           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                           NOVEMBER SESSION, 1995
                                                                 FILED
                                                             March 13, 1996
STATE OF TENNESSEE,                )     C.C.A. NO. 02C01-9506-CC-00178
                                   )
                                                                Cecil Crowson, Jr.
         Appellee,                 )                             Appellate Court Clerk
                                   )
                                   )     HARDEMAN COUNTY
VS.                                )
                                   )     HON. JON KERRY BLACKSOOD
CHAD DOUGLAS POOLE,                )     JUDGE
                                   )
         Appellant.                )     (Sentencing)



               OPINION ON PETITION TO REHEAR

         The State of Tennessee has filed a petition to rehear requesting that this

court reconsider our opinion on the grounds that we have misapprehended a

material proposition of law. In our opinion, we held that for purposes of sentence

enhancement, proof that the victim of the robbery was seventy-one years old was

not “sufficient in and of itself to show particular vulnerability.” We stated that the

Tennessee Supreme Court has held that the vulnerability enhancement relates

more to the natural physical and mental limitations of the victim than merely to

the victim’s age. W e relied on State v. Adams, 864 S.W.2d 31 (Tenn. 1993).



         In the petition to rehear, the State argues that our holding is based on an

erroneous reading of Adams. The State argues that the holding in Adams

concerning the vulnerability enhancement factor should be strictly limited in its

application to a crime in which the age of the victim is an essential element of the

crime.
      In Adams, the Defendant had been convicted of aggravated rape. One of

the elements which elevated the crime to aggravated rape was that the victim

was less than thirteen years of age. The Supreme Court specifically held that

although the victim being under the age of thirteen was an essential element of

the aggravated rape, the trial judge was not precluded as a matter of law from

enhancing the punishment based upon the victim being particularly vulnerable

because of age, provided the State met its burden of proving the victim’s

limitations rendering him or her particularly vulnerable, “i.e., incapable of

resisting, summoning help, or testifying against the perpetrator.” Even though

one of the victims in Adams was four years old, the Supreme Court held that

proof of the age of the victim was not sufficient proof to show “particular

vulnerability.” 864 S.W .2d 31-35.



      W e have carefully considered the State’s argument in its petition to rehear.

W e do not believe that Adams can be read as applying only to crimes in which

the age of the victim is an element of the offense. The enhancement factor is not

applicable if the victim is particularly young or particularly old. The enhancement

factor applies when the victim of the offense was particularly vulnerable because

of age or physical or mental disability. The State bears the burden of proving any

enhancement factor upon which it relies to enhance a sentence. In the case sub

judice, the victim was seventy-one years old. She may have been “particularly

vulnerable” because of her age. W e cannot conclude that every seventy-one-

year-old person is “particularly vulnerable” because of age.       In Adams, the

Supreme Court held that proof that the victim of a sexual assault was four years

old was not proof, in and of itself, of “particular vulnerability” because of age.




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Most four-year-old children are more vulnerable because of age than are most

seventy-one-year-old adults.



       As emphasized by the concurring opinions filed herein, Adams appears to

require the State to prove “particular vulnerability because of age,” even if the

proof shows that the victim is one year old or ninety-four years old. Although the

concurring opinions suggest that trial judges should be able to use common

sense in determining particular vulnerability of our state’s most youthful citizens

and our state’s most elderly citizens, Adams does not seem to allow proof of age

standing alone to ever satisfy the State’s burden of proving particular

vulnerability.



       The State’s petition to rehear is denied.



                                 Per Curiam

                                 W elles, Summers, Barker




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