Gordon Fife Franklin v The State of Oklahoma

F-2005-228

Filed: Apr. 5, 2007

Not for publication

Prevailing Party: Gordon Fife Franklin

Summary

Gordon Fife Franklin appealed his conviction for **Kidnapping, Assault and Battery with a Dangerous Weapon**, and **Cruelty to Animals**. His conviction and sentence were **modified from 250 years to 55 years of imprisonment for each count** to be served at the same time. **Lumpkin dissented** regarding the reversal of the cruelty charge and the sentence modification.

Decision

Franklin's Judgment and Sentence for Cruelty to Animals is REVERSED and remanded to the district court with instructions to DISMISS. His convictions for Assault and Battery with a Dangerous Weapon and Kidnapping are AFFIRMED as MODIFIED. The district court is instructed to modify the Judgments and Sentences on these convictions from 250 years imprisonment on each to 55 years imprisonment on each to be served concurrently. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Whether the trial court erred in admitting the preliminary hearing testimony of the alleged victim, in admitting photographs depicting Franklin being arrested, and in admitting expert testimony regarding domestic violence;
• Whether the trial evidence was sufficient to sustain Franklin's convictions;
• Whether the trial court erred in failing to instruct the jury that a leather belt is not per se a dangerous weapon;
• Whether the trial court erred in failing to instruct the jury on the definition of "great bodily injury";
• Whether the trial court erred in admitting Franklin's Judgment and Sentence reports without redacting the sentences he received and whether defense counsel was ineffective for failing to request the documents be redacted;
• Whether Franklin's sentence is excessive;
• Whether the aggregate impact of the errors committed during trial necessitates relief.

Findings

• the court erred in admitting the preliminary hearing testimony of the alleged victim
• the trial evidence was sufficient to sustain Franklin's convictions for Assault and Battery with a Dangerous Weapon and Kidnapping
• the trial court did not err in failing to instruct the jury that a leather belt is not per se a dangerous weapon
• the trial court did not err in failing to instruct the jury on the definition of "great bodily injury"
• the court erred in admitting Franklin's Judgment and Sentence reports without redacting the sentences
• Franklin's sentence is excessive and must be modified
• the aggregate impact of errors committed during trial does not necessitate additional relief

F-2005-228

Apr. 5, 2007

Gordon Fife Franklin

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

Gordon Fife Franklin, Appellant, was tried by jury in the District Court of Oklahoma County, Case No. CF-2004-3103, and was found guilty of Kidnapping in violation of 21 O.S.2001, § 741, Assault and Battery with a Dangerous Weapon in violation of 21 O.S.2001, § 645, and Cruelty to Animals in violation of 21 O.S.Supp.2003, § 1685, each after former conviction of two or more felonies. The jury recommended 250 years imprisonment on each count. The Honorable Virgil C. Black, who presided at trial, sentenced him accordingly and ordered the sentences to be served concurrently. From this Judgment and Sentence, Franklin appeals. This case raises the following issues:

1. Whether the trial court erred in admitting the preliminary hearing testimony of the alleged victim, in admitting photographs depicting Franklin being arrested, and in admitting expert testimony regarding domestic violence;
2. Whether the trial evidence was sufficient to sustain Franklin’s convictions;
3. Whether the trial court erred in failing to instruct the jury that a leather belt is not per se a dangerous weapon;
4. Whether the trial court erred in failing to instruct the jury on the definition of great bodily injury;
5. Whether the trial court erred in admitting Franklin’s Judgment and Sentence reports without redacting the sentences he received and whether defense counsel was ineffective for failing to request the documents be redacted;
6. Whether Franklin’s sentence is excessive; and
7. Whether the aggregate impact of the errors committed during trial necessitates relief.

We find that Franklin’s conviction for Cruelty to Animals must be reversed with instructions to dismiss and that the sentences on his remaining convictions must be modified for the reasons discussed below.

