State v. John James ( 2010 )

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
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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
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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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