              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                        AT JACKSON                 FILED
                                NOVEMBER 1995 SESSION
                                                                    January 31, 1996

STATE OF TENNESSEE,                         )                   Cecil Crowson, Jr.
                                                   NO. 02C01-9506-CC-00178
                                                                   Appellate Court Clerk
                                            )
       Appellee                             )      HARDEMAN COUNTY
                                            )
V.                                          )      HON. JON KERRY BLACKWOOD
                                            )      JUDGE
CHAD DOUGLAS POOLE,                         )
                                            )       (Sentencing)
     Appellant                              )



                                  CONCURRING OPINION

         Like Judge Summers, I fully agree with the conclusion and rationale

expressed in the opinion written by Judge Welles. Based upon the record in this case

and our Supreme Court's opinion in State v. Adams, 864 S.W.2d 31 (Tenn. 1993), the

"particularly vulnerable" enhancement factor was not shown to be applicable in this

case. In State v. Adams, Justice Drowota, writing for a unanimous Court, stated:

                 The factor can be used . . . 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, at 35.

         As pointed out by Judge Summers, the youngest victim in Adams was four

years old, but the Court found that the child's age, standing alone, was insufficient

evidence of his being "particularly vulnerable."

         In the present case, the victim was a seventy-one-year-old female and her

assailant was assisted by the appellant, a twenty-one-year-old male. The elderly

victim was attacked with a baseball bat by surprise when she entered her home and

found the appellant and his co-defendant lying in wait for her.

         Perhaps our Supreme Court will take this opportunity to furnish guidance for

lower courts and the bar in properly applying State v. Adams in the future.
WILLIAM M. BARKER, JUDGE




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