1 The trial court erred in admitting the actual transcript of the victim’s preliminary hearing testimony into evidence because she acknowledged her inconsistent statements made under oath and penalty of perjury. Neal v. State, 1992 OK CR 58, 1 6, 837 P.2d 919, 920 citing Kelsey v. State, 1977 OK CR 300, 9 9, 569 P.2d 1028; see also State v. McBlair, 1983 OK CR 144, I 4, 670 P.2d 606, 608; Graves v. State, 1977 OK CR 158, 9 20, 563 P.2d 646, 651; Sims v. State, 1987 OK CR 2, I 6, 731 P.2d 1368, 1370. The error, however, is harmless in this case because the trial court also admitted an affidavit from the victim and a tape recording of her recanting her preliminary hearing testimony.

2 With the admission of this evidence, the danger the jury would place undue emphasis on the victim’s preliminary hearing testimony was eliminated. We further find error, if any, in the admission of the two photographs of Franklin being arrested was harmless. See Gilbert v. State, 1997 OK CR 71, 19 80-81, 951 P.2d 98, 119. With respect to the expert testimony in this case, we find that the trial court exercised proper discretion in considering the detective’s qualifications and holding that his knowledge, training and experience was sufficient to qualify him as an expert witness in the field of domestic violence. Harris V. State, 2004 OK CR 1, 9 37, 84 P.3d 731, 747; Slaughter v. State, 1997 OK CR 78, I 19, 950 P.2d 839, 849; 12 O.S.2001, § 2702.

2 We find that the trial evidence was sufficient to justify Franklin’s convictions for Assault and Battery with a Dangerous Weapon and Kidnapping. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Jones v. State, 2006 OK CR 5, I 32, 128 P.3d 521, 537. We do not find, however, that the trial evidence was sufficient to justify Franklin’s conviction for Cruelty to Animals. The evidence is sufficient to support a finding that Franklin hit the pit bull dog and caused the scratches on its head. That alone is not enough. The record must demonstrate that the defendant cruelly injured the animal. The dog’s injury was minimal and insufficient to support a finding of suffering or the infliction of a high degree of pain. The dog was not incapacitated in any way and was active when the police arrived.

3 There was no evidence the three minor scratches required medical attention or that the dog was even momentarily disabled. The victim testified that Franklin hit the dog and pushed it off of the sofa when it threatened him. His conviction for Cruelty to Animals must be reversed with instructions to dismiss.

3 Franklin did not object to the trial court’s instruction defining dangerous weapon; review is for plain error only. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. The court’s instruction was an accurate statement of the law. Without proof of error, Franklin cannot show plain error. This claim is denied.

4 The trial court did not abuse its discretion in refusing, out of concern for confusion of the issues, to include the definition of great bodily injury in the jury instructions. Patton v. State, 1998 OK CR 66, 49, 973 P.2d 270, 288. The instructions, as a whole, accurately stated the applicable law.

5 and 6 We find that Franklin’s 250 year sentences for kidnapping and assault and battery with a dangerous weapon are excessive and were driven by improper considerations. The Judgments and Sentences admitted to prove his prior convictions for purposes of enhancing his sentences for his current crimes showed that almost all of Franklin’s counts were running concurrently with each other and concurrent to other cases. They also showed he committed the current crimes before the expiration of the sentences in his 4 previous cases. Such information is not to be considered by the jury. See Cooper v. State, 1991 OK CR 26, I 16, 806 P.2d 1136, 1139. Not surprisingly, the jury asked three questions during deliberations about the amount of time Franklin would serve. It appears Franklin’s jury struggled to fashion an appropriate sentence in this case in light of the erroneous information revealed on his prior judgments and sentences, the facts of the case and Franklin’s outbursts during court proceedings. The record supports a finding that the jury’s recommendation of 250 years imprisonment on all counts was influenced by the unredacted sentencing information on Franklin’s judgments and sentences. It is also likely that the jury had difficulty ignoring Franklin’s behavior during trial. Under the circumstances of this case, it is understandable and reasonable that the jury wanted Franklin to serve a considerable amount of time for his offenses, but the sentences imposed here are excessive and shock the conscience of this Court. See Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149. Under these circumstances, we find it appropriate to modify Franklin’s excessive sentences to 55 years imprisonment for both kidnapping and assault and battery with a dangerous weapon to be served concurrently.

