State of Tennessee v. Derious Grandberry

07/07/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 31, 2021

STATE OF TENNESSEE v. DERIOUS GRANDBERRY

Appeal from the Criminal Court for Shelby County

No. 17-00443 John Wheeler Campbell, Judge

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No. W2019-01872-CCA-R3-CD

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The Defendant, Derious Grandberry, was convicted at trial of carjacking and aggravated

robbery. He received an effective sentence of twenty years in confinement. On appeal,

the Defendant argues that the evidence was insufficient to convict him of the offenses,

that the trial court erred by failing to weigh the evidence itself as the thirteenth juror, that

the trial court erred in allowing the State to admit the victim’s photographic lineup

identification of him into evidence, and that the trial court abused its discretion by

imposing the maximum sentence. After review, we affirm the trial court’s judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Robert Golder (on appeal), and John Dolan (at trial), Memphis, Tennessee, for the

appellant, Derious Grandberry.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Jamie Kidd, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant was convicted of robbing the victim, Mr. Thomas Beabout, outside

of his Shelby County residence and stealing his vehicle. The trial evidence showed that

the victim arrived at his residence at approximately 9:00 p.m. on September 14, 2016, at

which time he noticed a man watching him from behind a dumpster in his neighbor’s

yard. The victim exited his vehicle and asked, “What are you doing?” Two men

approached the victim, one from the front and one from the rear, and demanded his

possessions. The man who approached from the rear told the other man to kill the victim

if the victim said anything.

The victim identified the Defendant as the man who approached him from the

front in a photographic lineup, and he identified another individual as being involved in a

separate photographic lineup. At trial, when the victim was asked whether he could

identify the Defendant in the courtroom, the victim replied, “No, not right now.” The

prosecution asked the victim to look again, and the victim replied, “Yes, that gentleman

in the blue shirt looks familiar,” identifying the Defendant. The Defendant objected on

the ground that the additional probing by the State was inappropriate, and the prosecutor

explained that she asked the additional question because she saw that the witness was not

looking in the Defendant’s direction. The trial court overruled the Defendant’s objection.

After the bench conference, the State asked if the individual the victim identified was one

of the people who robbed him that night, and the victim responded affirmatively. On

cross-examination, the victim explained that he at first could not identify the Defendant at

trial because his view of the Defendant was obstructed.

The State then questioned the victim about an identification he made of the

Defendant in a photographic lineup after the robbery. The victim testified that a few days

after the robbery, a detective provided him with a photographic lineup. The victim

testified that he identified an individual in the photographic lineup and that he marked the

individual on the document. The Defendant objected, arguing that there was no

foundation for the questioning and that the evidence was hearsay because it contained the

following statement at the bottom of the page:

Who: No.

What: Had a gun pointed at me[.] Told me to give him everything.

The trial court overruled the Defendant’s foundation objection and concluded that the

victim could testify about the document if he identified it. The parties proceeded by

covering the statement at the bottom of the document when presenting it to the jury and

providing a redacted copy at a later time. The victim confirmed that the document

presented to him at trial was the photographic lineup he saw five days after the crime,

that he initialed it, that he circled a photograph in the array, and that nobody told him

which photograph to circle. The victim testified that he did not know the Defendant and

had never seen him prior to the robbery.

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According to the victim, it appeared that the Defendant wielded a gun during the

robbery. The Defendant took the victim’s driver’s license and $250 in cash from the

victim’s pockets. The individuals then drove away in the victim’s vehicle. The victim

testified that he never got “a good . . . [look] at” the second man and did not see whether

he had a gun, but the victim believed the other man had a gun based on the man’s

instructions to the Defendant to kill him if he said anything. On cross-examination, the

victim stated that he informed law enforcement in a statement that one of the men

possessed a gun. The victim described the statement as incomplete but truthful and

indicated that he left out information about the man other than the Defendant. The victim

testified that he informed law enforcement that both the Defendant and the other man had

guns in an initial report. The victim agreed he told someone that the Defendant had short,

curly dreadlocks. When asked on cross-examination, “Are those short curly dreadlocks

on that man you have identified,” the victim replied, “I don’t know.”

According to the victim, his mother received a telephone call a few hours after the

incident informing her that the police had recovered his vehicle. The victim noticed that

his vehicle had a dent in it that was not there before the crime and that the front end was

loose. The victim testified that approximately $100 in change was missing from the

vehicle. On cross-examination, he agreed that he had testified in a separate hearing that

the bag contained about $40 or $50 in change. The victim explained that he was sure the

amount was more than that and that the lower estimate given in his prior testimony was a

“light guess.”

