FILED

May 12, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

FOR PUBLICATION

Filed: May 12, 1997

STATE OF TENNESSEE, )

)

Appellant/Appellee, ) HARDEMAN CRIMINAL

)

)

 Vs. ) HON. JON KERRY BLACKWOOD,

) JUDGE

)

CHAD DOUGLAS POOLE, )

)

Appellee/Appellant. ) No. 02-S-01-9607-CC-00064

For Appellant/Appellee: For Appellee/Appellant:

John Knox Walkup Gary Antrican

Attorney General & Reporter Public Defender

Michael E. Moore Jeannie Kaess

Solicitor General Assistant Public Defender

Somerville, Tennessee

Kathy Morante

Deputy Attorney General At Trial:

Nashville, Tennessee C. Michael Robbins

Assistant Public Defender

At Trial:

Elizabeth Rice

District Attorney General

Jerry Norwood

Assistant District Attorney

Somerville, Tennessee

O P I N I O N

AFFIRMED ANDERSON, J.
1

 “A victim of the offense was particularly vulnerable because of age or physical or mental

disability. . . .” Tenn. Code Ann. § 40-35-114(4)(199 0).

2

 “The defendant treated or allowed a victim to be treated with exceptional cruelty during

the comm ission of the offense.” Tenn. Code A nn. § 40-35-114(5)(1990).

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We granted this appeal to determine whether the trial court properly 

applied two enhancement factors -- whether the victim was “particularly

vulnerable,”1

 and whether the victim was treated with “exceptional cruelty”2

 -- to

increase the defendant’s sentence. 

The Court of Criminal Appeals decided that the trial court did not err by

applying the “exceptionally cruel” factor to the especially aggravated robbery

conviction, but did err in applying the “particularly vulnerable” factor because the

State must prove more than the victim’s age to prove a victim is “particularly

vulnerable.” We agree. We, therefore, affirm the Court of Criminal Appeals’

judgment.

BACKGROUND

The defendant, Chad Douglas Poole, entered guilty pleas to especially

aggravated robbery, especially aggravated burglary, and two counts of burglary

and theft. Following a sentencing hearing, the trial court found that the

defendant was a standard Range I offender and imposed the minimum sentence

for all of the offenses except for especially aggravated robbery, which has a

range of punishment from 15 to 25 years, and for which it imposed a term of 21

years.

The defendant Poole and a co-defendant knew that the victim, a 70-yearold woman, lived alone and operated a small grocery store. After planning the

robbery, they obtained a baseball bat, which Poole wrapped with black tape to

make it less visible. On June 23, 1994, they entered the victim’s home and

waited for approximately two hours. When the victim came home, the co-
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defendant struck her in the head with the baseball bat. The blow rendered the

victim unconscious. Poole and the co-defendant then took the victim’s purse

and other personal items. 

When the victim failed to appear at her grocery store the next day, family

members went looking for her. They found her where she had fallen, covered in

blood, suffering from a serious head injury. The victim was hospitalized for over

two weeks, including four days in intensive care. According to the victim’s sister,

the victim had been in “real good health” prior to the offense. As a result of the

attack, however, the victim suffered a loss in her hearing, which impaired her

balance and coordination. She also required the use of a walker and could no

longer live alone. 

A presentence report indicated that the defendant Poole was 21 years of

age at the time of sentencing. He had quit school following the ninth grade, was

a heavy user of marijuana, and had no history of steady employment. The

report also indicated that the defendant had prior convictions for burglary,

burglary of an automobile, and two counts of theft. 

The defendant testified that although he initially “didn’t want to be a part”

of the robbery, he knew the co-defendant planned to hit the victim with the

baseball bat. He also testified that they used the money stolen from the victim to

buy marijuana. A letter from a psychologist who evaluated Poole while in jail

noted that the defendant was “a non-assertive follower who can easily be

influenced or intimidated by his peers.”

