# FILED
May 12, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA

TION 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 & Repor ter 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 A

ttorney Somerville, Tennessee



## O P I N I O N

AFFIRMED ANDERSON, J.1 “A vict im of the offense was particul arly v ulnerabl e because of age or phy sical or mental disability . . . .” Tenn. Code Ann. § 40-35-114(4)(199 0).

2 “The defendant t reated or al lowed a vi ctim to be tr eated wit h exceptional cruelty during the comm ission of the offense.” Tenn. Code A nn. § 40-35-114(5)(1990). -2- We gra nted thi s appeal to determ ine wheth er the tria l court pro perly applied two enhancement factors -- whether the victim was “particularly vulnerable,” 1 and wheth er the vict im was trea ted with “e xception al cruelt y” 2 -- to increase the defendant’s sentence.
The Court of Criminal Appeals dec ided that the trial court di d not err by applying the “exceptionally cruel” factor to the especially aggravated robbery conviction, but did err

in applying the “par

ticularly vulner

able” factor because the State must prove more than the victim’s age to prove a victim is “particularly vulnerable.” We agree. W e, therefore, affirm the Court of Crimina l Appeals’ judgment.

BACKGROUND The defendant, Chad Douglas Poole, ente red guilty pleas to especially aggravated robbery, especially aggravated burglary, and two counts of burglary and theft. Following a s entencing hearing, the tr ial court found that the defendant was a standard Range I offend er and imposed the minimum sentence for all of the offenses except for espe cially aggravated robbery, which has a range of punishment from 15 to 25 year s, and for which it imposed a term of 21 years.

The defendant Poole and a co-def endant knew that the victim, a 70-yearold woman, lived alone and operated a small grocer y store. After planning the robbery, they obtained a baseball bat, which Pool e wrapped with black tape to make it less visibl e. On June 23, 1994, they entere d the victim’s home and waited for approximately two hours. When the victim came home, the co--3- defendant struck her in the head w ith the baseball bat. The blow rendered the victim unconscious. Poole and the co-defendant the n took the victim’s purse and other personal items.
When the victim failed to app ear 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 victi m was hospitalized for over two weeks, including four days in intensive care. According to the victim’s sister, the victim had been in “r eal good health” prior t o the offense. As a result of the attack, however, the v

ictim suffered a loss in her hear ing, which impaired her balance and coordination. She al so required the use of a w alker and could no longer live alone.
A presentence report indicat ed that the defendant Poole was 21 y ears of age at the time of sentencing. He had quit school follow ing the ninth grade, w

as a heavy user of marijuana, and had no history of steady employment. The report al so indica ted that the def endant h ad prior co nvictions for burgl ary, burglary of an automobile, and two counts of theft.
The defendant testified that although he in itially “didn’t w ant to be a part” of the robbery, he knew the co-defendant planned to hit the vi ctim with the baseball bat. He also testi fied that they used the money st olen 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 enhanc ement factors: the defendant’s prior h istory of criminal convictions and behavior, Tenn. Code Ann. § 40-35-114(1); the victim-4- was particularly

vulnerable due to her ag e, 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 gr atify the defendant’s desire for pl easure or excitement, Tenn. Code Ann. § 40-35-114(7). The trial court did not make specific factual findings w ith regard to these factors

.
On appeal, the Court of Criminal Appeals held that the trial cou rt properly applied factors -114(1), criminal history, and (5), exceptional cruelty, but erred in applying factors -114(

4), particularly v

ulnerable, and (7), desir e for pleasure. The State concedes that the Court of Cr iminal Appeals correctly found that the trial court erred in applying the factor - des ire for pleasure or excitement, and the defendant concedes that the lower courts properly appli ed the factor - prior history of criminal con

victions and behavior. The Court reduced the punishment fr om 21 to 19 ye ar s i n l ig ht of th e i na pp ro pr ia

te en ha ncem en t f ac

to rs . We granted this appeal to addres s the State’s contention that “particular vulnerability” was a proper enhancement factor and the defendant’s argument that “exceptional cruel

ty” was not a proper

enhancement factor.

