STATE оf Tennessee, Appellant/Appellee, v. Chad Douglas POOLE, Appellee/Appellant.
Supreme Court of Tennessee, at Jackson.
May 12, 1997.
945 S.W.2d 93
The Court of Criminal Appeals decided that the trial court did not err by applying the “exceptionally cruel” factor to the especially aggravated robbery conviction, but did err in applying the “particularly vulnerable” factor because the State must prove more than the victim‘s age to prove a victim is “particularly vulnerable.” We agree. We, therefоre, affirm the Court of Criminal Appeals’ judgment.
John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kathy Morante, Deputy Attorney General, Nashville; Elizabeth Rice, District Attorney General, Jerry Norwood, Assistant District Attorney, Somerville (at Trial), for Appellant/Appellee.
Gary Antrican, Public Defender, Jeannie Kaess, Assistant Public Defender, Somerville; C. Michael Robbins, Assistant Public Defender (at Trial), for Appellee/Appellant.
OPINION
ANDERSON, Justice.
We granted this appeal to determine whether the trial court properly applied two
A presentence report indicated that the defendant Poole was 21 years of age at the time of sentencing. He had quit school following the ninth grade, was a heavy user of marijuana, and had no history of steady employment. The report also indicated that the defendant had prior convictions for burglary, burglary of an automobile, and two counts of theft.
The defendant tеstified that although he initially “didn‘t want to be a part” of the robbery, he knew the co-defendant planned to hit the victim with the baseball bat. He also testified that they used the money stolen from the victim to buy marijuana. A letter from a psychologist who evaluated Poole while in jail noted that the defendant was “a non-assertive follower who can easily be influenced or intimidated by his peers.”
In imposing the 21-year sentence for especially aggravated robbery, the trial court applied four enhancement factors: the defendant‘s prior history of criminal convictions and behavior,
On appeal, the Court of Criminal Appeals held that the trial court properly applied factors -114(1), criminal history, and (5), exceptional cruelty, but erred in applying factors -114(4), particularly vulnerable, and (7), desire for pleasure. The State concedes that the Court of Criminal Appeals correctly found that the trial court erred in applying the factor—desire for pleasure or excitement, and the defendant concedes that the lower courts properly applied the factor—prior history of criminal convictions and behavior. The Court reduced the punishment from 21 to 19 years in light of the inappropriate enhancement factors. We granted this appeal to address the State‘s contention that “particular vulnerability” was a proper enhancement factor and the defendant‘s argument that “exceptional cruelty” was not a proper enhancement factor.
SENTENCING ACT OF 1989
In imposing a sentence pursuant to the Sentencing Act of 1989, the trial court first must determine the applicable range of punishment based on the severity of the offense and the defendant‘s prior criminal convictions. These statutory classifications, as well as the applicable ranges of punishment, are established by the Legislature. See
After determining the applicable range of punishment, the court must presume that the minimum sentence in the applicable range is the presumptive sentence to be imposed. If there are enhancement factors but no mitigating factors in the record, the court may “set the sentence above the minimum in that range but still within the range.” If enhancement and mitigating factors are in the record, the trial court “must start at the minimum sentence in the range, enhance the sentence within the range as appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors.” See
Only those enhancement factors authorized by the Legislature in
PARTICULAR VULNERABILITY
The State argues that the trial court properly enhanced the defendant‘s sentence because the 70-year-old victim was “particularly vulnerable.” The defendant maintains that the Court of Criminal Appeals correctly held that there was no evidence in the record to show that this victim was particularly vulnerable.
The Legislature has determined that a sentence may be enhanced if “a victim of the offense was particularly vulnerable because of age or physical or mental disability....”
[T]he vulnerability enhancement relates more to the natural physical and mental limitations of the victim than merely to the victim‘s age.... 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.
(Emphasis added; citations omitted). We stressed that the determination of whether the factor applied was a “factual issue to be resolved by the trier of fact on a case by case basis.” Similarly, in State v. Kissinger, 922 S.W.2d 482, 487 (Tenn.1996), we again linked the vulnerability to proof of a mental or physical limitation that created an “inability to resist, a difficulty in calling for help, or a difficulty in testifying against the perpetrator.”
