State of Tennessee v. DeAngelo LeQuinte Berry

02/10/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 24, 2021

STATE OF TENNESSEE v. DEANGELO LEQUINTE BERRY

Appeal from the Circuit Court for Montgomery County

No. CC17-CR-462 William R. Goodman, III, Judge

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No. M2020-00250-CCA-R3-CD

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The Appellant, DeAngelo LeQuinte Berry, was convicted in the Montgomery County

Circuit Court of first degree felony murder and aggravated robbery, a Class B felony, and

received a sentence of life plus nine years. On appeal, the Appellant contends that the

evidence is insufficient to support the convictions, that the trial court erred by allowing the

State to introduce evidence from a cellular telephone and a Facebook account because the

evidence was not admissible pursuant to Tennessee Rules of Evidence 403 and 901, that

the trial court’s failure to grant a mistrial after a witness referred to an assault rifle

constitutes plain error, and that the trial court erred by ordering consecutive sentencing.

Based upon our review of the record and the parties’ briefs, we find no reversible error and

affirm the judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY THOMAS,

JR., and ROBERT M. MONTGOMERY, JR., JJ., joined.

Gregory D. Smith (on appeal) and Tyler Howard (at trial), Clarksville, Tennessee, for the

appellant, DeAngelo LeQuinte Berry.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant

Attorney General; John Wesley Carney, Jr., District Attorney General; and Dan Brollier,

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

OPINION

I. Factual Background

In April 2017, the Montgomery County Grand Jury indicted the Appellant; Robert

Michael Gough, Jr.; and Marqus Lorenzo Bryant for the first degree felony murder and

aggravated robbery of Joseph Gordon. The Appellant’s codefendants entered into plea

agreements with the State, and the Appellant proceeded to trial on July 16, 2018.

At trial, Officer Steven Deering of the Clarksville Police Department (CPD)

testified that about 1:00 a.m. on December 23, 2016, he responded to a 911 call at an

apartment complex on Royster Lane. When he arrived, he saw a silver car in the parking

lot. The car’s headlights were on, and the driver’s door was open. Officer Deering noticed

a trail of blood from the car across the parking lot. He followed the trail to the victim, who

was lying on the ground between two cars.

Officer Brandon Hendricks of the CPD testified that he arrived at the apartment

complex about the same time as Officer Deering. A man in the parking lot said that he

knew the victim and that the victim lived in one of the apartments.

Officer Allen Pendarvis of the CPD responded to the scene and prepared a crime

scene sketch. The victim was lying between two vehicles in front of Building 700. The

silver car was parked behind Building 300.

Detective Scott Beaubien of the CPD testified that he photographed the crime scene

on the morning of December 23. The victim had left a trail of blood as he was “fleeing

from his car,” and a Ruger P95 handgun was on the driver’s floorboard next to the center

console. A shell casing and a pair of slippers were in the parking lot. Later that day,

Detective Beaubien went to the Circle K “just down the street” from the apartment complex

and photographed the gas station. On cross-examination, Detective Beaubien testified that

the Ruger was loaded with one round in the chamber and three rounds in the magazine.

The police also found a cellular telephone in the victim’s car. The telephone was on the

floorboard between the driver’s seat and the driver’s door frame.

Detective Brittany Matos testified that she responded to the crime scene and

collected an iPhone and a Ruger P95 nine-millimeter handgun from the victim’s car. She

collected a .380 caliber shell casing from the parking lot. Detective Matos said that the

Ruger was loaded but that she did not know if it was functional. On cross-examination,

Detective Matos testified that she collected the victim’s wallet from his body. The wallet

contained the victim’s identification and thirty-three dollars. A dollar bill was in plain

view in the center console of the victim’s car.

Monique Freeman, the victim’s girlfriend, testified that the victim’s nickname was

“Jojo” or “Scrappy” and that they lived together in December 2016. On the night of

December 22, the victim woke Freeman and told her that he needed to borrow her car so

that he could go to the gas station “down the street.” Freeman knew he meant the Circle

K near their apartment. After the shooting, Freeman saw that her car was parked “[i]n front

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of another building” of their apartment complex. Freeman acknowledged that the victim

sold marijuana but said that she did not know if he carried a weapon. On cross-

examination, Freeman testified that the victim was medically retired from the Army and

that he knew how to operate a firearm. She acknowledged giving a prior statement in

which she said the victim always carried a weapon. The victim carried a weapon for

protection.

