          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE        FILED
                          OCTOBER 1998 SESSION
                                                    December 7, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 01C01-9712-CR-00563
      Appellee,                     )
                                    )    DAVIDSON COUNTY
VS.                                 )
                                    )    HON. J. RANDALL WYATT, JR.,
JOHN JAMES,                         )    JUDGE
                                    )
      Appellant.                    )    (Re-Sentencing)



FOR THE APPELLANT:                       FOR THE APPELLEE:

THOMAS F. BLOOM                          JOHN KNOX WALKUP
500 Church Street, 5th Floor             Attorney General and Reporter
Nashville, TN 37219-2349
                                         KIM R. HELPER
                                         Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         VICTOR S. JOHNSON III
                                         District Attorney General

                                         WILLIAM R. REED
                                         Assistant District Attorney General
                                         222 - 2nd Avenue North
                                         Washington Square, Suite 500
                                         Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                    OPINION



       Defendant was convicted by a Davidson County jury of thirteen counts of

sexual abuse of his nine-year-old stepdaughter. The trial court ordered defendant

to serve an aggregate sentence of seventy years. On direct appeal, this Court

reversed three of the convictions and remanded the case to the trial court for re-

sentencing.    See State v. John James, C.C.A. No. 01C01-9601-CR-00016,

Davidson County (Tenn. Crim. App. filed March 27, 1997, at Nashville). Upon

remand the trial court ordered defendant to serve an aggregate sentence of fifty

years. Defendant appeals this sentence contending that all counts should be run

concurrently for a total sentence of twenty years. We AFFIRM the sentencing

decision of the trial court.




                                     FACTS



       Defendant was indicted in a thirteen-count indictment charging him with

various acts of sexual abuse. Testimony revealed that all of these incidents

involved defendant’s nine-year-old stepdaughter and occurred over the course of

at least one year. Defendant admitted sexual relations with his stepdaughter to a

Department of Human Services representative, a police department detective, and

a sex offender therapist.




                               PROCEDURAL HISTORY



       Defendant was originally found guilty of one count of rape of a child, six

counts of aggravated rape, and six counts of aggravated sexual battery and

received an aggregate sentence of seventy years. On direct appeal, this Court

reversed and dismissed the convictions for rape of a child and two counts of


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aggravated rape. We affirmed the remaining ten convictions and remanded the

case for re-sentencing. In doing so, this Court expressly approved the mid-range

sentences in each count. We further noted the appropriateness of consecutive

sentencing but requested findings pursuant to State v. Wilkerson, 905 S.W.2d 933

(Tenn. 1995). 1

       Upon remand, the trial court chose not to disturb the length of its original

sentences (twenty years for each aggravated rape and ten years for each

aggravated sexual battery). It did, however, reconsider the consecutive sentencing

issue and imposed an aggregate fifty-year sentence.

       Defendant appeals this decision and avers that all sentences should be run

concurrently for a total twenty-year sentence.




                                             I.



       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       The record clearly reflects a careful, thorough review of all sentencing

principles by the trial court. At the re-sentencing hearing, the trial court heard

testimony, reviewed written reports, and considered the Court of Criminal Appeals

opinion remanding the case. It took the matter under advisement and prepared a

comprehensive written sentencing order addressing all applicable concerns. Thus,

our review of the fifty-year sentence imposed is de novo with the attached

presumption of correctness.




       1
         In fairness to the trial court, we note that Wilkerson was decided subsequent to
the original sentencing hearing.

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                                         II.



      We first examine the length of the sentences imposed. At the original

sentencing hearing, the trial court imposed mid-range sentences for each count.

This Court expressly approved the length of those sentences, and defendant

assigns no error in this regard. Thus, the twenty-year and ten-year sentences for

four counts of aggravated rape and six counts of aggravated sexual battery,

respectively, are appropriate.




                                         III.



      We next examine the trial court’s imposition of consecutive sentences.

Defendant qualifies for consecutive sentencing under Tenn. Code Ann. § 40-35-

115(b)(5) since “[t]he defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and victim. . .

the time span of defendant’s undetected sexual activity, the nature and scope of the

sexual acts and the extent of the residual, physical and mental damage to the

victim.” In its remand order, this Court acknowledged the applicability of § 40-35-

115(b)(5).

       Thus, the remaining question is whether consecutive sentences comport with

the requirements that the sentence (1) reasonably relate to the severity of the

offenses committed; (2) serves to protect the public from further criminal conduct

by the offender; and (3) is congruent with the general principles of sentencing.

State v. Wilkerson, 905 S.W.2d at 939.



                                         A.

      In support of its decision to impose an effective sentence of fifty years, the

trial court writes, “without any question, the sentence announced herein is


                                          4
consistent with the severity of the numerous sexual acts perpetrated on this

innocent and vulnerable victim over an extended period of time.” The trial court thus

addressed the requirement that the sentence be reasonably related to the severity

of the offense. We will not disturb this finding.



                                          B.

       The defendant asserts there was no expert testimony at the re-sentencing

hearing to indicate that defendant poses a threat to the community or is likely to re-

offend. The trial court explicitly rejected this claim and found that the defendant is

at risk to re-offend in the future and, as such, poses a threat to the community.

       The defense called two expert witnesses: Dr. Harold Jordan, a psychiatric

expert, and Ms. Delores Butler, an expert in the treatment of sexual offenders. Dr.

Jordan’s and Ms. Butler’s testimony was presented to establish that defendant

poses no danger to the community upon release. However, the testimony of both

was tempered by the admonition that such release would require strict conditions

including counseling and no contact with the victim. Ms. Butler indicated that the

defendant would be most likely to “lose control” in a family situation and admitted

that defendant would require continuous treatment in order to avoid a relapse.

       The trial court also had before it a mental health evaluation performed prior

to the original sentencing hearing. That evaluation stated that defendant was at risk

to re-offend.

       There was sufficient evidence before the trial court to support its finding that

the public needs protection from further criminal conduct by the defendant. We will

not substitute our judgment for that of the trial court.




                                   CONCLUSION



       The trial court found that the circumstances of this case warrant an effective

fifty-year sentence and that the sentence serves to protect the public and the victim



                                          5
from any further serious criminal conduct by the defendant. Its findings and

conclusions comport with the principles of Wilkerson. If our review reflects that the

trial court followed the statutory sentencing procedure, imposed a lawful sentence

after giving due consideration and proper weight to the factors and principles set out

under our sentencing law, and the trial court’s findings of fact are adequately

supported by the record, then we may not modify the sentence even if we would

have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.

Crim. App. 1991).



       Therefore, we AFFIRM the trial court’s imposition of an effective fifty-year

sentence.




                                                  ____________________________
                                                  JOE G. RILEY, JUDGE

CONCUR:




____________________________
PAUL G. SUMMERS, JUDGE




____________________________
JOSEPH M. TIPTON, JUDGE




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