Memphis Police Department (“MPD”) Officer Patrick Meads began looking for

the stolen vehicle on September 14, 2016, while on patrol after receiving information

from dispatch. Officer Meads located the vehicle at around 11:00 p.m., 5.6 miles away

from the victim’s residence and 0.8 mile away from an address associated with the

Defendant. Officer Meads’s bodycam recorded his discovery of the vehicle. An

inspection of the vehicle revealed that the keys were in the ignition and that the vehicle

was still running. Officer Meads called for a tow company and notified dispatch and an

officer from a neighboring precinct. On cross-examination, Officer Meads testified that

the vehicle had not been reported stolen on a national database for stolen vehicles used by

the MPD when he located the vehicle. He testified that he did not approach the residence

in front of which the vehicle was parked out of concern for his safety. Officer Meads

agreed that it was possible his bodycam video did not reflect the accurate date or time.

MPD Officer Adam Pickering processed the vehicle at the city lot, where he

photographed the vehicle and dusted its exterior for fingerprints. He found a partial palm

print on the outside of the front passenger door. MPD Latent Prints Unit Officer Nathan

Gathright examined the palm print taken from the stolen vehicle and found that it

matched Shelby County Sheriff’s Office number 418038, a number the parties stipulated

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as identifying fingerprint evidence associated with the Defendant. On cross-examination,

Officer Gathright testified that the minimum number of matching points allowed for a

positive identification by his department was seven and that he stopped counting when he

reached twenty-four matching points.

The jury found the Defendant guilty of carjacking and aggravated robbery, and it

found the Defendant not guilty of employing a firearm during the commission of or

attempt to commit a dangerous felony. The trial court sentenced the Defendant as a

Range II offender to concurrent terms of twenty years for each conviction. The

Defendant filed a motion for new trial, which was denied by the trial court following a

hearing. This appeal followed.

ANALYSIS

I. Sufficiency of the Evidence

The Defendant contends the evidence was insufficient to support his convictions

for carjacking and aggravated robbery. Reviewing the sufficiency of the evidence

supporting a criminal conviction requires this court to first “examine the relevant

statute(s) in order to determine the elements that the State must prove to establish the

offense.” State v. Stephens, 521 S.W.3d 718, 723 (Tenn. 2017). Next, we determine

“‘whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Id. at 724 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

If the evidence is insufficient to support the finding of guilt beyond a reasonable doubt,

the finding of guilt “shall be set aside.” Tenn. R. App. P. 13(e). Once a defendant has

been convicted, the presumption of innocence is replaced with a presumption of guilt on

appeal. Turner v. State, 394 S.W.2d 635, 637 (Tenn. 1965). To overcome a presumption

of guilt on appeal, the defendant bears the burden of showing the evidence presented at

trial was “insufficient for a rational trier of fact to find guilt of the defendant beyond a

reasonable doubt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982) (citing State v.

Patton, 593 S.W.2d 913 (Tenn. 1979)).

On appeal, the State “is entitled to the strongest legitimate view of the trial

evidence and all reasonable and legitimate inferences which may be drawn from the

evidence.” State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003) (citing State v. Carruthers,

35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999);

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). This court may not reweigh or

reevaluate the evidence, because “[q]uestions about the credibility of witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact.” Id. at 236 (citing Bland, 958 S.W.2d at 659). After a guilty

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verdict has been entered, the testimony of the State’s witnesses is accredited, and all

conflicts in the testimony are resolved in favor of the theory of the State. State v.

Nichols, 24 S.W.3d 297, 301 (Tenn. 2000) (citing State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973)).

A defendant’s guilt may be supported by direct evidence, circumstantial evidence,

or a combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343

S.W.2d 895, 897 (Tenn. 1961)). Whether the evidence underlying the defendant’s

conviction at trial was direct or circumstantial, the same standard of review applies. State

v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265,

275 (Tenn. 2009)).

Carjacking is “the intentional or knowing taking of a motor vehicle from the

possession of another by use of” force or intimidation. T.C.A. § 39-13-404(a). In the

context of this case, aggravated robbery is “the intentional or knowing theft of property

from the person of another by violence or putting the person in fear,” see T.C.A. § 39-13-

401(a), that is “[a]ccomplished with a deadly weapon or by display of any article used or

fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. §

39-13-402(a)(1).

