VAIDIK, J.

We first address Ceaser’s challenge to the admission of evidence regarding her prior conviction for battering M.R. Ceaser argues that this evidence was inadmissible because it bore no relation to any of the admissible purposes listed in Indiana Evidence Rule 404(b), such as intent, knowledge, or absence of mistake. Even if the evidence was admissible under one of these exceptions, Ceaser argues, its probative value was substantially outweighed by its prejudicial effect. Both Ceaser and the State correctly note that we have yet to address this evidentiary issue in the context of parental discipline.

. . . .

In this case, in order to convict Ceaser for battery where the defense of parental privilege was asserted, the State was required to prove either: (1) the force Ceaser used was unreasonable or (2) Ceaser’s belief that such force was necessary to control M.R. and prevent misconduct was unreasonable. Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008). Mistake or accident is inherent in the requirement that the State prove a parent had an unreasonable belief that a particular level of force was necessary. Put differently, the State is required to prove that a parent was mistaken about what force was necessary. Where, as here, a parent asserting parental privilege has a prior conviction for battering the child at issue in a manner similar to the circumstance at issue, that evidence goes directly to the reasonableness of the force used and the reasonableness of that parent’s belief regarding the force used. Here, a jury could infer based on Ceaser’s prior conviction for battering M.R. that Ceaser knew what level of physical force exerted against M.R. was unreasonable. The evidence was admissible under the lack of accident or mistake exception to Rule 404(b).  [Footnote omitted.]

The evidence is also relevant to Ceaser’s intent. Contrary to Ceaser’s claim, the intent underlying parental discipline and battery are not the same. See Taylor, 701 N.E.2d at 396 (“a parent’s other disciplinary acts can be the most probative evidence of whether his or her disciplinary corporal punishment is imposed maliciously, with an intent to injure, or with a sincere desire to use appropriate corrective measures.”) (Emphases added). Discipline is defined as “punishment intended to correct or instruct.” Black’s Law Dictionary 270 (8th ed. 2004). A parent who disciplines a child in a physical manner intends to correct or alter their child’s behavior. That corrective intent is lacking in a battery. In order for evidence of previous crimes to be admissible to show intent to commit the instant crime, the defendant must place his or her intent at issue. Reeves v. State, 953 N.E.2d 665, 670 (Ind. Ct. App. 2011) (citing Moore v. State, 653 N.E.2d 1010, 1017 (Ind. Ct. App. 1995)). Ceaser has done so here. By arguing that she exercised her parental privilege in disciplining M.R., Ceaser necessarily represents that her intent was to correct M.R.’s behavior through corporal punishment, rather than to simply batter her daughter. The evidence of Ceaser’s 2006 conviction was also admissible under the intent exception to Rule 404(b).

Although we conclude that the evidence of Ceaser’s past violence toward M.R. was admissible under the intent and lack of accident or mistake exceptions, it may still have been inadmissible under the last part of the 404(b) test if its probative value was substantially outweighed by the danger of unfair prejudice pursuant to Evidence Rule 403.  . . . .

In both beatings, Ceaser whipped the same child, M.R., with objects—a belt in one instance and a cord in the other. In both instances, visible marks were left on M.R.’s body. The beatings were also close in proximity, occurring in 2006 and 2008, with the 2008 beating taking place less than a year after M.R. was returned to Ceaser’s care. The trial court limited the evidence of Ceaser’s prior conviction, permitting references only to the identity of the victim, the location of the victim’s injuries, and the use of an object to inflict those injuries. Other facts surrounding the 2006 beating, including statements made by Ceaser, were excluded.

We acknowledge that the potential for unfair prejudice was tangible here because the prior misconduct involved violence toward a child. However, we conclude that the trial court did not err in finding that the probative value was not outweighed by the threat of unfair prejudice given its direct relation to Ceaser’s claim of parental privilege, the similarity and proximity of incidents, and in light of the limitations imposed on the use of the evidence.

ROBB, C.J., and NAJAM, J., concur.

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FRIEDLANDER, J.

As noted above, as a term of his plea agreement, Crider agreed that he “knowingly, intelligently and voluntarily waive[d] his right to challenge the sentence on the basis that it is erroneous.” Appellant’s Appendix at 9. Clearly, whether the sentence in this cause was to be served consecutively or concurrently with the sentence already imposed in Tippecanoe County was a matter within the contemplation of the parties as they negotiated the terms of the plea agreement. Indeed, as originally drafted, the plea agreement provided that the habitual offender enhancements imposed as part of the two sentences would be served concurrently. This provision was crossed out and initialed by Crider and his counsel. Additionally, prior to being sentenced, Crider challenged the trial court’s authority to order the habitual offender enhancements of the two sentences to be served consecutively by submitting a memorandum to the trial court and presenting an argument addressing such issue at the sentencing hearing. Under these circumstances, it is apparent that Crider was well aware that the trial court might order the sentences served consecutively, and yet, Crider moved forward with the plea agreement in its current form, i.e., with no provision regarding the consecutive/concurrent aspect of the sentence in this cause with the sentence already imposed in Tippecanoe County.

