The Victim'S Age. W E Relied on State v. Adams, 864 S.W .2D 31 (Tenn. 1993).

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER SESSION, 1995
FILED
March 13, 1996
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9506-CC-00178
)
Cecil Crowson, Jr.
Appellee, ) Appellate Court Clerk
)
) HARDEMAN COUNTY
VS. )
) HON. JON KERRY BLACKSOOD
CHAD DOUGLAS POOLE, ) JUDGE
)
Appellant. ) (Sentencing)
OPINION ON PETITION TO REHEAR
The State of Tennessee has filed a petition to rehear requesting that this
court reconsider our opinion on the grounds that we have misapprehended a
material proposition of law. In our opinion, we held that for purposes of sentence
enhancement, proof that the victim of the robbery was seventy-one years old was
not “sufficient in and of itself to show particular vulnerability.” We stated that the
Tennessee Supreme Court has held that the vulnerability enhancement relates
more to the natural physical and mental limitations of the victim than merely to
the victim’s age. W e relied on State v. Adams, 864 S.W.2d 31 (Tenn. 1993).
In the petition to rehear, the State argues that our holding is based on an
erroneous reading of Adams. The State argues that the holding in Adams
concerning the vulnerability enhancement factor should be strictly limited in its
application to a crime in which the age of the victim is an essential element of the
crime.
In Adams, the Defendant had been convicted of aggravated rape. One of
the elements which elevated the crime to aggravated rape was that the victim
was less than thirteen years of age. The Supreme Court specifically held that
although the victim being under the age of thirteen was an essential element of
the aggravated rape, the trial judge was not precluded as a matter of law from
enhancing the punishment based upon the victim being particularly vulnerable
because of age, provided the State met its burden of proving the victim’s
limitations rendering him or her particularly vulnerable, “i.e., incapable of
resisting, summoning help, or testifying against the perpetrator.” Even though
one of the victims in Adams was four years old, the Supreme Court held that
proof of the age of the victim was not sufficient proof to show “particular
vulnerability.” 864 S.W .2d 31-35.
W e have carefully considered the State’s argument in its petition to rehear.
W e do not believe that Adams can be read as applying only to crimes in which
the age of the victim is an element of the offense. The enhancement factor is not
applicable if the victim is particularly young or particularly old. The enhancement
factor applies when the victim of the offense was particularly vulnerable because
of age or physical or mental disability. The State bears the burden of proving any
enhancement factor upon which it relies to enhance a sentence. In the case sub
judice, the victim was seventy-one years old. She may have been “particularly
vulnerable” because of her age. W e cannot conclude that every seventy-one-
year-old person is “particularly vulnerable” because of age. In Adams, the
Supreme Court held that proof that the victim of a sexual assault was four years
old was not proof, in and of itself, of “particular vulnerability” because of age.
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Most four-year-old children are more vulnerable because of age than are most
seventy-one-year-old adults.
As emphasized by the concurring opinions filed herein, Adams appears to
require the State to prove “particular vulnerability because of age,” even if the
proof shows that the victim is one year old or ninety-four years old. Although the
concurring opinions suggest that trial judges should be able to use common
sense in determining particular vulnerability of our state’s most youthful citizens
and our state’s most elderly citizens, Adams does not seem to allow proof of age
standing alone to ever satisfy the State’s burden of proving particular
vulnerability.
The State’s petition to rehear is denied.
Per Curiam
W elles, Summers, Barker
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