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Fernanders v. State

Court of Appeals of Indiana

September 27, 2018

Joseph B. Fernanders, III, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Allen Superior Court The Honorable John F. Surbeck, Jr., Judge Trial Court Cause No. 02D06-1706-F6-749

          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

          BAILEY, JUDGE.

         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 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 ...


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