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Franklin v. State

Court of Appeals of Georgia, Fifth Division

July 1, 2019

FRANKLIN
v.
THE STATE

          McFADDEN, C. J., McMILLIAN, P. J. and GOSS, J.

          McFadden, Chief Judge.

         After a jury trial, Diana Franklin was convicted of nineteen counts of cruelty to children in the first degree, eight counts of false imprisonment, and one count of aggravated assault for acts against her teenaged daughter, A. F. On appeal, she argues that the trial court erred in failing to merge several of the convictions for sentencing; we disagree, except as to her eight false-imprisonment convictions, which the state has conceded should merge into her child-cruelty convictions. She argues that the trial court erred in failing, sua sponte, to order a mistrial after making an improper comment on the evidence, but the record does not show that she objected to the comment at trial and Franklin has not shown that the comment was plain error. And she argues that she received ineffective assistance of counsel, asserting that her trial counsel was deficient in numerous ways, but she has not shown that she was prejudiced by any deficient performance of her trial counsel. So we affirm the judgment, vacate the sentence, and remand the case for resentencing.

         1. Facts and procedural history.

         Viewed in the light most favorable to the jury verdicts, the trial evidence showed that Franklin and her husband adopted A. F. in 2007, when the girl was 10 years old. Five years later, on May 25, 2012, the Department of Family and Children Services (DFCS) removed A. F. from Franklin's home after receiving an anonymous tip from one of Franklin's former neighbors that a child was being held in a padlocked, cinder-block building on the property. When DFCS found A. F., the girl was thin and frail. The state ultimately charged Franklin with numerous offenses based on the following conduct.

         (a) Confinement in a cinder-block building.

         The trial evidence showed that on several occasions in 2011 and 2012, Franklin confined A. F. for periods of up to seven days in a detached cinder-block building on Franklin's property. The instances of confinement occurred in both hot and cold weather, and A. F. often had inadequate clothing for the weather. Sometimes Franklin would provide A. F. with some food during the confinement, such as bread and water, oatmeal, grits, or cold canned goods. But often Franklin provided no food to A. F.

         Franklin used a padlock to lock A. F. into the building. The building had no heat or air conditioning and could reach inside temperatures of over 90 degrees Fahrenheit; it also had no bathroom or running water, forcing A. F. to use a chamber pot that at times she would be unable to empty for days. The building had a partial dirt floor, one small window, and was used to store items such as tools, propane containers, paint, and other chemicals. By the spring of 2012, Franklin had placed a cot in the building and was requiring A. F. to live there, padlocked into the building, most of the time.

         On the afternoon of May 25, 2012, the day DFCS employees removed A. F. from Franklin's house, Franklin had just released the girl from the cinder-block building, in which A. F. had been padlocked for a day and a half with no food in temperatures exceeding 90 degrees.

         A. F. testified that when she was confined (either in this building or in the other structures described below), she would cry all of the time. She stated: "I wanted to kill myself or beg God to kill me."

         (b) Confinement in a chicken coop.

         The trial evidence showed that on several occasions in 2010, 2011, and 2012, Franklin confined A. F. for periods of up to seven days in the storage area of an uninsulated chicken coop on Franklin's property. The instances of confinement occurred in both hot and cold weather, and A. F. often had inadequate clothing for the weather. Sometimes Franklin would confine A. F. to the chicken coop with no clothing, food, or water. Chickens lived in the coop in an area separated from A. F. by a wire partition. On at least one occasion, Franklin forced A. F. to walk naked to the chicken coop, in view of a public road, before confining her there. And at one point, when she was confined in the coop, A. F. tried eating dog food that was stored there.

         (c) Confinement in an outhouse.

         The trial evidence showed that on several occasions in 2011 and 2012, Franklin confined A. F. for up to seven days in an uninsulated outhouse in a remote area on her property, about a half-mile away from the house. The instances of confinement occurred in both hot and cold weather, and A. F. often had inadequate clothing for the weather or no clothing at all. Often Franklin would not provide any food to A. F. during the confinements.

