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

Opinion

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