            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
