          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE

                            OCTOBER SESSION, 1999
                                                             FILED
                                                            December 15, 1999

                                                            Cecil Crowson, Jr.
                                                           Appellate Court Clerk

STATE OF TENNESSEE,                   )   M1999-01740-CCA-R3-CD
                                      )
            Appe llant,               )
                                      )   CHEATHAM COUNTY
V.                                    )
                                      )
                                      )   HON. LEONARD W. MARTIN, JUDGE
RICKY DALE LANGFORD,                  )
                                      )
            Appellee.                 )   (THREE COUNTS RAPE OF A CHILD)



FOR THE APPELLEE:                          FOR THE APPELLANT:

WILL IAM B. (J AKE) L OCK ERT , III        PAUL G. SUMMERS
District Public Defender                   Attorney General & Reporter

STEVE STACK                                LUCIAN D. GEISE
Assistant Public Defender                  Assistant Attorney General
P.O. Box 464                               2nd Floor, Cordell Hull Building
Ashland City, TN 37015                     425 Fifth Avenue North
                                           Nashville, TN 37243

                                           DAN M. ALSOBROOKS
                                           District Attorn ey Ge neral

                                           JAMES W. KIRBY
                                           Assis tant D istrict Atto rney G enera l
                                           105 Sycamore Street
                                           Ashland City, TN 37015-1806




OPINION FILED ________________________
AFFIRMED

THOMAS T. WOODALL, JUDGE




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                                   OPINION

        The Ch eatham County G rand Jury indicted Defenda nt Ricky Dale L angford

for three counts of rape of a child and one count of incest. Defe ndan t subs eque ntly

pled guilty to three counts of rape of a child and the incest charge was nolled.

Following a sentencing hearing, the trial court imposed three concurrent sentences

of twenty yea rs. The S tate contends that the trial court should have imposed

consecu tive sentencing. After a review of the record, we affirm the judgment of the

trial court.



                                         FACTS




       Defendant began sexually abusing his eleven year old daughter in March of

1997. For ap proxim ately nin e mo nths, D efend ant en gage d in vag inal, anal, and oral

sex with his da ughter. D efenda nt adm itted to Barbara Wallace of the Department

of Children’s Services that he had engaged in eight acts of penile penetration and

eight acts of oral sex with his daughter, in addition to several incidents of fondling or

kissing.       According to Wallace, Defendant is an untreatable pedophile with a

mode rate to high risk of re-offending. As a result o f the se xual ab use, D efend ant’s

daughter has pa rticipated in c ounse ling in orde r to learn ho w to differentiate between

love and sex a nd how to co ntrol various “sexua lly acting out behaviors ”.




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                                       ANALY SIS




       The State contends that the trial court abused its discretion when it imposed

concurrent sentencing. We disagree.



       When the State challenges a defendant's sentence, the State has the burden

of showin g that the s entenc e is impro per. State v. Blouvet, 965 S.W.2d 489, 494

(Tenn. Crim. App. 1997); Tenn. Code Ann. § 40-35-401(d) (1997) (Sentencing

Commission Com men ts). In ad dition, o ur revie w is de novo with a presumption that

the trial court’s sentencing determinations were correct. Blouvet, 965 S.W.2d at 494;

Tenn. Code Ann. § 4 0-35-40 2(d) (Su pp. 1999). H owev er, this p resum ption "is

conditioned upon the affirm ative show ing in the record that the trial court considered

the sentencing principles and all rele vant facts and circu mstan ces." State v. Ashby,

823 S.W .2d 166, 169 (Tenn. 199 1).



       Consec utive sentencing is governed by Tennessee Code Annotated section

40-35-115 (b), which provides that “[t]he [trial] co urt may order sentences to run

cons ecutive ly if the court finds by a preponderance of the evidence that” one or more

of the required statu tory criteria exist. Tenn. Code Ann. § 40-35-115(b) (1997)

(emp hasis added).       “Whether sentences are to be served concurrently or

cons ecutive ly is a matte r addres sed to the soun d discretio n of the trial co urt. State

v. Adams, 973 S.W .2d 224 , 230–3 1 (Ten n. Crim. A pp. 199 7).



       During the sente ncing he aring, the tria l court state d that it recognized that

because Defendant had been convicted of two or more sexual offenses with a minor

victim, the court could impose consecutive sentencin g bas ed on Defe ndan t’s

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relation ship with the victim, the time sp an of the activity, the nature o f the activity,

and the residu al dam age to the victim. See Tenn. Code Ann. § 40-35-115 (b)(6)

(1997). The trial co urt then d iscusse d the na ture of the o ffenses, the injury to the

victim, the testimony that was presented during the hearing, Defendant’s age, and

the fact that Defendant would be required to serve 100% of a twenty year sentence.

The trial court then ruled that based on all of these considerations, a total sentence

of twenty years to be served at 100% was the proper and just result in this case.



       W e conclude that wh ile the tria l court p robab ly would have b een ju stified in

imposing consecutive senten cing in this c ase, the tria l court did n ot abus e its

discretion in imposing concurrent sentencing. Section 40-35-115(b) provides that

the trial court may, rather than must, impo se consec utive sentencing if one or more

of the enumerated factors is present. In this case, the trial court properly considered

all of the relevant sentencing criteria and exercised its discretion to impose

concu rrent, rather than con secutive sentencing. Because our review indicates that

the trial court imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law and the

trial court's findings are adequately supported by the record, we may not modify the

sentence even if we wou ld have p referred a different res ult. State v. Fletcher, 805

S.W.2d 785, 791 (T enn. C rim. App . 1991). In s hort, the S tate has failed to mee t its

burden of sho wing th at the s enten ce is improper. Accordingly, the judgment of the

trial court is AFFIRMED.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge




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CONCUR:



___________________________________
JOE G. RILEY, JR., Judge


___________________________________
JAMES CURW OOD W ITT, JR., Judge




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