IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1997 SESSION FILED October 10, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr. ) Appellate C ourt Clerk APPELLEE, ) ) No. 02-C-01-9605-CC-00168 ) ) Madison County v. ) ) Whit Lafon, Judge ) ) (Aggravated Sexual Battery) STEVEN DARRELL LITTLE, ) ) APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Jerry M. Mosier John Knox Walkup Attorney at Law Attorney General & Reporter 204 West Baltimore 500 Charlotte Avenue Jackson, TN 38302-1623 Nashville, TN 37243-0497
Clinton J. Morgan Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
James G. Woodall District Attorney General P.O. Box 2825 Jackson, TN 38302-2825
James W. Thompson Assistant District Attorney General P.O. Box 2825 Jackson, TN 38302-2825
OPINION FILED:______________________________
CONVICTIONS AFFIRMED; REMANDED FOR NEW SENTENCING HEARING
Joe B. Jones, Presiding Judge OPINION
The appellant, Steven Darrell Little (defendant), was convicted of two counts of
aggravated sexual battery, a Class B felony, by a jury of his peers. The trial court found
that the defendant was a standard offender and imposed Range I sentences consisting of
confinement for twelve (12) years in the Department of Correction for each count, to be
served concurrently. In this Court, the defendant contends the evidence is insufficient to
support his convictions. He further contends the trial court erred by (a) denying his motion
for a severance, (b) overruling his objection to a statement made by 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
by the parties, and the law governing the issues presented for review, it is the opinion of
this Court that the defendant’s convictions should be affirmed, but this case is remanded
to the trial court for a new sentencing hearing.
The defendant was involved in an accident several years prior 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 defendant visited Highland Park practically every
day. He met several of the children who attended a supervised camp at the park. There
were two people who supervised the children.
In July of 1995 the defendant was visiting 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. The defendant then touched the genital area
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 revealing the genital area of her body.
He stated he left the bench area and went towards a stage, and then towards a pavilion
1 It is the policy of this Court not to identify the minor victims of sexual abuse.
2 where the supervisors congregated. 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 asking the
girls to reveal the genital area of their bodies, and he denied touching either victim.
I.
The defendant contends the evidence contained in the record will not support a
finding by a rational trier of fact finding that he was guilty of the offenses in question
beyond a reasonable doubt. He argues “the inconsistencies in the stories of the minor
victims, when considered in conjunction with the locations 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 short, the defendant wants this Court to redetermine the credibility
of the young victims.
It is a well-established rule of law that questions concerning the credibility of the
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact, not this Court. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). As the supreme court said in State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973): “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the State.” In other words, this Court cannot redetermine the credibility of the youthful
witnesses. The issues of credibility and believability were determined by the jury.
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 court was correct
because the record does not contain a transcription of the hearing on the motion. The
record contains an order denying the motion which indicates the motion was brought to the
3 attention of the trial court, the court held a hearing on the motion, and the court
subsequently denied the motion.
This Court has reviewed the record in an attempt to find a transcription of the
hearing on the motion for severance. The hearing has not been memorialized by a
transcription of the proceeding. 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.
Crim. App. 1993), per. app. denied (Tenn. 1994). Instead, the court must presume the
ruling of the trial court was correct. State v. Richardson, 875 S.W.2d 671, 674 (Tenn.
Crim. App. 1993), per. app. denied (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 error of prejudicial dimensions by
overruling his objection to a statement made by the assistant district attorney general
during summation. He argues the assistant district attorney general told the jury to take
this case “in the totality” instead of telling the jury it must consider each case on its
individual merits. The State of Tennessee argues the objection made by the defendant
was insufficient, as a matter of law, because it did not state the grounds or reasons 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 during the state’s summation:
MR. THOMPSON: Now we had one child in here who might be a doubt, but we’ve got three children who say it happened to them, and we’ve got another child, a fourth child, it didn’t happen to him, [GLS], but he saw it happen to one of the children. I submit to you in taking this case in its totality, that your verdict should be guilty as charged.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1997 SESSION FILED October 10, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr. ) Appellate C ourt Clerk APPELLEE, ) ) No. 02-C-01-9605-CC-00168 ) ) Madison County v. ) ) Whit Lafon, Judge ) ) (Aggravated Sexual Battery) STEVEN DARRELL LITTLE, ) ) APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Jerry M. Mosier John Knox Walkup Attorney at Law Attorney General & Reporter 204 West Baltimore 500 Charlotte Avenue Jackson, TN 38302-1623 Nashville, TN 37243-0497
Clinton J. Morgan Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
James G. Woodall District Attorney General P.O. Box 2825 Jackson, TN 38302-2825
James W. Thompson Assistant District Attorney General P.O. Box 2825 Jackson, TN 38302-2825
OPINION FILED:______________________________
CONVICTIONS AFFIRMED; REMANDED FOR NEW SENTENCING HEARING
Joe B. Jones, Presiding Judge OPINION
The appellant, Steven Darrell Little (defendant), was convicted of two counts of
aggravated sexual battery, a Class B felony, by a jury of his peers. The trial court found
that the defendant was a standard offender and imposed Range I sentences consisting of
confinement for twelve (12) years in the Department of Correction for each count, to be
served concurrently. In this Court, the defendant contends the evidence is insufficient to
support his convictions. He further contends the trial court erred by (a) denying his motion
for a severance, (b) overruling his objection to a statement made by 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
by the parties, and the law governing the issues presented for review, it is the opinion of
this Court that the defendant’s convictions should be affirmed, but this case is remanded
to the trial court for a new sentencing hearing.
