                   IN THE SUPREME COURT OF TENNESSEE

                                    AT JACKSON




STATE OF TENNESSEE,                        )      FOR PUBLICATION
                                           )
       Appellant-Appellee,                 )      Filed: May 12, 1997
                                           )
v.                                         )      HARDEMAN CRIMINAL
                                           )
CHAD DOUGLAS POOLE,                        )       Hon. Jon Kerry Blackwood
                                           )          Judge
                                           )
       Appellee-Appellant.                 )
                                           )
                                           )      No. 02S01-9607-CC-00064
                                           )

                                                                      FILED
                                                                          May 12, 1997

                                                                      Cecil Crowson, Jr.
                               DISSENTING OPINION                      Appellate C ourt Clerk


       The Legislature has determined that the sentence for certain criminal

offenses 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) (1990 Repl. & Supp. 1996) (emphasis added). Ignoring the plain

language of the statute, the majority applies a judicial gloss and rules that the

enhancement factor does not apply unless the State shows two things: (1) a victim

of the offense was particularly vulnerable because of age and physical or mental

disability, and (2) the vulnerability of the victim was a factor in the commission of

the offense.   As a result, the majority concludes that the factor was erroneously

applied by the trial court in this case. The majority’s interpretation is contrary to

the plain language and express purpose of the sentencing statute and prior
decisions of this Court. For the reasons explained below, it is my view that the

trial court correctly applied the enhancement factor in this case. Therefore, I

dissent from the majority’s decision and would reverse the Court of Criminal

Appeals’ judgment reducing the defendant’s sentence.



                         STATUTORY INTERPRETATION

       The most basic principle of statutory construction is to ascertain and give

effect to legislative intent. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).

Legislative intent is to be ascertained whenever possible from the natural and

ordinary meaning of the language used, without forced or subtle construction that

would limit or extend the meaning of the language. Carson Creek Vacation

Resorts, Inc. v. State, Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993) (emphasis

added). If the legislative intent is expressed in a manner devoid of contradiction

and ambiguity, there is no room for interpretation or constructions, and courts are

not at liberty to depart from the words of the statute. Id. Where the language

contained within the four corners of a statute is plain, clear, and unambiguous, the

duty of the courts is simple and obvious, “to say sic lex scripta, and obey it.” Id.,

quoting Miller v. Childress, 21 Tenn. (2 Hum.) 319, 321-22 (1841).



       The language of the enhancement factor at issue in this case is plain, clear,

and unambiguous. The enhancement factor may be applied when the victim is

“particularly vulnerable because of age or physical or mental disability.”

(Emphasis added.) The statute is clearly written in the disjunctive and lists three

separate and independent factors which may support a finding of particular

vulnerability. Therefore, it is the duty of this Court to apply the straightforward

                                          -2-
language of the statute.



       Citing State v. Adams, 864 S.W.2d 31 (Tenn. 1993), and State v. Butler,

900 S.W.2d 305 (Tenn. Crim. App. 1994)(no perm. app. filed), the majority

ignores its duty, and in my opinion fails to follow the plain language of the statute.

The majority’s reliance upon Adams as support for its interpretation is misplaced.

Contrary to the majority’s analysis, Adams did not announce a principle which

limited the use of this enhancement factor. Indeed, in Adams we refused to limit

its application and recognized that particular vulnerability could be established by

any one of three separate and independent factors -- age or physical, or mental

disability.



       For example, in Adams the trial court had applied the particularly vulnerable

factor to enhance the defendant’s sentence for aggravated rape. The Court of

Criminal Appeals held that the trial court should not have applied that factor

because the age of the child was an essential element of the offense of which the

defendant had been convicted -- aggravated rape. See Adams, 864 S.W.2d at

33; Tenn. Code Ann. § 40-35-114(1990 Repl.)(enhancement factors may not be

applied if they are “themselves essential elements of the offense.”)



       The State sought and obtained permission to appeal. In this Court, the

defendant argued that the particularly vulnerable factor was automatically

unavailable to enhance a sentence when age was an essential element of the

underlying conviction offense. We rejected the defendant’s argument and instead

stated that the particularly vulnerable factor

                                          -3-
        can be used in an aggravated rape case 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.



Adams, 864 S.W.2d at 35. We instructed that the burden of proving the

limitations rendering the victim particularly vulnerable lies with the State and we

cautioned that appropriate application of the enhancement factor turns on the

specific facts of each case. Therefore, in Adams, we held that when age is an

essential element of the underlying conviction offense, the particularly vulnerable

enhancement factor is not appropriate unless it is also supported by proof of

mental or physical disability. 1



        While Adams was not expressly limited to cases wherein the defendant had

been convicted of an offense for which age was an essential element, it is

axiomatic that principles of law are circumscribed by the facts of the case in which

they are announced. Therefore, in my view, the principle announced in Adams

should be limited, as the State argues, to cases wherein age is an essential

element of the conviction offense.