The Defendant challenges the sufficiency of the evidence in part by arguing that

the evidence failed to establish his identity as one of the perpetrators. Identity is an

essential element of every crime, State v. Bell, 512 S.W.3d 167, 198 (Tenn. 2015), and it

is a question of fact for the jury. Id. (citing State v. Thomas, 158 S.W.3d 361, 388 (Tenn.

2005). To resolve questions of fact, including the identity of the perpetrator, “‘the jury

bears the responsibility of evaluating the conflicting evidence and accrediting the

testimony of the most plausible witnesses.’” State v. Pope, 427 S.W.3d 363, 369 (Tenn.

2013) (quoting State v. Hornsby, 858 S.W.2d 892, 897 (Tenn. 1993)). Circumstantial

evidence may establish a perpetrator’s identity. See Bell, 512 S.W.3d at 198-99.

When viewed in the light most favorable to the State, the evidence was sufficient

to support the Defendant’s convictions for carjacking and aggravated robbery. On

September 14, 2016, when the victim arrived at his residence, he noticed a man observing

him from behind a dumpster in his neighbor’s yard. The victim exited the vehicle, and

the Defendant approached him from the front while another man approached him from

behind. The Defendant wielded what appeared to be a gun, demanded the victim’s

belongings, and then took the victim’s driver’s license and $250 in cash from the victim’s

pockets. The Defendant and his accomplice stole the victim’s vehicle and cash in the

form of change that was inside the vehicle. The victim identified the Defendant as the

man who approached him from the front in a photographic lineup. Law enforcement

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found the vehicle parked but still running 0.8 mile from an address associated with the

Defendant and discovered the Defendant’s palm print on the vehicle. This evidence

supports the Defendant’s identity as one of the men who robbed the victim and stole his

vehicle. See Bell, 512 S.W.3d at 198.

The Defendant lodges several other arguments attacking the sufficiency of the

evidence, namely, that the victim’s testimony was not credible, that the victim’s

testimony should be disregarded by application of the rule of cancellation, and that the

evidence presented at trial was merely circumstantial. The Defendant challenges the

credibility of the victim’s testimony regarding his identification of the Defendant, the

amount of change that was stolen from his vehicle, and whether one or two of the robbers

had guns. However, the issue of the victim’s credibility was resolved by the jury at trial,

and we do not reweigh it on appeal. See Evans, 108 S.W.3d at 237; Nichols, 24 S.W.3d

at 301.

Regarding the rule of cancellation, Tennessee courts have recognized that

“‘contradictory[,] sworn statements made by a witness as to the same fact can cancel each

other out.’” State v. Doyle Wayne Mason, Jr., No. E2019-00174-CCA-R3-CD, 2020 WL

5015903, at *25 (Tenn. Crim. App. Aug. 25, 2020), perm. app. denied (Tenn. Jan. 14,

2021) (quoting State v. Caldwell, 977 S.W.2d 110, 118 (Tenn. Crim. App. 1997)). Thus,

the rule of cancellation “addresses circumstances in which ‘the proof of a fact lies wholly

with one witness, and he both affirms and denies it,’ resulting in no ‘evidence at all to

prove the fact.’” Id. (quoting State v. Matthews, 888 S.W.2d 446, 449-50 (Tenn. Crim.

App. 1993)). This rule only applies “‘when inconsistency in a witness’s testimony is

unexplained and when neither version of his testimony is corroborated by other

evidence.’” Id. (quoting Caldwell, 977 S.W.2d at 188).

Here, the Defendant cites three instances where the victim testified inconsistently

with prior statements and to which he believes the rule of cancellation applies. The

Defendant argues that the victim could not consistently explain how much change was

stolen from his vehicle. However, the victim explained that his prior testimony that $40

or $50 in change was stolen was a “light guess” and that he was sure the amount was

more than that. As a result, the victim explained the inconsistency, and the rule of

cancellation does not apply. Id.; Caldwell, 977 S.W.2d at 188. Next, the Defendant

argues that the victim could not give consistent testimony regarding whether one or both

of his assailants had guns. At trial, the victim explained that he never saw the man who

approached him from behind with a gun but that he believed the man did based on a

statement the man made to the Defendant. Thus, the victim explained his testimony, and

the rule of cancellation does not apply. Id.; Caldwell, 977 S.W.2d at 188. Moreover,

whether the second assailant possessed a gun does not affect the sufficiency of the

evidence regarding the Defendant’s convictions, because the victim identified the

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Defendant as the man who approached him from the front and who wielded a gun. The

Defendant also complains that the victim testified that he identified a person with short

hair in a photographic array but informed law enforcement in a statement that the man

had short, curly dreadlocks. However, because the Defendant only cites a discrepancy

between the victim’s unsworn statement to law enforcement and his sworn trial

testimony, the rule of cancellation does not apply. See Id. (stating that the rule of

cancellation applies to contradictory sworn statements).