In imposing the 21-year sentence for especially aggravated robbery, the

trial court applied four enhancement factors: the defendant’s prior history of

criminal convictions and behavior, Tenn. Code Ann. § 40-35-114(1); the victim
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was particularly vulnerable due to her age, Tenn. Code Ann. § 40-35-114(4); the

victim was treated with “exceptional cruelty,” Tenn. Code Ann. § 40-35-114(5);

and the offense was committed to gratify the defendant’s desire for pleasure or

excitement, Tenn. Code Ann. § 40-35-114(7). The trial court did not make

specific factual findings with regard to these factors. 

On appeal, the Court of Criminal Appeals held that the trial court properly

applied factors -114(1), criminal history, and (5), exceptional cruelty, but erred in

applying factors -114(4), particularly vulnerable, and (7), desire for pleasure. 

The State concedes that the Court of Criminal Appeals correctly found that the

trial court erred in applying the factor - desire for pleasure or excitement, and the

defendant concedes that the lower courts properly applied the factor - prior

history of criminal convictions and behavior. The Court reduced the punishment

from 21 to 19 years in light of the inappropriate enhancement factors. We

granted this appeal to address the State’s contention that “particular

vulnerability” was a proper enhancement factor and the defendant’s argument

that “exceptional cruelty” was not a proper enhancement factor. 

SENTENCING ACT OF 1989

In imposing a sentence pursuant to the Sentencing Act of 1989, the trial

court first must determine the applicable range of punishment based on the

severity of the offense and the defendant’s prior criminal convictions. These

statutory classifications, as well as the applicable ranges of punishment, are

established by the Legislature. See Tenn. Code Ann. §§ 40-35-106 to -109

(1990 & Supp. 1996). 

After determining the applicable range of punishment, the court must

presume that the minimum sentence in the applicable range is the presumptive

sentence to be imposed. If there are enhancement factors but no mitigating
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factors in the record, the court may “set the sentence above the minimum in that

range but still within the range.” If enhancement and mitigating factors are in the

record, the trial 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.” See Tenn. Code Ann. § 40-35-210(c), (d), & (f)(1990); State v. Jones,

883 S.W.2d 597, 601 (Tenn. 1994); State v. Adams, 864 S.W.2d 31, 33 (Tenn.

1993).

Only those enhancement factors authorized by the Legislature in Tenn.

Code Ann. § 40-35-114 may be used to enhance a sentence. The factors must

be “appropriate for the offense” and “not themselves essential elements of the

offense.” The purpose of these limitations is to 

exclude enhancement factors which are not relevant to the offense

and those based on facts which are used to prove the offense. 

Facts which establish the elements of the offense charged may not

also be the basis of an enhancement factor increasing punishment. 

The legislature, in determining the ranges of punishment within the

classifications of offenses, necessarily took into account the

culpability inherent in each offense.

State v. Jones, 883 S.W.2d at 601. Determining whether an enhancement factor

should be applied is a task that must be undertaken on a case by case basis. To

facilitate appellate review, the trial court “must place on the record its reasons for

arriving at the final sentencing decision, identify the mitigating and enhancement

factors found, state the specific facts supporting each enhancement factor found,

and articulate how the mitigating and enhancement factors have been evaluated

and balanced in determining the sentence.” Id. See also Tenn. Code Ann. § 40-

35-210(f)(1990). As an appellate court reviewing the length, range, or manner

of service of a sentence, we must conduct a de novo review of the record with a

presumption that the determinations made by the trial court were correct. Tenn.

Code Ann. § 40-35-401(d) (1990). If, as in this case, the trial court fails to
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comply with these statutory provisions, there is no presumption of correctness

and our review is de novo. State v. Jones, 883 S.W.2d at 600. 

PARTICULAR VULNERABILITY

The State argues that the trial court properly enhanced the defendant’s

sentence because the 70-year-old victim was “particularly vulnerable.” The

defendant maintains that the Court of Criminal Appeals correctly held that there

was no evidence in the record to show that this victim was particularly

vulnerable.

