Franklin v. State, CR-06-1870.

Citation23 So.3d 694
Decision Date19 December 2008
Docket NumberCR-06-1870.
PartiesVallory J. FRANKLIN v. STATE of Alabama.
CourtAlabama 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.

WISE, Judge.

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.

I.

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:

"(a) A responsible person, as defined in Section 26-15-2, commits the crime of aggravated child abuse if he or she does any of the following:

". . .

"(3) He or she violates the provisions of Section 26-15-3 which causes serious physical injury, as defined in Section 13A-1-2, to the child.

"(b) The crime of aggravated child abuse is a Class B felony."

The indictment charged that Franklin

"did, while a responsible person, to-wit: the grandmother of [the victim], having permanent or temporary care or custody or responsibility for the supervision of said [victim], did cause serious physical injury to a child, [. . .], by failing to seek medical care after [the victim] was seriously burned, in violation of Section 26-15-3, Code of Alabama 1975."

(C. 10.)

A.

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.)

Further, Franklin has not shown that she suffered actual prejudice. Her arguments before the trial court—following jury instructions, at sentencing, and in her motion for a new trial—were premised on general principles regarding notice, or her challenge to the length of sentence, which was proper. Much of her argument on appeal is also directed at those grounds. She also alleged on appeal that

"Franklin was put on notice, by the Grand Jury and the District Attorney's office, that she was charged under § 26-15-3 which, at the time of this offense (March 30, 2006) indicated a punishment of `not less than one year nor more than ten years.' Code of Alabama, 1975, § 26-15-3, [prior to its amendment of July 1, 2006 (see case note `History' under § 26-15-3)]. This is significant because Franklin, being apprised of the charge, which is substantially equal to a Class `C' felony (the punishment being set out as `not less than one year nor more than ten years') decided to go to trial on that basis. An awareness of the charged crime would obviously affect the decision of whether to go to trial versus a decision to plead and, as such, affected Franklin and her trial counsel in making their decision to go to trial. It is patently unfair to charge on one crime and convict on a greater crime."

(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.

B.

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:

"In Pittman v. State, 621 So.2d 351, 352 (Ala.Crim.App.1992), Pittman was indicted for attempted murder, and `he was erroneously convicted of "intent to commit murder."' The trial court had instructed the jury on `intent to commit murder' and `attempted murder' and `[t]he verdict form submitted to the jury contained a charge of "intent to commit murder" rather than "attempted murder."' Pittman, 621 So.2d at 352. In reversing Pittman's conviction, this Court stated:

"`Although "intent" to commit a crime is a necessary element within any "attempt" statute, it is not, in and of itself, a crime to possess intent; hence, the court was without jurisdiction to pronounce judgment on the verdict finding the defendant guilty of "intent to commit murder." Accordingly the trial court's judgment on the "intent to commit murder" conviction is null and void and will not support an appeal.'

"Pittman, 621 So.2d at 352-53.

"In Edwards v. State, 570 So.2d 252 (Ala.Crim.App.1990), Edwards was indicted for unlawful sale of a controlled substance (marijuana), and the trial court instructed the jury on the offense of illegal sale of marijuana, but the verdict form submitted to the jury listed the offense as `possession of marijuana' and the jury returned a verdict finding Edwards guilty of `possession of marijuana.' Edwards, 570 So.2d at 253. In reversing Edwards's conviction, this Court stated:

"`"The verdict in a criminal case must be responsive to the offense charged in the indictment, but surplusage can be disregarded if the intent of the jury is clear. A jury verdict will be held to be sufficient if its meaning can be reasonably ascertained from the words used. Where the error in the charge is in the form of the verdict and there is not prejudice to the rights of the accused the error is harmless."

"`Peterson v. State, 508 S.W.2d 844, 849 (Tex.Cr.App.1974). See also Rodgers v. State, 649 S.W.2d 371, 373-376 (Tex.App. 3 Dist.1983).

"`In the present case, the jury's verdict was not responsive to the offense charged in the indictment and the jury's intent is not clear; therefore, the language stating that the appellant was found guilty of the "possession of marijuana" cannot be held to be surplusage.

"`In State v. Whiting, 41 Ohio App.3d 107, 534 N.E.2d 904 (1987), the defendant argued on appeal that the jury verdict was insufficient to sustain his sentence for a second or third degree felony. The defendant in Whiting, supra, was indicted for aggravated trafficking, wherein the drug is a Schedule I or II controlled substance, but the jury verdict form stated that the defendant was guilty of simple trafficking in drugs, wherein the drug is a Schedule III, IV, or V controlled substance. The court found that "[t]he discrepancy between the indictment and the verdict form is sufficient to...

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