### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs O

ctober 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 sen

tence because

the mitigating factors outweighed the enhancement factors and, therefore, his sentence should have been reduced below t h e midpoint range of

twenty (20) year

s. After a review of the record, we affirm the sentence of the trial c ourt. Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court is Affirme

d.
D AVID G. H AYES , J., d eliver ed the opinion of the court, in which J AMES C URWOOD W ITT , J R
. and J OHN E VERETT W ILLIAMS , JJ., joined. Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Scott Bradley Price.
Paul G. Summers, Attorney Gen eral and Re porter; Michael M

oore, Solicitor Ge

neral; Angele M. Grego ry, Assist ant Attorney Gene ral; Randall E. Nic

hols District Attorn

ey General; and

Kevin Allen, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION Analysis
The Appellant argue

s that the trial cou

rt “abused its disc

retion by sentenc

ing the [Appellan

t] to twenty-one (21) years imprisonment, b ecause the mitigating factors outweighed the enhancing factors, and the trial court should havereduced the sentence below the presumptive midpoint of the applicable

range.” When a

n accused cha llenges 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. § 4 0-35-401( d) (1997); Statev. Ashby , 823 S.W.2d 16 6, 169 (Tenn. 1991). This presumption is "conditioned upon the-2-

affirmative showing in the record that the trial court considered the sentencing principles and al l relevant facts and circu

mstances." 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 po tential or lac k of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102, - 103, -210 (1997); Ashby , 823 S.W.2d at168.
If our review ref

lects that the tria

l court followed th

e statu tory sentenci ng procedure, imposed a lawful sentence

after havin

g 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 rec ord, then we may not modify the sentence even if we would have preferred a diffe rent 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. Po ole , 945 S.W.2d 93, 96 (T enn. 1997)). Furth

ermore, we emph

asize that facts

relevant to sentencing must be established by a preponderance of the evidence and n ot 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 "s

hall 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 th e court may set the

sentence above

the minim

um 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 a s appropriate

for the enhancement factors, and then reduce the sentence within the range as app

ropriate for the

mitigating factor

s." 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 ne c essary to establish the appropriate range; and (7) the offens e 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 c aused nor threa

tened serious bod

ily 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 reflect s that the Appellant’s firs t encounter with la

w enforcement o

ccurred while s

till a juvenile. His first adult conviction occurred when he was nineteen years old. His criminal history includes two counts of shopli fting, and driving o

n a revoked lice

nse . He was also declared a-3-

Habitual Motor Vehicle Of fender. 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 (Te nn. 2 001). “Human motivation is a tangled web, always complex and multifaceted.” Kissinger , 922 S .W.2d at 491

. Proving an appellant’s mo tive will always be a difficult task. Id. “Butthe 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 ar

gues that the trial c ourt erred by not giving more weight to the mitigating factors. The trial court, applying mitigating factor (1), found that the Appellant’s conduct didnot cause or thre

aten serious bodil

y 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. I

t 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 fac t 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 pol ice. While the trial co urt could have co

nsidered this fac

tor, the record a

lso reflects t

hat th e Appellant attempted to minimize his culpability by stating tha t it was t he 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 adeq uately support ed by the record. State v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). The weight to be a ff orded mitigating and enhancement factors derives from balancing relative degrees of culp

ability within

the totality of the circumstances of the case involved. Boggs , 932 S.W.2 d 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 w

eight 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.-4- CONCLUSION Following de novo review, we find the sentence of twenty-one (21) years impose

d 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