The Legislature has determined that a sentence may be enhanced if “a

victim of the offense was particularly vulnerable because of age or physical or

mental disability. . . .” Tenn. Code Ann. § 40-35-114(4). In State v. Adams, 864

S.W.2d at 35, we provided a framework for application of this factor:

[T]he vulnerability enhancement relates more to the natural

physical and mental limitations of the victim than merely to the

victim’s age. . . . The factor can be used . . . if the circumstances

show that the victim, because of his age or physical or mental

condition was in fact ‘particularly vulnerable,’ i.e., incapable of

resisting, summoning help, or testifying against the perpetrator. 

(Emphasis added; citations omitted). We stressed that the determination of

whether the factor applied was a “factual issue to be resolved by the trier of fact

on a case by case basis.” Similarly, in State v. Kissinger, 922 S.W.2d 482, 487

(Tenn. 1996), we again linked the vulnerability to proof of a mental or physical

limitation that created an “inability to resist, a difficulty in calling for help, or a

difficulty in testifying against the perpetrator.” 

Although it is not difficult to imagine cases in which the victim’s age,

whether very young or very old, may seem to equate with vulnerability, we chose
3

 The d issent arg ues tha t Adams should be limited to cases in which the victim’s age was

used a s an elem ent of the o ffense . We, howe ver, did not lim it Adams; to the contrary, we noted

generally that “the vulnerability enhancement relates more to the natural physical and mental

limitations of the victim than merely the victim’s age.” Thus, we concluded that in every case, the

State bear s the burd en of prov ing this fac tor sh ould a pply.

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in Adams not to presume such a conclusion in any case.3

 Moreover, because

Tenn. Code Ann. § 40-35-114(4) does not speak to specific ages, but rather to

vulnerability, we could not create a bright-line rule. Thus, we concluded that the

“State bears the burden of proving the victim’s limitations rendering him or her

particularly vulnerable.” State v. Adams, 864 S.W.2d at 35; see also State v.

Haynes, 899 S.W.2d 175 (Tenn. Crim. App. 1995).

In determining whether the State has met its burden, the trial court must

consider a number of factors and must make factual findings. It should consider

whether evidence in the record with regard to the victim’s age or physical and

mental attributes demonstrated an inability to resist the crime, summon help, or

testify at a later date. See e.g., State v. Clabo, 905 S.W.2d 197 (Tenn. Crim.

App. 1995)(factor properly applied where child victim of sexual offense suffered

from learning disability); State v. Buckmeir, 902 S.W.2d 418 (Tenn. Crim. App.

1995)(factor proper where defendant knew victim had “passed out” from drinking

and was unable to resist the commission of a sexual offense); State v. McKnight,

900 S.W.2d 36 (Tenn. Crim. App. 1994)(factor properly applied where victims of

sexual acts were very young, lacked family support, and looked to defendant for

friendship and approval). Such evidence, whether lay or expert testimony, must

relate to the victim’s physical or mental capacity at the time of the crime and not

at the time of trial or sentencing. See State v. Raines, 882 S.W.2d 376 (Tenn.

Crim. App. 1994)(court erred in applying factor based on its observations of

victim’s “frail physical stature” at some “undetermined point in the past”). The

evidence need not be extensive and additional weight may be given to the age of

the victim in those cases where a victim is extremely young or old. Nonetheless,
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the State must prove the factor is applicable and there must be evidence in the

record in addition to the victim’s age.

 The dissent contends that our interpretation ignores the plain meaning of

the statute, which it finds to be “plain, clear and unambiguous.” Yet the dissent,

unable to hold that a 70-year-old person is particularly vulnerable as a matter of

law, offers no plain or clear guidance on when the factor applies or what ages

will be presumed particularly vulnerable. Instead, to support its presumption, the

dissent cites “age and circumstances,” specifically observing that the victim lived

alone, and speculating on the apparent absence of home security systems or

guard dogs. This interpretation, we believe, is far from a plain meaning or a

bright-line test and would likely yield more arbitrary and disparate results than the

analysis in Adams, which relates age with physical or mental limitations. 

Moreover, because the Legislature has stated that an enhancement factor

must be “appropriate for the offense,” the court must necessarily consider the

nature of the offense and the manner in which it was committed. For example, a

perpetrator of a crime of violence may prey upon a different type of vulnerability

than would someone who committed crimes of misrepresentation or fraud. 