Thomas Deering testified as an expert in forensic pathology that he performed the

victim’s autopsy on December 23, 2016. The victim sustained one gunshot wound. The

bullet entered the victim’s head behind his left ear, and soot was along one edge of the

wound, meaning that the end of the gun barrel was “real close” to the victim when the gun

was fired. The bullet lacerated the victim’s tongue, traveled through his mouth, and exited

underneath his right jaw. The bullet grazed the top of his right arm, entered his arm, and

came to rest just under the skin. The neck wound caused a large amount of blood loss, and

the victim aspirated blood into his lungs. Dr. Deering concluded that the victim’s cause of

death was a gunshot wound to the neck and that his manner of death was homicide. On

cross-examination, Dr. Deering testified that he recovered about $210 from the victim’s

body.

Investigator Michael Wrey of the CPD testified that on December 23, 2016, he went

to the crime scene on Royster Lane and spoke with the victim’s girlfriend. Investigator

Wrey then went to the Circle K and viewed the store’s surveillance video. The video

showed that at 1:00 a.m., the victim’s car pulled to the side of the store and out of the

camera’s view. The victim entered the store, bought something, and returned to his car.

The victim drove his car to a gas pump and then drove out of the parking lot. Investigator

Wrey noticed that a black Dodge Charger had pulled into the lot and had “also parked off

in the distance.” After the victim’s car left the Circle K, the Charger left and traveled in

the same direction. The State played the video for the jury.

Officer Justin Long of the CPD testified that on the morning of December 23, 2016,

he began looking for a dark-colored Charger. He found the car at an apartment complex

on State Line Road. Officer Thomas Walker of the CPD testified that he maintained

security on the Charger in the parking lot and that he learned “persons from that vehicle

might be in apartment 45.” Officer Walker and Sergeant Eric Ewing entered the breezeway

of the apartment building and “ran into the owner of the vehicle,” who was codefendant

Marqus Bryant. Codefendant Robert Gough; Gough’s girlfriend, Jayamber Johnson; and

Raylonde Bryant were in apartment 45. Raylonde, who was renting apartment 45, gave

the officers consent to search the apartment.1 Officer William King of the CPD testified

1

Because Raylonde Bryant shares a surname with one of the defendants, we will refer to him by

his first name for clarity. We mean no disrespect to the witness.

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that he processed the Charger on January 5, 2017, and collected samples for DNA and

gunshot residue.

Detective Frederick McClintock, III, of the CPD testified that on December 23,

2016, he went to apartment 45 and noticed a strong odor of marijuana. Detective

McClintock followed Jayamber Johnson from apartment 45 to her apartment in Oak Grove,

and Johnson gave Detective McClintock permission to search her apartment. During the

search, he found drug paraphernalia and “some packaging.” Based on his training and

experience, he thought the packaging was evidence of “previous selling of marijuana.”

Detective McClintock also found Gough’s wallet in the apartment, and the wallet contained

a receipt from Tennessee Gun Country. Detective McClintock returned to apartment 45

and photographed the following evidence police found in the apartment: a brown leather

holster, a grip for a handgun, “a water bong used to smoke marijuana,” an assault-style

rifle, two small bags of marijuana, and one larger bag of marijuana. The magazine for the

rifle contained .22 caliber rounds. On cross-examination, Detective McClintock testified

that the marijuana in apartment 45 weighed forty-eight grams.

David Beta, the owner of Tennessee Gun Country, identified surveillance video

showing that on December 19, 2016, the manager of his store “[gave] an individual value

on a gun.” Beta also identified the store’s sign-in log for that date, and one of the names

in the log was “Berry.” John Griggs, the manager of Tennessee Gun Country, testified that

on December 19, 2016, he priced a Ruger SP101 for codefendant Gough. Griggs also

priced a “a small pocket pistol .380” for a man who was with Gough. However, due to the

condition of that gun, Griggs was not interested in buying it. Later that day, Gough

returned to the store, and Griggs purchased the Ruger from him.

Twenty-one-year-old Marqus Bryant testified that he was charged with the

Appellant and Gough in this case and that he had been in confinement since December 24,

2016. In exchange for Bryant’s truthful testimony against the Appellant, Bryant agreed to

to plead guilty to facilitation of first degree murder and receive a sentence of thirteen and

one-half years to be served at twenty percent release eligibility.

