State v. LewisState v. Lewis
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OPINION
JANICE M. HOLDER, J„delivered the opinion of the court, in which
E. RILEY ANDERSON, C.J., and FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, Jr., and WILLIAM M. BARKER, JJ„ joined.
We granted review of this case to decide whether the “particularly vulnerable victim” enhancement factor,
BACKGROUND
Roger Dale Lewis was a resident of Cheryl Apartments in Hendersonville, Tennessee. In May 1992, Lewis was asked to move for failing to pay rent. Lewis threatened retaliation against the landlord. Around 3:00 a.m. on June 5, 1992, Lewis set fee to his residence at Cheryl Apartments. Five apartments were destroyed. All tenants were evacuated safely.
Lewis was convicted of five counts of aggravated arson. He received fifteen-year sentences on each count, two of which were ordered to run consecutively, for an effective sentence of thirty years. On appeal, this Court reversed four of those convictions on double jeopardy grounds and remanded for resentencing. See State v. Lewis, 958 S.W.2d 736 (Tenn.1997).
On resentencing, the trial court found three enhancement factors. Two
1
of the enhancement factors are relevant to this appeal: 1) “A victim of the offense was particularly vulnerable because of age or physical or mental disability”; and 2) “The defendant had no hesitation about committing a crime when the risk to hmnan life was high.”
In
State v. Poole,
945 S.W.2d 93, 95-96 (Tenn.1997), we related that
In arriving at the sentence, the trial court identified the mitigating and enhancement factors, stated the specific facts supporting the enhancement factors, and articulated how the mitigating and enhancement factors were evaluated and balanced in determining the sentence. Accordingly, our review of Lewis’s sentence is de novo with a presumption of correctness of the trial court’s determinations. Poole, 945 S.W.2d at 96; Jones, 883 S.W.2d at 601; see also TenmCode Ann. § 40-35-210.
Tennessee Code Ann.
In Poole, we noted that the Court of Criminal Appeals held in Butler that the “particularly vulnerable” enhancement factor was inappropriate because “the State failed to show that the victim’s vulnerability was a factor in the commission of the offense .” Poole, 945 S.W.2d at 97. Lewis contends this language requires the State to prove that he targeted these victims for arson because of their vulnerabilities. Under Lewis’s view “factor” is synonymous with “motivation.” Accord Poole, 945 S.W.2d at 101 & n. 2 (Drowota, J., dissenting). Our opinion in Poole, however, does not support this construction.
In Poole, we cited Butler for the following proposition: “Similarly, the offense may be committed in such a manner as to make the victim’s vulnerability irrelevant.” Id. at 97. Poole further clarified that the victim’s vulnerability in Butler was not a “factor in the commission of the offense” because there was no connection between the vulnerability and the crime committed:
[T]he State failed to show that the victim’s vulnerability was a factor in the commission of the offense because no victim, regardless of his or her physical or mental traits, could have resisted the offense committed in that manner.
Id.
(emphasis added).
Butler
is, therefore, a case in which the victim’s vulnerability was
irrelevant
to the crime committed.
See also State v. Walton,
958 S.W.2d 724, 729 (Tenn.1997) (remanding to trial court to consider “whether the offense was committed in such a manner as to render the vulnerability of the victim irrelevant”);
State v. Seals,
735 S.W.2d 849, 853-54 (Tenn.Crim.App.1987) (holding
A victim’s age or physical condition might make the victim “vulnerable” in a general sense. That particular vulnerability, however, may play no part in the crime. A vulnerability that is wholly irrelevant to the crime is not “appropriate for the offense” as required by
Whether a victim is “particularly vulnerable” for purposes of
The evidence showed that seven of the victims in this case were children: Renee Scalfs five-year-old and eleven-month-old children; Teresa Rumage’s nine-, twelve-, and fifteen-year-old children; Denise Threat’s thirteen-month-old child; and an unnamed baby who was Ms. Threat’s niece. Some of these victims were infants. A victim’s youth does not necessarily equate with vulnerability, however. Poole, 945 S.W.2d at 96; Adams, 864 S.W.2d at 35. The State is required to proffer evidence in addition to the victim’s age to establish particular vulnerability; however, that evidence “need not be extensive.” Poole, 945 S.W.2d at 97. Also, a court may consider the natural vulnerabilities attendant to the extreme ends of the aging spectrum by giving “additional weight ... to the age of the victim in those cases where a victim is extremely young or old.” Id.
We find the record contains sufficient evidence in addition to the age of the victims to support the
Tennessee Code Ann.
The Court of Criminal Appeals held that the
There was no evidence in this case to support a finding that the lives of police and ambulance personnel were put at risk. Our review of the record shows no mention of police or ambulance involvement at the scene of the fire as the building burned. Police were involved only in the initial 911 call and the post-fire investigation. Potential risk to the lives of these uninvolved emergency personnel is, therefore, in this case an inadequate basis for enhancement under
The record in this case, however, clearly supports a finding that the lives of the firefighters who arrived at the scene in fact were put at risk. The firefighters arrived within a few minutes after a 911 call to police reporting the fire. A fire marshall testified that upon his arrival “there was heavy fire” in the second story of the building. A firefighter informed the fire marshall immediately upon his arrival that “the apartments had already been
Although not addressed by the Court of Criminal Appeals, the
The aggravated arson statute, however, does not take into account that the commission of arson may result in multiple deaths. Arson is elevated to aggravated arson merely by the presence of a single person in the structure. Once that fact is established, evidence that more than one life was at risk “demonstrate[s] a culpability distinct from and appreciably greater than that incident to the offense for which he was convicted.”
Jones,
883 S.W.2d at 603;
cf. State v. Kelley,
34 S.W.3d 471, 480 (Tenn.Crim.App.2000) (permitting
Consequently, the
We find that multiple-resident aggravated arson is the very type of crime to which the legislature intended the
Tennessee Code Ann.
Tennessee courts have recognized that a person or entity is a “victim” under
As stated above, aggravated arson requires but one person to be present in the structure. Indeed, an aggravated arson can occur in the absence of a “victim” as defined above. Only a person’s presence is required. There is no requirement of injury or death to the person who is present, and there is no requirement that property actually be destroyed. Therefore, none of the facts used to establish the essential elements of aggravated arson are used to estabhsh the multiple victim enhancement factor.
We find the “multiple victim” enhancement factor to be appropriate for this offense. Use of the “multiple victim” enhancement factor is well-suited to the aggravated arson statute, which does not permit multiple convictions in spite of the fact that multiple persons were victimized by the fire. While Lewis could not be convicted of multiple counts of aggravated arson, see Lewis, 958 S.W.2d at 739, his sentence may reflect that he victimized multiple persons.
CONCLUSION
We hold that the “particularly vulnerable victim” enhancement factor,
Notes
. Lewis concedes the applicability of the third enhancement factor that “the personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly great.”
. Certainly, evidence that the defendant evaluated the victim’s vulnerabilities and then acted intending to capitalize on those perceived vulnerabilities would satisfy