Although Crider is not challenging the sentence specified under the terms of the plea agreement as outside the range set forth in the plea agreement, he is alleging the sentence was erroneous in another respect, on grounds at the time he entered the agreement of which he was well aware. Crider “knowingly, intelligently and voluntarily waive[d] his right to challenge the sentence on the basis that it is erroneous.” Appellant’s Appendix at 9.

Appeal dismissed.

MATHIAS, J., concurs.

RILEY, J., dissenting:

We acknowledge that our supreme court has upheld illegal sentences where a defendant has entered into a plea agreement calling for an illegal sentence and then benefitted from that sentence. See, e.g., Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004). As the Lee court explained, “[D]efendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise constitute double jeopardy. Striking a favorable bargain including a consecutive sentence the court might otherwise not have the ability to impose falls within this category.” id. (quoting Davis v. State, 771 N.E.2d 647, n.4 (Ind. 2002)). The distinguishing factor

between Lee and the instant case is that Crider did not agree to the trial court’s illegal sentence through a plea agreement. As the majority notes, the original draft of the plea agreement provided that the habitual offender enhancements would be served concurrently, yet that provision was crossed out and initialed by Crider and his counsel in the final version.  Thus, the plea agreement did not contain any reference to whether the sentence would be served concurrently or consecutively.

The majority argues that because the original draft of the plea contained this provision of concurrent habitual offender enhancements, and because Crider challenged the trial court’s authority to order his sentences to be served consecutively during his sentencing hearing, Crider had knowledge that the trial court might order the sentences served consecutively. However, knowledge is not equivalent to consent, and the evidence of Crider’s arguments illustrates that the opposite is true—Crider did not consent to the illegal sentence. Thus, because Crider did not consent to the illegal sentence in his plea agreement, he cannot be said to have benefitted from that sentence as a result of his agreement. Accordingly, I would remand to the trial court with instructions to modify Crider’s sentence.

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RILEY, J.

….

Myers raises three (3) issues on appeal; Coats raises one issue on cross-appeal. Evaluating the issues, we find one issue dispositive and restate as follows: Whether the trial court erred by concluding that genuine issues of material fact existed regarding Myers’ personal deprivation of Coats’ constitutional rights.

….

…The trial court concluded that Coats had a liberty interest in not being mistakenly labeled as a sex offender and that the process to challenge such erroneous listing was inadequate. The trial court also found that Coats had not produced sufficient evidence to show that Myers had deprived Coats of his liberty interest, but also found that there was a genuine issue of material fact as to whether Myers personally deprived Coats of a constitutional right.

….

…Coats’ § 1983 claim alleges that Myers violated his Fourteenth Amendment Due Process rights under the United States Constitution by failing to afford him a process to challenge his erroneous registration as a sex offender.

….

…Coats therefore had a liberty interest in not erroneously being labeled a sex offender. Accordingly, the trial court did not err in granting Coats’ motion for partial summary judgment and denying Myers’ cross-motion for summary judgment as to this issue. [Footnote omitted.]

….

Coats argues that no process was afforded to him to challenge his erroneous classification as a sex offender. Myers contends that even if a deprivation occurred adequate state law remedies existed and thus Coats was afforded sufficient process.

….

…We therefore conclude that providing an opportunity for a hearing to contest Coats’ erroneous sex offender registration would have sufficed to provide Coats with sufficient process. Accordingly, the trial court did not err in concluding that Coats was not afforded due process.

….

By evaluating Myers’ personal involvement with Coats’ plight and using the Brown test for supervisory liability, we find that Coats has not carried his burden to demonstrate that there is a genuine issue of material fact establishing that Myers personally deprived Coats of a liberty interest and failed to afford him sufficient process….

….

…Thus, Coats has not shown that Myers’ “promulgated, created, implemented or possessed responsibility for the continued operation of a policy” that “caused the complained of constitutional harm.” Brown, 662 F.3d at 1165. Accordingly, we find that summary judgment for Myers should have been granted on this issue. [Footnote omitted.]

….

Affirmed in part and reversed in part.

KIRSCH, J. and ROBB, C. J. concur

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Friedlander, J.