SENTENCING A

CT OF 1989 In imposing a sentence pursuant to the Sentencing Act of 1989, the trial court first must determine the ap plicable range of punishment bas ed on the severity of the offense and the defend ant’s prior criminal convictions. These statutory classifications, as well as the applicable ranges of punishment, are established by the Legis lature. See Tenn. Code Ann. §§ 40-35-106 to -109 (1990 & Supp. 1996).
After determining the applicable range of punishm ent, the court must presume that the minimum sentenc e in the ap plicable range is th e presum ptive sentence to be imposed. If there are enhancement factors but no mitigati ng-5- factors in the record, the cour t may “set the sentence abov e the minimum in that range but still wi

thin the range.” If enhancement and mitigating factors are in the record, the trial court “must start at the minimum sentence in the range, e nhance the sentence within the r ange as appropriate for the enhanc ement factors, and then reduce the sentence within the range as appropriat e 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. Ada ms , 864 S.W.2d 31, 33 (Tenn. 1993).
Only those enhancement factors authorized by the Legi slature in Tenn. Code Ann. § 40-35-114 may be used to enhance a sent ence. The factors must be “appropriate for the offense” and “no t themselves essential el ements of the offense.” The purpose of these limitations is to
exclude enhancement factors which are not relevant to the off ense and those based on facts which ar e used to prove the offense. Facts which establis h the elements of the offense charged may n ot also be the basis of an enhancement factor increasing punishment. The legislature, in deter mining the ranges of punishment within the classifications of offenses, necessar ily took into account th e culpability inherent in each offense.
State v. Jones , 883 S.W.2d at 601. Determining whether an enhancement factor should be appl ied is a tas k that must be undertaken o n a case by c ase basis. T

o facilitate appellate revi ew, the trial court “must place on the record its reasons for arriving at the final

sentencing decision, id entify the mitigating a nd enhancement factors found, state the specific facts s upporting 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 appell ate court reviewi ng the length, range, or manner of service of a sentence, w e 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 tr ial court fails to-6- 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 VULNERA BILITY The State argues that the trial court properly enhanced the def endant’s sentence because the 70-year- old victim was “particularly vul nerable.” 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 m ay be enhanced if “a victim of the offense was parti cularly vulnerabl e because of age or physical or mental disability. . . .” Tenn. Code Ann. § 40-35-114(4) . In State v. Ada ms , 864 S.W.2d at 35, we provided a frame work for application of this factor: [T]he vulnerability enhancement relates more to the natur al physical and mental limitations of the victim than mere ly to the victim’s age. . . . The factor can be used . . . if the cir cumstances show that the victim,because of his age or phys ical or mental condition was in fact ‘par ticularly vulner

able,’ i.e., incapable of resisting, summoning hel p, or testifying agai nst 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 li nked 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 w hich the victim’s ag e, whether very young or very old, may seem to equate with vulnerability, we chose3 The d issent arg ues tha t Ad ams should be l imited to cases in which the victi m’s age was used a s an elem ent of the o ffense . W e, howe ver, did not lim it Ad ams ; to the contrary , we noted generall y that

“the vul nerabil ity

enhancement relates more to the natur al physi cal and mental limitations of th e victi m than merely the vi ctim’s age.” Thus, we concluded t hat in ever y case, t he State bear s the burd en of prov ing th is fac tor sh ould a pply. -7- in Adams not to presume such a conclusi on in any case. 3 Moreover, because Tenn. Code Ann. § 40-35-114(4) does not speak to specific ages, but rather to vulnerability, w