         The outhouse was made of wood with a tin roof and it had a toilet seat inside on a ledge. It had a board on the door that prevented A. F. from opening the door. It had cracks in the walls that A. F. would stuff with toilet paper during cold weather. It had no electricity or lighting, leaving A. F. in total darkness at night, which frightened her and caused her to cry and scream for help.

         (d) Confinement in a closet.

         The trial evidence showed that on several occasions in 2011 and 2012, Franklin confined A. F. for up to seven days in an unlit closet in Franklin's bedroom. Franklin blocked the door to the closet but would allow A. F. out of the closet once a day to use the bathroom. Some days, but not every day, Franklin would provide A. F. with a piece of bread and half a glass of water while she was in the closet.

         (e) Other acts against A. F.

         The trial evidence showed that on one occasion Franklin tied A. F. to a tree for approximately 12 hours. Once it got dark, A. F. became scared and depressed, and she began crying and screaming for help.

         The trial evidence showed that Franklin made A. F. wear shock collars, typically used for a dog, and she would shock her, causing the girl physical and emotional pain.

         The trial evidence showed that on one occasion, after A. F. threatened to kill herself, Franklin put a handgun to A. F.'s head and said, "I'll do it for you." A. F. was scared and believed that Franklin intended to kill her. Although she cried and begged Franklin not to shoot her and several times tried to push the gun away, Franklin continued to hold the gun against A. F.'s head. She put the gun away only after being admonished by one of her sons, who had entered the room.

         Finally, the trial evidence showed that sometimes Franklin would force A. F. to lay naked on a bed and would then beat her with the strap and buckle of a belt. The beatings were painful to A. F. and left marks on her back.

         2. Merger.

         Franklin argues that the trial court erred in failing to merge for sentencing purposes most of the crimes of which she was convicted. This claim of error concerns her convictions for various crimes arising from her confinement of A. F. in the cinder-block building, the chicken coop, the outhouse, and the closet. Our analysis of this argument requires a more detailed discussion of these specific crimes.

         As to the cinder-block building, Franklin was convicted of crimes committed in three separate periods: between May 21, 2012, and May 25, 2012; between January 1, 2012, and April 30, 2012; and between June 1, 2009, and December 31, 2011. She was convicted of three separate offenses occurring in each of these periods: first-degree cruelty to children in violation of OCGA § 16-5-70 (a) (wilfully depriving a child of necessary sustenance), for giving A. F. little to no food during her confinement; first-degree cruelty to children in violation of OCGA § 16-5-70 (b) (maliciously causing a child cruel or excessive physical or mental pain), for confining her during hot or cold weather with little or no clothing; and false imprisonment in violation of OCGA § 16-5-41 (a).

         As to the chicken coop and outhouse, Franklin was convicted of crimes committed in two separate periods: between January 1, 2012, and May 21, 2012, and between June 1, 2009, and December 31, 2011. Again, as to each of those locations, she was convicted of three separate offenses occurring in each of these periods: first-degree cruelty to children in violation of OCGA § 16-5-70 (a) (wilfully depriving a child of necessary sustenance), for giving A. F. little to no food during her confinement; first-degree cruelty to children in violation of OCGA § 16-5-70 (b) (maliciously causing a child cruel or excessive physical or mental pain), for confining her during hot or cold weather with little or no clothing; and false imprisonment in violation of OCGA § 16-5-41 (a).

         As to the closet, Franklin was convicted of two separate offenses committed between June 1, 2009, and December 31, 2011: first-degree cruelty to children in violation of OCGA § 16-5-70 (a) (wilfully depriving a child of necessary sustenance), for giving A. F. little to no food during her confinement; and first-degree cruelty to children in violation of OCGA § 16-5-70 (b) (maliciously causing a child cruel or excessive physical or mental pain). She also was convicted of false imprisonment in violation of OCGA § 16-5-41 (a) for acts committed between June 8, 2009 and December 31, 2011.

         Franklin argues that these convictions should merge such that she receive only one sentence for crimes committed in each of the four locations. At oral argument, the state agreed with part of Franklin's claim, conceding that her false-imprisonment convictions merge with her child-cruelty convictions. So we do not address her merger argument as it relates to the false-imprisonment convictions but vacate the sentence and ...


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