Thus, a victim with a severe physical disability may not be particularly vulnerable

to bribery or theft. See State v. Seals, 735 S.W.2d 849, 853 (Tenn. Crim. App.

1987)(elderly, infirm victim not particularly vulnerable where defendant stole

checks from victim’s mailbox). Similarly, the offense may be committed in such a

manner as to make the victim’s vulnerability irrelevant. In State v. Butler, 900

S.W.2d 305 (Tenn. Crim. App. 1994), for example, the defendant shot and killed

an elderly woman. The Court of Criminal Appeals held that although the victim

had a physical disability and used a walking cane, the State failed to show that

the victim’s vulnerability was a factor in the commission of the offense because

no victim, regardless of his or her physical or mental traits, could have resisted
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the offense committed in that manner. In short, the court must consider all of the

facts and circumstances of the offense in determining whether the particular

vulnerability factor is appropriate for the offense. 

The dissent asserts that this statement is a “suspect proposition”

unsupported by authority. To the contrary, as we have already discussed, the

Legislature has predicated the application of any enhancement factor on it being

“appropriate for the offense.” Tenn. Code Ann. § 40-35-114. The cases we

have cited from the Court of Criminal Appeals merely recognize this limitation

expressed by the Legislature. 

Moreover, the dissent’s fear that -114(4) may never be used to enhance

where the defendant uses a gun is unfounded. The use of a gun or other deadly

weapon, if not an element of the offense, is a separate basis for enhancement

under Tenn. Code Ann. § 40-35-114(8). It may also be a relevant consideration

in the application of enhancement factors -114(10), no hesitation in committing a

crime where risk to human life is high, or -114(16), offense committed where

potential for bodily injury to a victim was great. 

In applying these factors to this case, we note that the trial court made no

findings of fact beyond its mere recitation that the victim was particularly

vulnerable. Without question, this 70-year-old victim living alone was vulnerable

to the type of offense committed by the defendant. We do not hold nor do we

believe otherwise. Yet given the inherent ambiguity in attempting to determine

vulnerability solely from one’s age, we are unwilling to engage in potentially

unfounded presumptions. A person’s age alone may have little or no bearing on

size, strength or vitality. Thus, unless the State produces evidence of physical or

mental limitations at the time of the offense, along with proof of the victim’s age,

it cannot be presumed that the victim was particularly vulnerable based solely on
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her age. Accordingly, we conclude, as did the Court of Criminal Appeals, that

there is insufficient evidence in this record to support application of this factor.

EXCEPTIONAL CRUELTY

The defendant argues that the trial court should not have applied the

exceptional cruelty enhancement factor because the facts used to establish this

factor were the same facts used to prove the serious bodily injury element for

especially aggravated robbery. The State maintains that the factor was properly

applied because exceptional cruelty is not an element of especially aggravated

robbery. Moreover, the State stresses that the defendant’s actions constituting

exceptional cruelty were separate and distinct from those necessary to constitute

serious bodily injury.

As we have previously observed, enhancement factors must be

“appropriate for the offense” and “not themselves essential elements of the

offense.” Tenn. Code Ann. § 40-35-114. These limitations exclude

enhancement factors “based on facts which are used to prove the offense” or

“[f]acts which establish the elements of the offense charged.” State v. Jones,

883 S.W.2d at 601. The purpose of the limitations is to avoid enhancing the

length of sentences based on factors the Legislature took into consideration

when establishing the range of punishment for the offense. Id. 

We recognized these limitations in analyzing the enhancement factors in

Jones, supra. The defendant was charged with aggravated assault for

intentionally, knowingly or recklessly causing serious bodily injury to the victim,

and the trial court enhanced the sentence after finding that the victim’s injuries

were “particularly great.” Tenn. Code Ann. § 40-35-114(6). We concluded that
4

 Serious bodily injury requires proof of substantial risk of death, protracted

unconsciousness, extreme physical pain, protracted or obvious disfigurement, and protracted loss

or substantial impairment of a function of a bodily member, organ, or mental faculty. Tenn. Code

Ann. § 3 9-11-10 6(a)(33 ). 

