# FILED
October 10, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON JULY 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 02-C-01-9605-CC-0 0168 ) ) Madison County v. ) ) Whit La fon, Judge ) ) (Aggravate d Sexual B attery) STEVEN DARRELL LITTLE, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Jerry M. Mosier John Knox Walkup Attorney at Law Attorney General & Repor ter 204 West Baltimore 500 Charlotte Avenue Jackson, TN 38302-1623 Nashville, TN 37243-0497 Clinton J. Morgan Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 James G. Woodall District Attorney General P.O. Box 2825 Jackson, TN 38302-2825 James W. Thompson Assistant District A

ttorney General P.O. Box 2825 Jackson, TN 38302-2825

OPINION FILED:______________________________ CONVICTIONS AFFIRMED; REMANDED FOR NEW SENTENCING HEARING Joe B. Jones, Pre siding Judge1 It is the policy of this Court not to identify the mi nor victims of sexual abuse.

2 

## O P I N I O N

The appellant, Steven Darrell Little (defendant), was convic ted of two counts of aggravatedsexual bat tery, a Clas s B felon y, by a jury of his peers. The tr ial court found that the defendantwas a standard offender and imposed R ange I sentences consistin g of confinementfor twelve (12) years i n the Department of Correction for each count, to be served concurre ntly. In this Court, the defendant contends the evidence is i nsufficient to support his convictions. He further contends the trial c ourt erred by

(a) denying his moti on fora severance, (b) ov erruling his objecti on to a statement madeby the assistant district attorney general during summation, and (c) failing to follow the mandates of the Tennessee Sentencing Reform Act of 1989. After a thorough review

of the record, the briefs submitted bythe parties, and the law governi ng the issues presented for review, it is the opinion of this Court that the defendant’s convictions should be affirmed, butthis case is remanded to the trial court for a new senten cing hearing. The defendant was involved in an accident several years p ri or to the commission of the crimes in question. He suffered an injury to his spinal cord and is now paralyzed from his chest down

to his feet. He has no feeling in this portion of his body. He is confined to a wheelchair. During the summer of 1995, the defenda nt visited Highland Park practicallyevery day. He met severalof the children who attended a supervised camp at the park. There were two people w

ho supervised the childr en. In July of 1995 the defendant wasvisiting the park. He asked C.M. and A.Y. , 1 two very young girls, to show him the genital area of their respective bodies . Both C.M. and A.Y. complied with the defendant’s request. Thedefendant then touched the genital ar ea of both girls. The defendant testified in support of his defense.He related he was at a bench with several children when A.Y. revealed the genital area of her body while sitting on the bench. According to the defendant, C.M. was behind a tree reve aling the genital ar ea of he r body. He state d he left the bench area and went towards a stage, and then towards a pavilion3

where the supervisors congr egated. He blamed a

young boy, G.L.S., for what occurred. He testified G.L.S. “instigated what happened out there in the park.” He denied aski ng the girls to r eveal the genital area

of their bodi es, and he deni ed touching either vi ctim.

I.

The defendant c on tends the evidence contained i n the record will not support a finding by a rational trier of fact finding that he was gui lty o f the offenses in question beyond a reasonable doubt. He arg ues “the inconsistencies in the stories of the minor victims, when considered in conjunction with the l ocations described in the proof and the
numerous people in the area, make it highly improbable, if not impossible for the offenses to have occurred.” In sh ort, the defendant wants this Court to redetermine the

credibility of the young victims. It is a well-established r ule of law that questions concerning the credibil ity of th e witnesses, the weight and valu e to be gi ven the evidence, as w ell as all factual issues raised by the evidence are r esolved by the trier

of fact, not this Court. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). As the supreme court s aid in State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973): “A guilty verdict by the jury, approved by the tri al ju dge, accreditsthe testimony of the witnes ses for the State and resolves all conflic ts in favor of the State.” In other words , this Cour t cannot redetermine the credi bility of the youthful witnesses . The issu es of cre dibility an d believab ility were de termine d by the jur y. This issue is without merit.

II.

