the gymnasium floor as other students began to tease her. Her friend, S.D., sat down beside her and was yelling back at the other students in the class for their mocking of [T.C.]. Profanity was being used by S.D. in yelling at the other students and the situation was getting out of hand.

4. I approached S.D. and said her name three [] times in an effort to gain her attention and regain control of the class. S.D. ignored me[.] I reached toward her, turned her chin toward me, and told her to get up and "go play."

(Appellant's App. pp. 26-27). On August 15, 2007, the trial court granted Fettig's motion to dismiss.

The State now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

The State argues that the trial court abused its discretion when it granted Fettig's motion to dismiss. Specifically, the State argues that although teachers are permitted to use reasonable corporal punishment when disciplining children, whether Fettig's actions were a form of reasonable corporal punishment is a question of fact that must be determined by a trier of fact.

On appeal from the grant of a motion to dismiss an information, we review the trial court's ruling for an abuse of discretion. Zitlaw v. State, 880 N.E.2d 724, 728-29 (Ind.Ct.App.2008). In reviewing a trial court's decision for an abuse of discretion, we reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Id.

Indiana Code section 35-34-1-4(5) provides that an information may be dismissed when the facts stated do not constitute an offense. A trial court considering a motion to dismiss need not rely entirely on the text of the charging information but can hear and consider evidence in determining whether or not a defendant can be charged with the crime alleged. Zitlaw, 880 N.E.2d at 728-29.

The State relies primarily on State v. Isaacs, 794 N.E.2d 1120, 1123 (Ind.Ct.App. 2003), to develop its contention that the existence of a statutory defense to charges does not permit the dismissal of an information, but rather is an issue that must be decided at trial. In Isaacs, we were presented with a situation where the trial court had dismissed an information charging Isaacs in part with operating a vehicle with a controlled substance in his body. Id. at 1122. Before the trial court, Isaacs had moved to dismiss arguing that he had a valid prescription for the controlled substance. Id. We acknowledged that the existence of a valid prescription for a controlled substance is a statutory defense to operating with a controlled substance in one's body; however, we explained that, "whether one has a statutory defense goes beyond the issues that may be decided by a motion to dismiss and instead is a matter appropriately decided at trial." Id.

Fettig cites State v. D.M.Z., 674 N.E.2d 585 (Ind.Ct.App.1996), in an attempt to persuade us that the trial court did not abuse its discretion in dismissing the Information. In D.M.Z., a child-care worker employed at a shelter allegedly had sexual contact with a minor staying at the shelter and was charged with child seduction, a Class D felony, I.C. § 35-42-4-7. Id. at 587. At the time when D.M.Z. allegedly had the sexual contact with the minor, the child seduction statute stated that only guardians, adoptive parents, adoptive grandparents, custodians, or stepparents of a child can commit child seduction. I.C. § 35-42-4-7 (1996).² The statute defined custodians as "any person responsible for a child's welfare who is employed by a public or private residential school or foster care facility." Id. D.M.Z. moved to dismiss the information arguing that she was not the minor's custodian, or in any other qualifying relationship with the child, and, therefore, as a matter of law could not be charged with the crime of child seduction for her alleged acts. D.M.Z., 674 N.E.2d at 587. We determined that the phrase "responsible for a child's welfare" was ambiguous, and applied the rules of statutory construction to conclude that the phrase required a person to "occupy a position of trust and have the authority and responsibility to make decisions concerning the child's welfare, to act without guidance or superior authority, as a parent would or in loco parentis." Id. at 590. We considered the State's evidence that had been submitted to the trial court and determined that D.M.Z. did not occupy such a position with the minor. Id. at 589-90. Accordingly, we concluded that the trial court properly dismissed the charges against D.M.Z. Id. at 590.

The Amicus Curiae direct our attention to Melo v. State, 744 N.E.2d 1035 (Ind.Ct. App.2001). In Melo, the defendant was charged with two counts of interference with the trial court's custody order. Id. The Information alleged that the defendant had removed children subject to the custody order to a place outside of Indiana between the dates of June 9, 1999, and August 12, 1999. Id. at 1036. We explained that the crime of interference with custody, I.C. § 35-42-3-4, requires the act of removing the children from Indiana. Relying on the ordinary meaning of the word remove, we held that the defendant could not have committed the offense alleged to have occurred between July 9, 1999, and August 12, 1999. We relied upon facts that the children had stayed with the defendant in Florida since July 1998, pursuant to a court order, although it was not stated in our decision how those facts were presented to our court or the trial court. Id. at 1038. Accordingly, we concluded that the trial court had erred by denying Melo's motion to dismiss. Id.

The distinguishing marks between Isaacs, D.M.Z., and Melo are somewhat translucent. However, the procedures laid out by our legislature for dismissing an information or indictment in Indiana Code section 35-34-1-8 are helpful. Relevant to our determination, the statute provides:

If the motion [to dismiss] is expressly or impliedly based upon the existence or occurrence of facts, the motion shall be accompanied by...