Franklin v. State
Decision Date | 19 December 2008 |
Docket Number | CR-06-1870. |
Citation | 23 So.3d 694 |
Parties | Vallory J. FRANKLIN v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
James F. Hampton, Montgomery; and Fletcher D. Green, Clanton, for appellant.
Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
The appellant, Vallory J. Franklin, was convicted of aggravated child abuse, a violation of § 26-15-3.1, Ala.Code 1975.1 She was sentenced to a term of 20 years' imprisonment. Franklin filed a motion for a new trial, which was denied by operation of law. This appeal followed.
The evidence indicated that the victim was Franklin's granddaughter. The evidence further indicated that on or about March 29, 2006, the then five-year-bid victim was staying with Franklin; that Franklin was boiling water in the kitchen; that Franklin accused the victim of cutting her sibling's hair; that the victim denied cutting her infant brother's hair; that Franklin then held the victim down and poured boiling water on her arm, which splashed on her leg and back. The evidence further indicated that Franklin wrapped the victim's arm in a cloth, but did not take the victim to seek medical assistance; that two days later the victim's aunt noticed the injuries and took the victim to be examined by medical personnel, where she was diagnosed with third-degree burns covering four percent of her body.2 The victim testified inconsistently as to whether Franklin appeared to have intended to pour the boiling water on her or whether it was an accident. Franklin testified that she was scolding the victim when her arm accidentally struck the pot containing the boiling water, causing the boiling water to accidentally spill on the victim, and that she immediately treated the burns with Neosporin brand antibiotics cream, clean water, and clean bandages.
Franklin first argues that her sentence is illegal because, she claims, she was charged with and convicted of "child abuse" as set forth in § 26-15-3, rather than "aggravated child abuse" as set forth in § 26-15-3.1.
At the time of the events in this case, the offense of child abuse was set forth in § 26-15-3, Ala.Code 1975, as follows:
"A responsible person, as defined in Section 26-15-2, who shall torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be punished by imprisonment in the penitentiary for not less than one year nor more than 10 years."3
Section 26-15-3.1, Ala.Code 1975, states the offense of aggravated child abuse, as follows:
(C. 10.)
To the extent that Franklin's argument is based on the premise that the indictment cited § 26-15-3 rather than § 26-15-3.1, it is well settled that "[m]iscitation of a code section does not void an indictment which otherwise states an offense; and, in the absence of a showing of actual prejudice to the defendant, reference to the erroneous code section will be treated as mere surplusage." Tinker v. State, 932 So.2d 168, 190 (Ala.Crim.App. 2005), quoting Ex parte Bush, 431 So.2d 563, 564 (Ala.1983).
Here, although the indictment did cite only to § 26-15-3, it clearly alleged that Franklin caused the victim serious physical injury, an element required under § 26-15-3.1 (aggravated child abuse) and not § 26-15-3 (child abuse). Further, we note that the page of the indictment that contains Franklin's address and physical description, the witnesses, and the signatures of the circuit judge setting bail, the circuit clerk, and the foreperson of the grand jury, listed the charge in count two as: "CHILD ABUSE (AGGRAVATED)." (C. 9.) When defense counsel objected to the trial court's instructing the jury on aggravated child abuse pursuant to § 26-15-3.1, he noted that that charge was listed "on the back" of the indictment. (R. 243.)
(Franklin's brief at pp. 13-14.) Franklin does not, however, allege that she would not have gone to trial had the indictment cited to § 26-15-3.1. We find no showing of actual prejudice. Thus, Franklin is not entitled to any relief on this claim.
To the extent that Franklin argues that the charge was referred to as "child abuse" throughout the trial, we are presented with a more troubling situation.
Throughout the trial, the offense in count two of the indictment was referred to by the trial court, the prosecution, and the defense, as "child abuse." Additionally, although during jury instructions the trial court instructed the jury on the additional element—serious physical injury— that elevated the offense to aggravated child abuse, the trial court referred to the offense as "child abuse." Further, it appears that the verdict form supplied to the jury referred to the charge only as "child abuse." Because we have concluded that the indictment, although misciting to § 26-15-3, the child-abuse code section, actually charged Franklin with aggravated child abuse under § 26-15-3.1, we must determine whether the discrepancy between the offense charged and the verdict form requires reversal.
In Tinker v. State, 932 So.2d 168 (Ala. Crim.App.2005), this Court stated:
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