The defendant contends the trial court committed error

of prejudicial dimensions by denying his motion for a severance of the counts contained in the indictment. The State of Tennessee contends this Court must presume the ruling of the trial co urt was correct because the record does not contain a transcrip ti on of the hearing on the motion. The record containsan order denying the moti on which indicates the moti on wasbrought to the4

attention of the trial cour t, the court held a hearing on the motion, and the court subsequently denied the moti on. This Court has reviewed the record in an attempt to find a t ranscription of th e hearing on the motion for severance. The h earing has not been memoria lized by a transcription of the proc eeding. Thus, this Court may not consider this issue. State v. Ballard , 855 S.W.2d 557, 560-61 (Tenn. 1993); State v. Banes , 874 S.W.2d 73, 82 (Tenn. Cri m. App. 1993), per . app . denied (Tenn. 1994). Instead, the court must presume t h e ruling of the trial court was correct. State v. Richardson , 875 S.W.2d 671, 6 74 (Tenn. Crim. App. 1993), per . app . de n ied (Tenn. 1994); State v. Oody , 823 S.W.2d 554, 558 (Tenn. Crim. App.), per . app . denied (Tenn. 1991).

III.

The defendant contends the trial court committed er ror of prejudicial dimensi ons by overrulinghis objection to a stat emen t made by the assistant dis trict attorney gener

al during su mmati on. He argues the assistant district attorney general told the jury to take this case “in the totality” instead of t elling the jury it must consider each case on its individual merits. The State of Tennessee argues the objection made by the defendant
was insufficient, asa matter of law, because it d id notstate the grounds or reas ons for the objection. When addressing the merits, the State of Tennessee argues the defendant was not prejudiced by the comment as he was acquitted of one count

. The following occurred du ring the state’s summation:
MR. THOMPSON: Now we hadone child in here who mi ght be a doubt, but we’ve got three children who say it h appened to them, and we’ve got another child, a fourth chil d, it didn’t h appen to him, [GLS], but he saw it happen to o ne of th e children. I submit to you in taki ng this case in its totality , that your verdict shoul d be guilty as charged. MR. MOSIER: Your Honor pl ease, I wantto object to that line of argument. THE COURT: All right,note your exception. MR. THOMPSON: Because each of these children, by stati ng what happened, corroborate each other.5

This is the only part of the state’s s ummation contained in the record.The balance of the summation was not transcri bed. As a general rule, this Court is to consider the context of a s tatement by an assistant district attorney general in the context of the entire summation. The Court canno t do this i n this case because the vas t majority of the state’s s ummation was not trans cribed

. Nevertheless, t he trial court did not abuse its discretion by overruling the defendant’s argumentto this portion of the state’s summation. The two v ictims were together

most of the time. Th ey were toge ther when the def endant a sked the m to show h im their re spective ge nital areas. G.L.S. saw the defendant touching the genital area of C.M. Thus, th e testimony

of the three children supports the state’s theory. Furthermore, the testimony of each victim corroborated the testimony given by the other victim. As the assis tant district attorney general stated, he was simply suggesting the testimony of cor roboration given by the witnesses should be cons idered along with the testi mony of each victim. The assistant distric t attorney general was not attempting to have the jury consider all three cr imes i n determining the guilt of the defendant in each individual cas

e. Thus, the trial court did not abuse its discretion by

overruling the defendant’ s objection. This issue is without merit.

IV.

The defendant contends the trial court did not comply with the provisi ons of the Criminal Sentencing Reform Act of 1989. The State of Tennessee states “[i]t is obvious that the trial cour

t ’s one sentence statement does not meet the requirements of the statute.”However, the

state asks this Court to decide this issue by conducti ng a de novo review without

a presumption of correctness of the trial court’s findings of fact. When sentencing the defendant, the trial court st ated: “All right. I t is the judgment of the Court that the Defendant recei ve a sentence of

the maximum for Range I, 12 years
on each, and they run concurrent.” The record does not reveal what enhancemen t factors and what mitigating factors the trial court considered when det ermining the length of the sentence imposed.6 Most enhancement factors are fact driv en. The record appears to support at least three enhancement factors. It is unknow n i f the tria l court considered or rejected these factors. This Court is of the opinion this cause sh ould be reman ded to the trial court for a
new sentencing hearing. O n remand the trial cou rt sh ould state on the record what it considers in determining the leng th of the sentences imposed. State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994). If any party is aggrieved by

the sentences imposed, the party may appeal as of right pursuant to Tenn. Code Ann. §§ 40-35-401(d) or -402(d).

__ ________________

_____________________ _ JOE B. JONES, PRESID ING JUDGE
CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ JOE G. RILEY, JUD GE