In this consolidated appeal, Mary Elizabeth Santelli, as the administrator of the Estate of James F. Santelli (the Estate), appeals from the trial court’s findings of fact, conclusions thereon, and order on the Estate’s motion to correct error and motion for a new trial, as well as from certain rulings made during the jury trial. Abu Rahmatullah (Rahmatullah), individually and d/b/a Super 8 Motel, also appeals from the trial court’s order. The following issues are presented for our review:

….

2. Does Indiana’s Comparative Fault Act (the Act) abrogate the common law “very duty” doctrine? [Footnote omitted.]

….

….The issue we must address is how non-party fault should be allocated when the non-party committed a criminal act causing the injury.

Restatement (Second) of Torts, §449 sets forth the very duty doctrine as follows:

If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.

….

The question here is whether the Act has abrogated the common-law very duty doctrine. The Estate tendered an instruction on the doctrine, which the trial court refused. In spite of the lack of instruction on the issue, the Estate, nonetheless, in closing argument presented the very duty doctrine to the jury. We have found that other common law doctrines have survived the enactment of the Act. See Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) (doctrine of superseding or intervening cause not abrogated by the Act, but was subsumed by the Act); Compton v. Pletch, 561 N.E.2d 803 (Ind. Ct. App. 1990) (sudden emergency doctrine not abrogated by the Act). We conclude that the very duty doctrine survives as well, and was not abrogated by the Act.

….

…The Estate argues that we should adopt Restatement (Third) of Torts § 14 (2000), and we do so for the reasons we discuss below.

Section 14, entitled “Tortfeasor Liable For Failure To Protect The Plaintiff From The Specific Risk Of An Intentional Tort”, provides as follows:

A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to the person.

….

…We agree with the trial court’s conclusion that a new trial was warranted on the issue of the allocation of fault because it was against the weight of the evidence. Our adoption of the Restatement (Third) of Torts § 14 will better enable the jury to make its determination in a manner that will carry out the goal of adequately compensating the injured party.

….

…In situations contemplated by Restatement (Third) of Torts § 14, we are not presented with defendants charged with separate, independent acts of negligence. Instead, we are presented here with one negligent defendant who breached a duty to prevent the foreseeable intentional conduct of another defendant. In that situation, the joint and several liability rule as a component of the very duty doctrine is appropriate and just.

….

Judgment reversed and remanded.

DARDEN, J., and VAIDIK, J., concur.

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Friedlander, J.

K.C. (Mother) gave birth to a child, S.C., on July 28, 2008. Controversy has existed ever since as to the identity of S.C.’s biological father. Almost from the outset, two men, B.H. and C.C., have sought to establish legal paternity of S.C. Their battle initially was litigated in two separate counties under two separate actions. B.H. initiated his action in Fayette Circuit Court. Somewhat later, and with Mother’s cooperation, C.C. initiated a separate action in Hancock Circuit Court. In this appeal, Mother challenges the Hancock Circuit Court’s grant of B.H.’s Verified Petition for Relief from Judgment for Fraud Upon the Court, challenging that ruling as the sole issue on appeal.

We affirm.

….

…The dispositive question is this: Did Mother procure the Hancock County order by committing a fraud upon the court within the meaning of T.R. 60(B) in failing to inform the Hancock County court about the Fayette County proceeding? As Mother aptly notes, in order to prevail on his motion, it was incumbent upon B.H. to establish that Mother had engaged in an unconscionable plan or scheme in order to improperly influence the court’s decision with respect to C.C.’s Verified Petition to Establish Paternity and that such prevented B.H. from fully and fairly presenting his case or defense. See Stonger v. Sorrell, 776 N.E.2d 353.

….

….As set out above, the execution of the paternity affidavit, combined with the timing of the filing of the Hancock County proceeding, appear to have been part of a plan or scheme to suppress the true identity of S.C.’s biological father, which resulted in the issuance of a paternity order by the Hancock Circuit Court that prevented B.H. from “having an actual day in court[.]” See id.

….

Judgment affirmed.

MATHIAS, J., concurs.

RILEY, J., dissents with separate opinion.

Riley, J., dissenting

….

The majority makes it clear that their holding is premised upon “the power of the trial court to vacate an order that it later concludes was issued under a fraudulent pretext.” Slip op. p. 10. The trial court here concluded that the paternity affidavit was void as a matter of     law because it “cannot be used as a fraudulent vehicle to terminate the parental rights of a biological father.” (Appellant’s App. p. 11). The trial court further concluded that Mother and her counsel’s actions in procuring the October 22, 2008 Order constituted fraud on the court. However, because the paternity affidavit at issue was not properly rescinded and because B.H. was not deprived from fully and fairly establishing his paternity of S.C. by virtue of either the paternity affidavit or the October 22, 2008 Order, I conclude that both of the trial court’s conclusions are clearly erroneous.

….

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