CHARLESTON, W.Va. (WSAZ) -- Kanawha County Prosecutor Mark Plants wants a domestic battery charge against him dismissed.
Plants' attorney filed a motion Monday in Kanawha County Magistrate Court.
The motion claims the facts do not support a criminal act. The motion states "Plants was acting as a parent to discipline his child, therefore he was acting within a constitutionally protected right to control his child."
Plants was arrested and charged last week after a lengthy investigation into a complaint filed by his ex-wife claiming he used excessive force when disciplining one of their children back in February.
According to the criminal complaint, Plants used a belt during the incident and police say it left marks. The investigator assigned to the case says the injury was dark purple to brown in color and was an approximately six to seven inch "U" shaped bruise on the back of the victim's left thigh.
The victim told police he was staying at his dad's (Plants') house when he shoved his step-brother because he was riding his scooter. That's when he says Plants sent him to his room and later came to the room and held him by his arm and hit him "more than ten times" with a leather belt, according to the complaint.
The complaint also states, Plants took his son and had him stand in front of his step-brother and asked, "Do you think I whipped him enough?"
According to the criminal complaint, Plants admitted during an interview with police that he hit his son with a leather belt. Initially, he told officers he hit him "two times," but later said "maybe three or four times" and it lasted "no more than 20 seconds."
"I am not guilty of any criminal conduct," Plants said during an interview with WSAZ.com last week.
The motion filed Monday states "There are of course only two witnesses to this spanking - Mr. Plants and his son. It is reasonable to infer from this situation that no evidence can or will be presented to establish the crime which has been charged. There is no evidence identified which suggests that Mr. Plants intended to contact his son with the edge of the belt-which is what undisputed caused the bruise. In fact, the U-shaped bruise suggests that the injury was unintentional. After all, there were allegedly multiple spanks, but only one bruise."
At time of publication, a court hearing for this motion has not been set.