Although it is not difficult to imagine cases in which the victim‘s age, whether very young or very old, may seem to equate with vulnerability, we chose in Adams not to presume such a conclusion in any case.3 Moreover, because
In determining whether the State has met its burden, the trial court must consider a number of factors and must make factual findings. It should consider whether evidence in the record with regard to the victim‘s age or physical and mental attributes demonstrated an inability to resist the crime, summon help, or testify at a later date. See e.g., State v. Clabo, 905 S.W.2d 197 (Tenn.Crim.App.1995) (factor properly applied where child victim of sexual offense suffered from learning disability);
The dissent contends that our interpretation ignores the plain meaning of the statute, which it finds to be “plain, clear and unambiguous.” Yet the dissent, unable to hold that a 70-year-old person is particularly vulnerable as a matter of law, offers no plain or clear guidance on when the factor applies or what ages will be presumed particularly vulnerable. Instead, to support its presumption, the dissent cites “age and circumstances,” specifically observing that the victim lived alone, and speculating on the apparent absence of home security systems or guard dogs. This interpretation, we believe, is far from a plain meaning or a bright-line test and would likely yield more arbitrary and disparate results than the analysis in Adams, which relates age with physical or mental limitations.
Moreover, because the Legislature has stated that an enhancement factor must be “appropriate for the offense,” the court must necessarily consider the nature of the offense and the manner in which it was committed. For example, a perpetrator of a crime of violence may prey upon a different type of vulnerability than would someone who committed crimes of misrepresentation or fraud. Thus, a victim with a severe physical disability may not be particularly vulnerable to bribery or theft. See State v. Seals, 735 S.W.2d 849, 853 (Tenn.Crim.App.1987) (elderly, infirm victim not particularly vulnerable where defendant stole checks from victim‘s mailbox). Similarly, the offense may be committed in such a manner as to make the victim‘s vulnerability irrelevant. In State v. Butler, 900 S.W.2d 305 (Tenn.Crim.App.1994), for example, the defendant shot and killed an elderly woman. The Court of Criminal Appeals held that although the victim had a physical disability and used a walking cane, the 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 physicаl or mental traits, could have resisted the offense committed in that manner. In short, the court must consider all of the facts and circumstances of the offense in determining whether the particular vulnerability factor is appropriate for the offense.
The dissent asserts that this statement is a “suspect proposition” unsupported by authority. To the contrary, as we have already discussed, the Legislature has predicated the application of any enhancement factor on it being “appropriate for the offense.”
Moreover, the dissent‘s fear that -114(4) may never be used to enhance where the defendant uses a gun is unfounded. The use of a gun or other deadly weapon, if not an element of the offense, is a separate basis for enhancement under
In applying these factors to this case, we note that the trial court made no findings of fact beyond its mere recitation that the victim was particularly vulnerable. Without question, this 70-year-old victim living alone
EXCEPTIONAL CRUELTY
The defendant argues that the trial court should not have applied the exceptional cruelty enhancement factor because the facts used to establish this factor were the same facts used to prove the serious bodily injury element for especially aggravated robbery. The State maintains that the factor was properly applied because exceptional cruelty is not an element of especially aggravated robbery. Moreover, the State stresses that the defendant‘s actions constituting exceptional cruelty were separate and distinct from those necessary to constitute serious bodily injury.
As we have previously observed, enhancement factors must be “appropriate for the offense” and “not themselves essential elements of the offense.”
We recognized these limitations in analyzing the enhancement factors in Jones, supra. The defendant was charged with aggravated assault for intentionally, knowingly or recklessly causing serious bodily injury to the victim, and the trial court enhanced the sentence after finding that the victim‘s injuries were “particularly great.”
Applying a similar analysis to this case, we first note that “exceptional cruelty” is not an element of especially aggravated robbery.
As the Court of Criminal Appeals has explained, the “trial court should state what actions of the defendant, apart from the elements of the offense, constituted ‘exceptional cruelty.‘” State v. Goodwin, 909 S.W.2d 35, 45 (Tenn.Crim.App.1995).5
This elderly woman was knocked unconscious by a blow to the head with a baseball bat. Even though the defendants knew that the victim lived alone, they left her lying unconscious and bleeding under such circumstances that it was unlikely that her condition would soon be discovered. In fact, the victim remained in such a condition all night long and was discovered by family members the next day. Because of the delay in receiving medical treatment, the victim is extremely fortunate to have survived this attack.
We agree that there was evidence of exceptional cruelty separate and apart from the actions which constituted the offense of especially aggravated robbery in this case. Accordingly, we agree the enhancement factor was properly applied.
CONCLUSION
We have concluded that the State failed to prove that the victim was “particularly vulnerable” pursuant to
BIRCH, C.J., and REID, J., concur.
DROWOTA, J., dissents with separate opinion.
DROWOTA, Justice, dissenting.
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....”
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
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 disjunсtive 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 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;
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
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 vulnerаble,’ 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 wаs 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 vulnerаble, unless the State also establishes that the victim‘s vulnerability was a factor in the commission of the offense. Op. at 97. 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
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.”
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 yеar 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 vulnerablе 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 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.