e could not create a bright-line rule. Thus, we concluded that the “State bears the burden of prov ing the victim’s l imitations rendering hi m or her particularly vulnerable.” State v. Ada ms , 864 S.W.2d at 35; see also State v. Haynes , 899 S.W.2d 175 (Te nn. Crim. App. 1995).
In determining whether the State has met its burden, the trial court must consider a number of factors and must mak e factual findings. It should c onsider whether evidence in the record with rega rd to the victim’s ag e or physical and mental attributes demonstrated an i nability 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 v

ictim of sexual offense suffered from learning disability

); State v. Buckmeir , 902 S.W.2d 418 (Tenn. Crim. App. 1995)(factor proper wher e 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 proper ly applied where v

ictims of sexual acts were v

ery young, lacked family support, and looked to de fendant for friendship and approval). Such evidence, whether lay or expert testimony, must relate to the victim’s

physical or mental capac ity at the time of the crime an d not at the time of trial or sentenci ng. See State v. Raines , 882 S.W.2d 376 (Tenn. Crim. App. 1994)(court er red in applying factor based on its observations of victim’s “frail phy

sical stature” at some “ undetermined point in the past”) . The evidence need not be extensi ve and additional weig ht may be given to the age of the victim in those cases where a victim is extremely young or old. Nonetheless,-8- the State must prove the factor i s applicable and there must be ev idence in the record in addition to the v ictim’s age.

The dissent contends that our i nterpretation ignores the plain meaning of the statute, which it finds to be “plain, clear and unambi guous.” Yet the dissent , unable to hold that a 70-year -old person is particul arly vulnerable as a matter of law, offers no plain or cl ear guidance on when the factor applies or what ages will be presumed parti cularly vulnerabl e. Instead, to support its pr esumption, the dissent cites “age and circumstances ,” specifically obser ving that the victim lived alone, and speculating on the ap parent absence of home security systems or guard dogs. This interpretation, we believe, is far from a plain meaning or a bright-line test and w

ould likely yiel d more arbitrary and di sparate results than the analysis in Adams , which relates age with physical or mental limitations.
Moreover, because the Leg islature has stated that an enhan cement factor must be “appropriate for the offense,” the court must necessarily consider the nature of the offense and the manner in whi ch it was committed. For example, a perpetrator of a crime of viol ence may prey upon a different ty pe of vulnerability than would someone who commit ted 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 mai lbox). 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, th e defendant shot and killed an elderly woman. The Court of Criminal Appeals held that although the victim had a physical disabil ity and used a walki ng cane, the State failed to show that the victim’s vulnerability was a factor in the commission of the offense beca use no victim, regardle

ss of his or her physic

al or mental traits, coul d have resisted-9- the offense committed in that manner. In shor t, the court must consider al l of the facts and circumstances of the offense in dete rmining whether the par ticular vulnerability factor

is appropriate for the offense.

The dissent asserts that this statement is a “suspect prop osition” unsupported by authority . To the contrary, as w e have already discus

sed, the Legisl ature ha

s predi cated th e applic ation of any

enhancement factor on it being “approp riate fo r the off ense.” T enn. Cod e Ann. § 4 0-35-11 4. The ca ses we have cited from the Court of Cr iminal Appeals merely r ecognize this limit

ation expressed by the Legi slature.
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 relev ant consideration in the applicat ion of enhan cement fact ors -114(10), no hesitation in co mmitting a crime where risk to human life is high, or -114(16), offense committe d where potential for bodily inju ry to a victim w as 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 typ e of off ense com mitted b y the def endant. We do not hold nor do we believe otherwise. Yet given the inher ent ambiguity in attemptin g 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 v

itality. Thus, unless the State produces evidence of phy sical or mental limitations at the time of the offense, along with proof of the v ictim’s age, it cannot be presumed that the victim was particularly vulnerable based solely on-10- 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 appli ed the exceptional cruelty enhancement factor because the f acts used to establish this factor were the same facts used t o prove the serious bodil y injury element for especially aggravated robbery. The State maintains that the factor was properly applied because exceptional cruelty is not an element of especially aggrav ated robbery. Moreover, the State stresses that the de fendant’s actions constituting exceptional cruelty