The defendant was involved in an accident several years prior 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 defendant visited Highland Park practically every
day. He met several of the children who attended a supervised camp at the park. There
were two people who supervised the children.
In July of 1995 the defendant was visiting 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. The defendant then touched the genital area
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 revealing the genital area of her body.
He stated he left the bench area and went towards a stage, and then towards a pavilion
1 It is the policy of this Court not to identify the minor victims of sexual abuse.
2 where the supervisors congregated. 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 asking the
girls to reveal the genital area of their bodies, and he denied touching either victim.
I.
The defendant contends the evidence contained in the record will not support a
finding by a rational trier of fact finding that he was guilty of the offenses in question
beyond a reasonable doubt. He argues “the inconsistencies in the stories of the minor
victims, when considered in conjunction with the locations 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 short, the defendant wants this Court to redetermine the credibility
of the young victims.
It is a well-established rule of law that questions concerning the credibility of the
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact, not this Court. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). As the supreme court said in State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973): “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the State.” In other words, this Court cannot redetermine the credibility of the youthful
witnesses. The issues of credibility and believability were determined by the jury.
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 court was correct
because the record does not contain a transcription of the hearing on the motion. The
record contains an order denying the motion which indicates the motion was brought to the
3 attention of the trial court, the court held a hearing on the motion, and the court
subsequently denied the motion.
This Court has reviewed the record in an attempt to find a transcription of the
hearing on the motion for severance. The hearing has not been memorialized by a
transcription of the proceeding. 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.
Crim. App. 1993), per. app. denied (Tenn. 1994). Instead, the court must presume the
ruling of the trial court was correct. State v. Richardson, 875 S.W.2d 671, 674 (Tenn.
Crim. App. 1993), per. app. denied (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 error of prejudicial dimensions by
overruling his objection to a statement made by the assistant district attorney general
during summation. He argues the assistant district attorney general told the jury to take
this case “in the totality” instead of telling the jury it must consider each case on its
individual merits. The State of Tennessee argues the objection made by the defendant
was insufficient, as a matter of law, because it did not state the grounds or reasons 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 during the state’s summation:
MR. THOMPSON: Now we had one child in here who might be a doubt, but we’ve got three children who say it happened to them, and we’ve got another child, a fourth child, it didn’t happen to him, [GLS], but he saw it happen to one of the children. I submit to you in taking this case in its totality, that your verdict should be guilty as charged.
MR. MOSIER: Your Honor please, I want to object to that line of argument.
THE COURT: All right, note your exception.
MR. THOMPSON: Because each of these children, by stating what happened, corroborate each other.
4 This is the only part of the state’s summation contained in the record. The balance of the
summation was not transcribed.
As a general rule, this Court is to consider the context of a statement by an assistant
district attorney general in the context of the entire summation. The Court cannot do this
in this case because the vast majority of the state’s summation was not transcribed.
Nevertheless, the trial court did not abuse its discretion by overruling the defendant’s
argument to this portion of the state’s summation. The two victims were together most of
the time. They were together when the defendant asked them to show him their respective
genital areas. G.L.S. saw the defendant touching the genital area of C.M. Thus, the
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 assistant district
attorney general stated, he was simply suggesting the testimony of corroboration given by
the witnesses should be considered along with the testimony of each victim. The assistant
district attorney general was not attempting to have the jury consider all three crimes in
determining the guilt of the defendant in each individual case. Thus, the trial court did not
abuse its discretion by overruling the defendant’s objection.
IV.
The defendant contends the trial court did not comply with the provisions of the
Criminal Sentencing Reform Act of 1989. The State of Tennessee states “[i]t is obvious
that the trial court’s one sentence statement does not meet the requirements of the
statute.” However, the state asks this Court to decide this issue by conducting a de novo
review without a presumption of correctness of the trial court’s findings of fact.
When sentencing the defendant, the trial court stated: “All right. It is the judgment
of the Court that the Defendant receive a sentence of the maximum for Range I, 12 years
on each, and they run concurrent.” The record does not reveal what enhancement factors
and what mitigating factors the trial court considered when determining the length of the
sentence imposed.
5 Most enhancement factors are fact driven. The record appears to support at least
three enhancement factors. It is unknown if the trial court considered or rejected these
factors.
This Court is of the opinion this cause should be remanded to the trial court for a
new sentencing hearing. On remand the trial court should state on the record what it
considers in determining the length 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, PRESIDING JUDGE
CONCUR:
___________________________________ DAVID H. WELLES, JUDGE
___________________________________ JOE G. RILEY, JUDGE