        In addition to misapplying Adams, the majority decision erroneously holds

that the enhancement factor does not apply, even though the State proves that

the victim was particularly vulnerable, unless the State also establishes that the

victim’s vulnerability was a factor in the commission of the offense. Slip Op. at 8.


        1
          State v. Kissinger, 922 S.W.2d 482 (Tenn. 1996) does not support the majority’s decision
as it also applied the particularly vulnerable enhancement factor in the sentencing of a defendant
for aggr avated s exual ba ttery, an offen se of wh ich age w as an e ssential ele men t. Id. at 487.

                                                 -4-
As authority to support this proposition, the majority cite State v. Butler, 900

S.W.2d 305 (Tenn. Crim. App. 1994) (no perm. app. filed). Conspicuously absent

from the majority decision is a citation to the language of the enhancement factor

or any other authority. Moreover, an examination of Butler reveals that the Court

of Criminal Appeals adopted this suspect proposition without citing any authority,

statutory or otherwise.



        Requiring the State to prove that the victim’s vulnerability was a factor in

the commission of the offense is not only contrary to the plain language2 of the

statute, but it also defeats the express purpose of the sentencing statute which is

“to assure fair and consistent treatment of all defendants by eliminating unjustified

disparity in sentencing and providing a fair sense of predictability of the criminal

law and its sanctions.” Tenn. Code Ann. § 40-35-102(2) (1990 Repl. & Supp.

1996). No doubt, inconsistent and unpredictable sentences will follow this

decision as the bench and bar struggle to understand and apply the majority’s

version of the particularly vulnerable enhancement factor. For example, applying

the majority decision in which it held that “it is unlikely that any victim could have

resisted the crime, considering the manner in which it was committed,” it is difficult

to conceive of a scenario in which the particularly vulnerable enhancement factor

would apply when a gun is used in the accomplishment of a criminal offense. Slip




        2
           I agree with the majority that the “legislature has predicated the application of any
enhancement factor on it being ‘appropriate for the offense.’” However, rather than focusing on the
circumstances of the offense which establish the victim’s vulnerability, as the enhancement factor
requires, the majority’s interpretation of the enhancement factor requires courts to focus on the
defendant’s motivation in committing the offense and allows application of the enhancement factor
only if the victim ’s vulnerab ility influenced the defend ant’s dec ision to com mit the o ffense .

                                                -5-
Op. at 9.3 This is only one example of the peculiar outcomes likely to follow the

majority’s decision.



         In my view, it is the duty of this Court to apply the particularly vulnerable

enhancement factor in accordance with the straightforward language of the

statute. In this case, the plain language of the statute fully supports application of

the enhancement factor. The victim in this case was a seventy year old woman,

who lived alone and ran a small grocery store. It was commonly known in the

community that she carried large sums of money on her person. There is nothing

to indicate that she had any type of home security system or guard dog. The plain

language of the particularly vulnerable enhancement factor evidences the General

Assembly’s recognition that the age of a person directly correlates to a person’s

vulnerability. In my view, considering the age of the victim and the circumstances

of the victim,4 the trial court appropriately found that the victim was particularly

vulnerable because of age. I realize it is possible to imagine circumstances in

which application of this enhancement factor would be inappropriate even if the

victim is a seventy year old woman. For example, if the victim in this case had

greeted her assailants with a loaded shotgun, the State would have been hard

pressed to prove that she was particularly vulnerable. However, in my view, it is



         3
         The ma jority dis mis ses as un foun ded , “the d isse nt’s fe ar” th at the partic ularly v ulner able
enhancem ent factor may never be use d where the defendan t uses a gun and says that the use of a
gun or other deadly weapon is a separate basis for enhancement and is relevant to two other
enhancement factors. The majority’s statement reinforces the basis on which I disagree. While the
use of a gun is relevant to some other enhancement factors, it is not relevant to, nor should it be
considered, by courts applying the particularly vulnerable enhancem ent factor.

         4
           I disagree with the majority’s assertion that consideration of the circumstances of the
victim, in ad dition to the victim ’s age, is no t proper u nder a p lain langua ge app lication of the statute.
It is the spec ific vic tim’s circu ms tanc es w hich mu st be cons idere d to d eterm ine if th e victim is
particularly vulnerable because of age.

                                                      -6-
the age and circumstances of the victim which are relevant to determining the

applicability of this enhancement factor, not the motivation of the defendant who

commits the offense.



       I respectfully dissent from the majority’s decision and would reverse the

Court of Criminal Appeals’ judgment reducing the defendant’s sentence and affirm

the trial court’s application of the particularly vulnerable enhancement factor.




                                          ______________________________
                                          FRANK F. DROWOTA III,
                                          JUSTICE




                                         -7-
