         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 14, 2004

                      STATE OF TENNESSEE v. LAMAR ROSS

                   Direct Appeal from the Criminal Court for Shelby County
                           No. 02-08113    Joseph B. Dailey, Judge



                  No. W2003-02823-CCA-R3-CD - Filed November 22, 2004



GARY R. WADE, P.J., concurring and dissenting.

         I write separately because, in my view, Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531
(2004), precludes the application of enhancement factor (5). While I agree with the majority that the
jury's verdict in count two necessarily includes a finding that the victim is mentally defective, the
verdict does not include a finding that the victim was particularly vulnerable because of his mental
disability, which is required by the statute. See Tenn. Code Ann. § 40-35-114(5) (2003). Our
supreme court has held that factor (5) may be used only "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." State v. Adams, 864 S.W.2d 31,
35 (Tenn. 1993). In my view, the verdict of the jury does not necessarily reflect that fact. In
consequence, factor (5) would not be applicable under the rule established in Blakely. Because only
one enhancement factor remains, I would have modified the sentence to twenty-one years, one year
above the presumptive sentence.


                                                         ___________________________________
                                                         GARY R. WADE, PRESIDING JUDGE
