         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 30, 2001

             STATE OF TENNESSEE v. SCOTT BRADLEY PRICE

                   Direct Appeal from the Criminal Court for Knox County
                          No. 63426    Mary Beth Leibowitz, Judge



                                 No. E2000-00441-CCA-R3-CD
                                      November 19, 2001

The Appellant, Scott Bradley Price, was convicted of child rape, a class A felony, following
a Knox County jury trial. The trial court sentenced Price, as a range I offender, to twenty-one (21)
years in the Department of Correction. In his sole issue on appeal, Price argues that the trial court
erred in the length of sentence because the mitigating factors outweighed the enhancement factors
and, therefore, his sentence should have been reduced below the midpoint range of twenty (20) years.
After a review of the record, we affirm the sentence of the trial court.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
JOHN EVERETT WILLIAMS, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Scott Bradley Price.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Angele M.
Gregory, Assistant Attorney General; Randall E. Nichols District Attorney General; and Kevin
Allen, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                              Analysis

        The Appellant argues that the trial court “abused its discretion by sentencing the [Appellant]
to twenty-one (21) years imprisonment, because the mitigating factors outweighed the enhancing
factors, and the trial court should have reduced the sentence below the presumptive midpoint of the
applicable range.” When an accused challenges the length, range, or the manner of service of a
sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that
the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997);
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is "conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances." Ashby, 823 S.W.2d at 169. Furthermore, when conducting a de
novo review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and
the sentencing hearing; (b) the pre-sentence report; (c) the principles of sentencing and arguments
as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
any statutory mitigating or enhancement factors; (f) any statement that the Appellant made on his
own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code
Ann. § 40-35-102, -103, -210 (1997); Ashby, 823 S.W.2d at168.

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after having given due consideration and proper weight to the factors and
principles set out under the sentencing law, and made findings of fact that 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). However, where the trial
court fails to comply with the statutory provisions of sentencing, appellate review is de novo without
a presumption of correctness. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v.
Poole, 945 S.W.2d 93, 96 (Tenn. 1997)). Furthermore, we emphasize that facts relevant to
sentencing must be established by a preponderance of the evidence and not beyond a reasonable
doubt. Id.

         In the present case, the Appellant was convicted of child rape, a class A felony. Tenn. Code
Ann. § 39-13-522 (1997). As a range I offender, the sentencing range for child rape is fifteen (15)
to twenty-five (25) years. Tenn. Code Ann. § 40-35-112(a)(1) (1997). The presumptive sentence
for a class A felony "shall be the midpoint of the range if there are no enhancement or mitigating
factors." Tenn. Code Ann. § 40-35-210(c) (1997). Where enhancement factors are present, but no
mitigating factors, "then the court may set the sentence above the minimum in that range but still
within the range." Tenn. Code Ann. § 40-35-210(d) (1997). Where there are both enhancing and
mitigating factors present, "the court must start at the minimum sentence in the range, enhance the
sentence within the range as appropriate for the enhancement factors, and then reduce the sentence
within the range as appropriate for the mitigating factors." Tenn. Code Ann. § 40-35-210(e) (1997).
The trial court found two enhancement factors: (1) the Appellant had a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate range;
and (7) the offense involved a victim and was committed to gratify the Appellant’s desire for
pleasure or excitement. See Tenn. Code Ann. § 40-35-114 (1997). The trial court also applied two
mitigating factors: (1) the Appellant’s criminal conduct neither caused nor threatened serious bodily
injury; and (13) any other factor consistent with the purposes of this chapter, [i.e., (1) admission to
the offense, and (2) cooperation with the police]. See Tenn Code Ann. § 40-35-113 (1997).

        The Appellant first contends that enhancement factor (1) was misapplied. The presentence
report reflects that the Appellant’s first encounter with law enforcement occurred while still a
juvenile. His first adult conviction occurred when he was nineteen years old. His criminal history
includes two counts of shoplifting, and driving on a revoked license. He was also declared a


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Habitual Motor Vehicle Offender. Thus, the trial court properly considered the Appellant’s prior
criminal history under enhancement factor (1).

         Second, the Appellant contends that the trial court erred in applying enhancement factor (7),
i.e., the offense was committed for the Appellant’s pleasure or excitement. Enhancement factor (7)
calls into question an appellant’s motive for committing a crime. State v. Kissinger, 922 S.W.2d
482, 491 (Tenn. 1996); see also State v. Arnett, 49 S.W.3d 250, 261-62 (Tenn. 2001). “Human
motivation is a tangled web, always complex and multifaceted.” Kissinger, 922 S.W.2d at 491.
Proving an appellant’s motive will always be a difficult task. Id. “But the legislature . . . has placed
that obligation on the [S]tate when the state seeks an enhanced sentence.” Id. We find that the trial
court improperly applied this factor because the State has failed to carry its burden of showing that
the offense was committed to gratify the Appellant’s desire for pleasure or excitement.

        The Appellant next argues that the trial court erred by not giving more weight to the
mitigating factors. The trial court, applying mitigating factor (1), found that the Appellant’s conduct
did not cause or threaten serious bodily harm. We disagree and are compelled to note that every rape
is physically and mentally injurious to the victim. See Kissinger, 922 S.W.2d at 487. It is difficult
to conceive of any factual situation where the rape of a child would not threaten serious bodily
injury. Notwithstanding this fact, serious bodily injury as defined by the statute includes an injury
that involves "extreme physical pain; . . . or substantial impairment of a . . . mental faculty.” Tenn.
Code Ann. § 39-11-106(a)(34) (1997). Clearly, the fact that the victim was sexually penetrated at
age twelve necessarily includes a threat of mental impairment. The record reflects that the victim
underwent extended counseling and has difficulty coping with normal activities. Accordingly, we
find mitigating factor (1) is inapplicable in this case.

        Finally, the Appellant argues that due to the presence of non-enumerated mitigators, his
sentence should have been mitigated below the midpoint range. The trial court applied mitigating
factor (13) because the Appellant admitted his participation in the crime and cooperated with the
police. While the trial court could have considered this factor, the record also reflects that the
Appellant attempted to minimize his culpability by stating that it was the victim who instigated
sexual intercourse.

        The weight to be afforded an existing factor is left to the sentencing court's discretion so long
as the court complies with the purposes and principles of the 1989 Sentencing Act and its findings
are adequately supported by the record. State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App.
1996). The weight to be afforded mitigating and enhancement factors derives from balancing
relative degrees of culpability within the totality of the circumstances of the case involved. Boggs,
932 S.W.2d at 476; see also State v. Marshall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993).
Based upon his prior criminal history and after affording little weight to mitigating factor (13), we
conclude that the record supports enhancement of the Appellant's sentence one year beyond the
midpoint range. Based upon the foregoing, we find the imposition of a sentence of twenty-one (21)
years is justified.


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                                        CONCLUSION

        Following de novo review, we find the sentence of twenty-one (21) years imposed for child
rape to be appropriate in the present case. Accordingly, we affirm the sentence imposed by the Knox
County Criminal Court.



                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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