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State v. Franklin

Court of Criminal Appeals of Tennessee, Nashville

February 27, 2018


          Assigned on Briefs November 14, 2017

         Appeal from the Circuit Court for Marshall County No. 16-CR-17 Franklin L. Russell, Judge.

         A jury convicted the Defendant, Dwayne Scott Franklin, of three counts of rape of a child, a Class A felony. The trial court imposed sentences of twenty-five, thirty, and thirty-five years in prison for the crimes, and the sentences were ordered to run partially consecutively for an aggregate sentence of sixty years. The Defendant appeals, challenging the sufficiency of the evidence, the State's alleged failure to preserve evidence, and sentencing. After a thorough review of the record, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed.

          Donna L. Hargrove, District Public Defender, and Michael J. Collins (at trial and on appeal) and William J. Harold (at trial), Assistant District Public Defenders, for the appellant, Dwayne Scott Franklin.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Robert J. Carter, District Attorney General; and Weakley E. Barnard and William B. Bottoms, Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.




         The Defendant raped the victim multiple times when she was seven years old, while she was at his home playing with his two daughters. The abuse came to light approximately two years later. The victim described the crimes at trial, and the victim's mother, the Defendant's wife, and one of the Defendants' daughters confirmed details surrounding the crimes.

         The victim's mother and Defendant's wife, Mrs. Franklin, had been friends for a number of years and lived in the same apartment complex in the late summer and early fall of 2013. The Defendant and Mrs. Franklin had two daughters, who were approximately two and three years older than the victim. The three children frequently visited one another's homes, and Mrs. Franklin testified that they played together daily, sometimes at the playground located at the apartment complex.

         The Defendant's family lived on the second floor, and Mrs. Franklin testified that the windows in the apartment's living room and bedroom faced the playground which "made it really easy to watch the kids." She noted that she could see the playground from the bed by lifting the blinds in the bedroom. The bedroom had a box spring and mattress on the floor. Mrs. Franklin testified that the Defendant had moved out of the apartment and was living with a friend by April of 2013 but that he occasionally returned to the apartment to watch the children while she worked the "late shift." The victim and her mother both testified that the Defendant lived at the apartment at the time of the first two rapes.

         The victim testified regarding three rapes that occurred while the Defendant was alone with the children. The first rape occurred after the start of the school year in 2013, when the victim went to Mrs. Franklin's apartment to see if the Defendant's daughters wanted to play. The girls watched television for a little while and were leaving to go to the playground when the Defendant called to the victim. The other girls continued outside, and she went into the Defendant's bedroom, where he told her to sit. There were no chairs, and she sat on the bed, which she described as a mattress on the floor. The Defendant told her to lie down, and when she said she did not want to, he repeated the command in a manner that was "meaner." The Defendant put an orange towel over the victim's head, pulled down her pants and underwear, told her to spread her legs out, and raped her. Although the victim could not see, she testified that the Defendant penetrated her vagina with something hard and warm that felt "like skin." The victim was in pain. The Defendant heard his daughters coming, stopped, and told the victim not to tell anyone. The victim went out and played with the Defendant's daughters for approximately twenty-five minutes. It began to get dark, and she went home.

         The victim took a shower at home and left her clothing on the floor. The victim's mother found the victim's underwear, which had blood in the crotch. She asked the victim about it, and the victim told her she had been climbing on the counter and had fallen on a cabinet door. The victim's mother testified that she accepted this explanation because climbing on the counters was characteristic ...

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