Finally, the Defendant’s complaint that the evidence was merely circumstantial

overlooks that circumstantial evidence alone or a combination of direct and substantial

evidence is sufficient to support his convictions. See Dorantes, 331 S.W.3d at 379;

Matthews, 805 S.W.2d at 779. Additionally, there was direct evidence that the victim

observed the Defendant approach him from the front while wielding a gun and

subsequently identified him in a photographic lineup as the robber and carjacker.

Therefore, we conclude that the evidence was sufficient to support the Defendant’s

convictions for carjacking and aggravated robbery.

II. Trial Court as the Thirteenth Juror

We briefly note that the Defendant included in his sufficiency argument a

conclusory argument that the trial court failed to weigh the evidence by acting as the

thirteenth juror in his trial. The Defendant did not cite to the legal standards relevant to

his assertion that the trial court did not fulfill its role as thirteenth juror. Tennessee Rule

of Criminal Procedure 33(d) provides that “[t]he trial court may grant a new trial

following a verdict of guilty if it disagrees with the jury about the weight of the

evidence.” This rule “‘imposes upon a trial court judge the mandatory duty to serve as

the thirteenth juror in every criminal case,’” and makes “‘approval by the trial judge of

the jury’s verdict as the thirteenth juror . . . a necessary prerequisite to imposition of a

valid judgment.’” State v. Biggs, 218 S.W.3d 643, 653 (Tenn. Crim. App. 2006) (quoting

State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995)). Under this review, the trial court

“‘must weigh the evidence and grant a new trial if the evidence preponderates against the

weight of the verdict.’” Id. (quoting State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim.

App. 1996)). A trial court’s “inquiry into the weight is entirely different” from an inquiry

into the sufficiency of the evidence because the trial court “does not have to view the

evidence in the light most favorable to the prosecution; he may weigh the evidence

himself as if he were a juror and determine for himself the credibility of the witnesses and

the preponderance of the evidence.” State v. Ellis, 453 S.W.3d 889, 899 (Tenn. 2015)

(quoting State v. Johnson, 692 S.W.2d 412, 415 (Tenn. 1985)).

However, the Defendant’s bare assertion that the trial court failed to act as the

thirteenth juror in his case without citation to authority or the applicable standard of

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review is not adequate to invite our review. See Tenn. R. App. P. 27(a)(7) (“The brief of

the appellant shall contain . . . [a]n argument . . . with citations to the authorities” and “for

each issue, a concise statement of the applicable standard of review”); Tenn. Ct. Crim.

App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or

appropriate references will be treated as waived by this court.”) Accordingly, the

Defendant’s argument regarding the trial court’s failure to weigh the evidence as the

thirteenth juror is waived. See State v. Leath, 461 S.W.3d 73, 115 (Tenn. Crim. App.

2013) (treating as waived the defendant’s “one-sentence argument citing only to a news

media article” that the trial court failed to act as the thirteenth juror).

III. Admissibility of the Victim’s Prior Photographic Identification

The Defendant argues that evidence of the victim’s prior identification of him in a

photographic lineup was inadmissible hearsay because the victim failed to identify him in

court and he was not given an opportunity to cross-examine the victim about his prior

identification. He contends that the trial court erred by allowing the State to admit the

victim’s prior identification as evidence. The State argues that the Defendant has waived

his claim because he failed to object on these grounds at trial and did not raise his

arguments in a motion for new trial. The State contends that this court should not engage

in plain error review because the Defendant has not requested it, and it argues that the

Defendant is not entitled to relief under plain error review. We agree with the State that

this claim is waived, and we decline to review for plain error.