7 Franklin’s conviction for cruelty to animals must be reversed and dismissed for insufficient evidence. His sentences on the remaining two counts must be modified because they are excessive. Any other errors committed in this case, even when considered collectively, do not require additional relief.

DECISION

Franklin’s Judgment and Sentence for Cruelty to Animals is REVERSED and remanded to the district court with instructions to DISMISS. His convictions for Assault and Battery with a Dangerous Weapon and Kidnapping are AFFIRMED as MODIFIED. The district court is instructed to modify the Judgments and Sentences on these convictions from 250 years imprisonment on each to 55 years imprisonment on each to be served concurrently. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

2

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Footnotes:

1. Okla. Stat. tit. 21 § 741
2. Okla. Stat. tit. 21 § 645
3. Okla. Stat. tit. 21 § 1685
4. Neal v. State, 1992 OK CR 58, 1 6, 837 P.2d 919, 920
5. Kelsey v. State, 1977 OK CR 300, 9 9, 569 P.2d 1028
6. State v. McBlair, 1983 OK CR 144, I 4, 670 P.2d 606, 608
7. Graves v. State, 1977 OK CR 158, 9 20, 563 P.2d 646, 651
8. Sims v. State, 1987 OK CR 2, I 6, 731 P.2d 1368, 1370
9. Gilbert v. State, 1997 OK CR 71, 19 80-81, 951 P.2d 98, 119
10. Harris v. State, 2004 OK CR 1, 9 37, 84 P.3d 731, 747
11. Slaughter v. State, 1997 OK CR 78, 1 19, 950 P.2d 839, 849
12. 12 O.S.2001, § 2702
13. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
14. Jones v. State, 2006 OK CR 5, I 32, 128 P.3d 521, 537
15. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
16. Patton v. State, 1998 OK CR 66, " 49, 973 P.2d 270, 288
17. Cooper v. State, 1991 OK CR 26, I 16, 806 P.2d 1136, 1139
18. Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149
19. Bland v. State, 2000 OK CR 11, I 29, 4 P.3d 702, 714
20. Scott v. State, 1991 OK CR 31, IT 4, 808 P.2d 73, 76
21. 21 O.S. Supp.2003, § 1685

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 741 - Kidnapping
• Okla. Stat. tit. 21 § 645 - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 1685 - Cruelty to Animals
• Okla. Stat. tit. 12 § 2702 - Expert Testimony
• Okla. Stat. tit. 22 § 701.8 - Sentencing Enhancement

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Neal v. State, 1992 OK CR 58, 1 6, 837 P.2d 919, 920
• Kelsey v. State, 1977 OK CR 300, 9 9, 569 P.2d 1028
• State v. McBlair, 1983 OK CR 144, I 4, 670 P.2d 606, 608
• Graves v. State, 1977 OK CR 158, 9 20, 563 P.2d 646, 651
• Sims v. State, 1987 OK CR 2, I 6, 731 P.2d 1368, 1370
• Gilbert v. State, 1997 OK CR 71, 19 80-81, 951 P.2d 98, 119
• Harris v. State, 2004 OK CR 1, 9 37, 84 P.3d 731, 747
• Slaughter v. State, 1997 OK CR 78, 1 19, 950 P.2d 839, 849
• Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
• Jones v. State, 2006 OK CR 5, I 32, 128 P.3d 521, 537
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Patton v. State, 1998 OK CR 66, " 49, 973 P.2d 270, 288
• Cooper v. State, 1991 OK CR 26, I 16, 806 P.2d 1136, 1139
• Rea v. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149
• Bland v. State, 2000 OK CR 11, I 29, 4 P.3d 702, 714
• Scott v. State, 1991 OK CR 31, IT 4, 808 P.2d 73, 76