were separate and disti nct from those necessary to c onstitute serious b odily inju ry.
As we have previ ously observed, enhancement factors must be “appropriate for the offense” and “not themselves essential element s of the offense.” Tenn. Code Ann. § 40-35-114. These l imitations exclude enhancement factors “based on facts w hich are used to prove the offense” or “[f]acts which establish the elements of the off ense charged.” State v. Jones , 883 S.W.2d at 601. The purpose of the limitations is t o 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 enhancem ent factors in Jones , supra . The defendant was charged w ith aggravated assaul

t for intentional ly, knowingly or recklessl

y causing

serious bod ily injur

y to the vi ctim, and the trial court enhanced the sentence after finding that the v ictim’s injuries were “particularl

y great.” Tenn. Code Ann.§ 40-35-114(6). We concluded that4 Serious bodi ly i njury r equires proof

of substanti al risk of death, prot racted unconsciousness, ext reme physical pain, prot racted or obvious disfi gurement, and prot racted loss or substanti al impairment of a functio n of a bodily member, organ, or mentalfaculty . Tenn. Code Ann. § 3 9-11-10 6(a)(33 ).

5 The Court of Criminal Appeals, although reachi ng a variet y of results, has used a similar anal

ysis i n determining whether the exceptional cruel ty fact or is appropriate for

an aggrav ated offe nse. See State v. Nix , 922 S.W.2d 894 (Tenn. Crim. App. 1995)(properl y appli ed 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 appli ed to aggravat ed kidnapping andespeciall y aggravat

ed robbery); State v. Carter , 908 S.W.2d 410 (Tenn. Crim. App. 1995)(properl y appli ed to aggravat ed 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. A pp. 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 appl ied where fact s supporting

exceptional

cruelty same as those that made the offense aggravated rape). -11- the conditions for proving the serious bodily i njury element 4 “satisfy the definition of a ‘par ticularly gr eat’ inju ry” and tha t “proof of seriou s bodily in jury will always constitute proof of a particularly great injury.” Id . at 602. Thus, we held that the “particularly g reat” injury enhancement fact or was inappropriate for the offense of aggravated assault.
Applying a similar

analysis to this cas

e, we first note that “ex ceptional cruelty” is not an el ement of especially aggr avated robbery. Tenn. Code Ann. § 39-13-403(a)(2)(1991). Moreover, we conclude that proof of serious bodily injury, which i s an element of especially ag gravated robbery, does not necessarily establi sh the enhancement factor of “excepti onal cruelty.” In other words, the facts in a case may support a finding of “ex ceptional cruelty” that “demonstrates a culpability distinct from and appreciably greater than that incident to” the crime of especially aggrav ated 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, apa rt from the elements of the offense, constituted ‘exceptional cruelty.’” State v. Godwin , 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995). 5-12- Here, the trial court made no findings to support its application of this factor. In holding that the factor was nonetheless appropri ate, the Court of Criminal Appeals said: This elderly woman w

as knocked unconscious by a blow to the head with a baseball bat. E ven though the defendants knew that the victim lived al one, they left her lying unconscious and bleeding under such circumstances that it was unlikely

that her condition would soon be discover ed. In fact, the victim remai ned in such a condition all night long

and was discovered b

y family members the next day. Because of the delay in receiving medic

al treatment, the victim is extremely fortunate to have survived this attack.
We agree that there was evidence of ex ceptional cruelty separ ate and apart from the actions which constituted the offense of especially aggravated robbery in this case. Accordingly , we agree the enhancement factor was properly appl ied.

CONCLUSION We have concluded that the State failed to prov e that the victim was “particularly v

ulnerable” pursuant to Tenn. Cod e 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 appli ed 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 of fense, 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., dissenti ng - see separate Diss enting Opinion-13-