5

 The Court of Criminal Appeals, although reaching a variety of results, has used a

similar analysis in determining whether the exceptional cruelty factor is appropriate for an

aggrav ated offe nse. See State v. Nix , 922 S.W.2d 894 (Tenn. Crim. App. 1995)(properly applied

to attem pted first-d egree m urder an d espe cially aggrava ted robb ery); State v. Kern, 909 S.W.2d 5

(Tenn. Crim. App. 1993)(properly applied to aggravated kidnapping and especially aggravated

robbery); State v. Carter, 908 S.W.2d 410 (Tenn. Crim. App. 1995)(properly applied to aggravated

kidnap ping and aggrava ted robb ery). Cf., State v. Williams, 920 S.W.2d 247 (Tenn. Crim. App.

1995) (“ excep tional crue lty is usually found in cases of abus e or torture ”); State v. Embry, 915

S.W .2d 451 (Tenn . Crim. App. 1995 )(not app licable bec ause fa cts to sup port exc eptional cr uelty

were no t “over and above th at incident” to aggrav ated rap e); Mann ing v. State, 883 S.W.2d 635

(Tenn. Crim. App. 1994)(not applied where facts supporting exceptional cruelty same as those

that made the offense aggravated rape).

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the conditions for proving the serious bodily injury element4

 “satisfy the definition

of a ‘particularly great’ injury” and that “proof of serious bodily injury will always

constitute proof of a particularly great injury.” Id. at 602. Thus, we held that the

“particularly great” injury enhancement factor was inappropriate for the offense of

aggravated assault.

Applying a similar analysis to this case, we first note that “exceptional

cruelty” is not an element of especially aggravated robbery. Tenn. Code Ann.

§ 39-13-403(a)(2)(1991). Moreover, we conclude that proof of serious bodily

injury, which is an element of especially aggravated robbery, does not

necessarily establish the enhancement factor of “exceptional cruelty.” In other

words, the facts in a case may support a finding of “exceptional cruelty” that

“demonstrates a culpability distinct from and appreciably greater than that

incident to” the crime of especially aggravated robbery. See State v. Jones, 883

S.W.2d at 603. If so, a sentence may be properly enhanced on this basis.

As the Court of Criminal Appeals has explained, the “trial court should

state what actions of the defendant, apart from the elements of the offense,

constituted ‘exceptional cruelty.’” State v. Godwin, 909 S.W.2d 35, 45 (Tenn.

Crim. App. 1995).5
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Here, the trial court made no findings to support its application of this

factor. In holding that the factor was nonetheless appropriate, the Court of

Criminal Appeals said:

This elderly woman was knocked unconscious by a blow to the

head with a baseball bat. Even though the defendants knew that

the victim lived alone, they left her lying unconscious and bleeding

under such circumstances that it was unlikely that her condition

would soon be discovered. In fact, the victim remained in such a

condition all night long and was discovered by family members the

next day. Because of the delay in receiving medical treatment, the

victim is extremely fortunate to have survived this attack.

We agree that there was evidence of exceptional cruelty separate and apart from

the actions which constituted the offense of especially aggravated robbery in this

case. Accordingly, we agree the enhancement factor was properly applied. 

CONCLUSION

We have concluded that the State failed to prove that the victim was

“particularly vulnerable” pursuant to Tenn. Code Ann. § 40-35-114(4) and that

this factor cannot be presumed solely from the victim’s age. Accordingly, this

factor should not have been applied to enhance the sentence. We have further

concluded that the evidence supported a finding that the defendant’s actions,

separate and distinct from those constituting the offense, were exceptionally

cruel. Accordingly, this factor was properly applied to enhance the sentence

under Tenn. Code Ann. § 40-35-114(5). We therefore affirm the judgment of the

Court of Criminal Appeals.

________________________________

E. RILEY ANDERSON, JUSTICE

Concur: 

Birch, C.J.

Reid, J.

Drowota, J., dissenting - see separate Dissenting Opinion
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