As discussed above, the Defendant objected to the admissibility of the

photographic lineup on the grounds that there was no foundation for the questioning and

that the evidence was hearsay because it contained an additional statement at the bottom

of the page. In the Defendant’s motion for new trial and amended motion for new trial,

he argued that the victim’s identification of him at trial was uncertain and that the jury

would not have convicted him had it been excluded. Here, the Defendant abandons the

arguments he made at trial and in his post-trial motions for new trial regarding the

admissibility of the photographic lineup and, instead, asserts the novel allegation that the

entire photographic identification was inadmissible hearsay because the victim initially

failed to identify him at trial. “It is well-settled that a defendant may not advocate a

different or novel position on appeal.” State v. Howard, 504 S.W.3d 260, 277 (Tenn.

2016) (citing State v. Leach, 148 S.W.3d 42, 55 (Tenn. 2004)); State v. Adkisson, 899

S.W.2d 626, 634-35 (Tenn. Crim. App 1994) (stating that a defendant may not assert one

ground for relief at trial and then pursue a new or different theory on appeal). The

Defendant failed to raise this argument at trial or in his motions for new trial.

Accordingly, the Defendant’s claim is waived. Because the Defendant’s arguments are

waived and because he does not request plain error review, we decline to address this

issue as plain error. See State v. Nelson, 275 S.W.3d 851, 864 (Tenn. Crim. App. 2008)

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(“Appellate courts are advised to use plain error sparingly in recognizing errors that have

not been raised by the parties or have been waived due to a procedural default.”) (citing

State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007)).

IV. Sentencing

The Defendant argues that the trial court abused its discretion by sentencing him

to the maximum possible sentence for his convictions. As support, the Defendant

contends that only the enhancement factor regarding his previous history of criminal

behavior applied and that the trial court erroneously relied on the one applicable factor to

impose the maximum sentence. He also contends that the trial court’s application of the

enhancement factor that the Defendant possessed or employed a firearm was erroneous

because the jury acquitted him of using a firearm during the carjacking. He argues that

the record suggests the trial court improperly considered the maximum sentence to be the

default sentence. In response, the State argues that the trial court’s findings supported its

decision to sentence the Defendant to the maximum sentence within the sentencing range.

The State argues that the trial court did not err in applying the firearm enhancement

factor because, under the preponderance of the evidence, the trial court could have found

that the Defendant used or possessed a gun during the commission of the carjacking.

The trial court held a sentencing hearing, during which no testimony was offered.

The presentence report was entered as evidence to the sentencing hearing, and the trial

court proceeded to make its findings on the record. The presentence report reflected that

the Defendant had two aggravated burglary convictions from 2010 and convictions for

reckless endangerment, attempted carjacking, theft of property, and aggravated burglary

from 2014. The Defendant received a moderate score on his Strong-R assessment.

The trial court considered the record, the presentence report, the principles of

sentencing, and the relevant sentencing factors. The trial court found that the Defendant

was a Range II, multiple offender. The trial court reviewed the Defendant’s criminal

history and applied as an enhancement factor that the Defendant had a “previous history

of criminal convictions or criminal behavior.” See T.C.A § 40-35-114(1). The trial court

found that the Defendant was not out on bond when he committed the underlying

offenses, and it did not apply enhancement factor eight. See T.C.A. § 40-35-114(8). The

trial court was uncertain about the applicability of enhancement factor thirteen, relating to

whether the Defendant was on parole when he committed the offenses, and it did not

apply that factor. See T.C.A. § 40-35-114(13). After the hearing and in its written

findings of fact related to sentencing on the Defendant’s carjacking conviction, the trial

court marked that enhancement factor nine applied, that the Defendant “possessed or

employed a firearm . . . during the commission of the offense.” See T.C.A. § 40-35-

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114(9). The Defendant conceded that he did not believe any mitigating factors were

applicable, and the trial court did not apply any mitigating factors.

The trial court found that sentences of twenty years were appropriate considering

the Defendant’s extensive criminal history and the circumstances of his case. The trial

court found that consecutive sentencing was not warranted under the circumstances and

ordered the Defendant’s sentences to be served concurrently.

