I Agree With Judge Welles' Analysis In The Majority Opinion. State v. Adams

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER SESSION, 1995
FILED
January 31, 1996
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9506-CC-00178
) Cecil Crowson, Jr.
Appellate Court Clerk
Appellee, )
)
) HARDEMAN COUNTY
VS. )
) HON. JON KERRY BLACKWOOD
CHAD DOUGLAS POOLE, ) JUDGE
)
Appellant. ) (Sentencing)
CONCURRING OPINION
I agree with Judge Welles' analysis in the majority opinion. State v. Adams,
864 S.W.2d 31 (Tenn. 1993) places the burden on the prosecution to show how a
victim, because of his or her age, was "particularly vulnerable." Id. at 35; Tenn.
Code Ann. § 40-35-114(4) (Supp. 1995). In Adams the youngest victim was four
years old. The victim in the case sub judice was seventy-one.
Adams applies and is the law in Tennessee. But I think our Supreme Court
should give lower courts guidance as to the boundaries outside of which the
sentencing court can rely on common sense in determining vulnerability. What if the
victim is one year old? Or what if (s)he is ninety-four years old? Does the
prosecution need to call a doctor to testify about particular vulnerability in those
cases? I submit this issue to our high court for instruction.
I concur with the majority.
_________________________________
PAUL G. SUMMERS, Judge