This court reviews the length of a sentence for abuse of discretion, applying “a

presumption of reasonableness to within-range sentencing decisions that reflect a proper

application of the purposes and principles of our Sentencing Act.” State v. Bise, 380

S.W.3d 682, 707 (Tenn. 2012). A sentence will be upheld “so long as it is within the

appropriate range and the record demonstrates that the sentence is otherwise in

compliance with the purposes and principles listed by statute.” Id. at 709-10. Once the

trial court establishes the appropriate range of the sentence, the court must consider: the

evidence, if any, received at the trial and the sentencing hearing; the presentence report;

the principles of sentencing and arguments as to sentencing alternatives; the nature and

characteristics of the criminal conduct involved; evidence and information offered by the

parties on mitigating and enhancement factors; any statistical information provided by the

administrative office of the courts as to sentencing practices for similar offenses in

Tennessee; any statement the defendant makes on his own behalf as to sentencing; the

result of the validated risk and needs assessment conducted by the department and

contained in the sentencing report; and the potential for rehabilitation to determine the

specific length of the sentence. T.C.A. §§ 40-35-103(5), -113, -114, -210(b)). The

weight given to mitigating and enhancement factors is a decision “left to the trial court’s

sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). Accordingly,

“this court is not free to reevaluate the weight and value assigned to the factors found by

the trial court.” State v. Edward Rudolph Wyse, Jr., No. E2019-01454-CCA-R3-CD,

2020 WL 6141011, at *13 (Tenn. Crim. App. Oct. 20, 2020), no perm. app. filed; see

Bise, 380 S.W.3d at 699. A trial court’s misapplication of an enhancement or mitigating

factor does not result in an abuse of discretion “if ‘there are other reasons consistent with

the purposes and principles of sentencing’” for imposing the sentence. State v. Branham,

501 S.W.3d 577, 595 (Tenn. Crim. App. 2016) (quoting Bise, 380 S.W.3d at 706).

Here, the trial court did not abuse its discretion in sentencing the Defendant. The

trial court found that the Defendant was a Range II, multiple offender, and this finding is

not challenged on appeal. The Defendant was convicted of carjacking and aggravated

robbery, Class B felonies. T.C.A. § 39-13-402(b) (aggravated robbery), -404(b)

(carjacking). The sentencing range for a Range II offender for a Class B felony is twelve

to twenty years. T.C.A. § 40-35-112(b)(2). The trial court chose sentences in the

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appropriate range when it sentenced the Defendant to twenty years for each of his

convictions.

In terms of the enhancement factors, the trial court found that the Defendant had a

“previous history of criminal convictions or criminal behavior” and that he “possessed or

employed a firearm . . . during the commission of the offense.” T.C.A. §§ 40-35-114(1),

(9). The Defendant argues that the trial court erred in applying enhancement factor nine

to the carjacking conviction because he had been acquitted of employing a firearm during

the commission of or attempt to commit a dangerous felony. The trial court did not

discuss the factor in its oral findings, and the finding only appears as a checkmark on a

form completed as part of its written findings after the hearing. It is unclear whether the

trial court relied on enhancement factor nine in its sentencing decision. The trial court

imposed the exact same sentences of twenty years at the hearing, where it did not rely on

the enhancement factor, as it did in its written order. Regardless, our courts have held

that “a sentencing court may apply an enhancement factor based on facts underlying an

offense for which the defendant has been acquitted, so long as the facts have been

established in the record by a preponderance of the evidence.” State v. Winfield, 23

S.W.3d 279, 283 (Tenn. 2000); see State v. Ryan Patrick Broadrick, No. M2017-01136-

CCA-R3-CD, 2018 WL 4203883, at *12 (Tenn. Crim. App. Sept. 4, 2018). The record

established that the victim reported the Defendant to have approached him with a gun

while he and another individual robbed the victim. After the victim’s property was taken,

the Defendant and the other individual stole the victim’s vehicle and left the scene.

Accordingly, the record supports the trial court’s finding that the Defendant employed or

possessed a firearm during the commission of a carjacking under the preponderance of

the evidence standard. To the extent that the Defendant argues that the trial court gave

undue weight to these enhancement factors, he is not entitled to relief. See Carter, 254

S.W.3d at 345; Edward Rudolph Wyse, Jr., 2020 WL 6141011, at *13.

The Defendant also argues that the trial court failed to make the proper findings to

support its decision; however, he fails to cite to any specific sentencing factors or

principles the trial court failed to consider. Contrary to the Defendant’s argument, the

record reflects that the trial court considered the presentence report, the enhancement

factors, the principles of sentencing, and the relevant sentencing factors. Further, there is

no indication that the trial court presumed the maximum sentence to be the default

sentence. Accordingly, we apply a presumption of reasonableness to the trial court’s

sentences, see Bise, 380 S.W.3d at 707, and we conclude that the Defendant has failed to

show the trial court abused its discretion. The Defendant is not entitled to relief on this

claim.

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CONCLUSION

Based upon the foregoing reasons, we affirm the judgments of the trial court.

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JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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