Bryant testified that in December 2016, he had just returned from military service

in Afghanistan and owned a black Dodge Charger. Gough served in the same military unit

as Bryant, and they were stationed at Fort Campbell. Bryant “[knew] of” the Appellant but

did not know him personally. On the afternoon of December 22, Gough borrowed Bryant’s

black Charger. About 6:00 p.m., Gough picked up Bryant outside Gate Three at Fort

Campbell. They went to Jayambra Johnson’s apartment and then to Raylonde Bryant’s

apartment. Gough wanted “to go buy some more weed, so he could sell [it]” and arranged

to buy marijuana from the victim. Gough had never bought drugs from the victim

previously. Bryant did not know the victim, so Bryant took a .40 caliber Highpoint pistol

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with him for protection. They left Raylonde’s apartment about 12:45 a.m. on December

23, and Gough did not have a weapon at that time.

Bryant testified that he drove the Charger and picked up the Appellant, who was

known as “Delo.” Gough was sitting in the front passenger seat, and the Appellant was

sitting in the back seat. Bryant drove to the Circle K and backed into a parking space so

he could see the victim’s silver car pull into the parking lot. About ten minutes later, the

victim arrived and telephoned Gough to find out where Gough was located. Gough told

the victim that he was in a black Charger. The victim told Gough to follow him back to

his apartment, so Bryant followed the victim to the apartment complex on Royster Lane.

The victim pulled into a parking space, and Bryant “backed in” next to him. Gough asked

for Bryant’s pistol, so Bryant handed the gun to him. Gough got out of the Charger to

conduct the drug transaction while Bryant and the Appellant remained in the Charger.

Bryant testified that Gough got into the front passenger seat of the victim’s silver

Hyundai. Bryant was using his cellular telephone and was not paying attention to what

was happening. At some point, though, he noticed that the Appellant got out of the

Charger. Bryant heard a gunshot and saw Gough getting out of the Hyundai. Gough was

holding the Highpoint pistol, ran back to the Charger, and got into the car. The Appellant

also came back to the Charger and got into the back seat. The Appellant was carrying “like

a little Walmart bag.”

Bryant testified that the Appellant and Gough “got into a heated discussion” because

the Appellant had shot the victim. Bryant said Gough stated something like, “‘Bro, what

is you doing?’” The Appellant responded something to the effect of, “‘It is what it is.’”

Bryant drove back to Johnson’s apartment in Oak Grove and saw that the bag the Appellant

had been carrying after the shooting contained marijuana. Gough and the Appellant “split”

the marijuana with Gough keeping one half and the Appellant keeping one half. Bryant

drove the Appellant back to the location where he had picked up the Appellant earlier, and

Bryant and Gough spent the night at Johnson’s apartment. Later that day, they returned to

Raylonde’s apartment, and Gough gave his half of the marijuana to Raylonde. The police

found the black Charger parked at Raylonde’s apartment.

Bryant testified that he never saw the Appellant with a gun on December 23 and

that he did not see the Appellant shoot the victim. After the Appellant was arrested, he and

Bryant were in jail together. The Appellant asked Bryant several times “[t]o not place him

at the scene.”

On cross-examination, Bryant acknowledged that he would be eligible for parole

soon. He also acknowledged that he told the police “from the very start that this was just

supposed to be a drug deal” but that the police never wanted to know his version of the

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story. The police tried to convince Bryant that the three defendants had planned to rob the

victim.

Bryant acknowledged that the Circle K was well-lit and was not a good place to

commit a robbery. The drug buy was supposed to occur at the Circle K, but the victim

changed the location. Bryant had never bought drugs from the victim previously, and the

victim’s changing the location made Bryant uneasy. Bryant said that when they arrived at

the victim’s apartment complex, Gough tried to buy marijuana from the victim. However,

a dispute occurred. Bryant said that he assumed the dispute was over the price of the

marijuana but that he did not know for sure what the dispute was about or what occurred

in the victim’s car. Bryant acknowledged telling the police that a “struggle” occurred and

that he saw “a lot of hand movement” prior to the shooting.

Bryant testified that during his police interview, the police did not believe his story

and thought Gough had planned to rob the victim. The police accused Bryant of lying and

tried to scare him. At that point in his interview, Bryant had not mentioned that the

Appellant was involved. The police insinuated that Bryant was going to spend the rest of

his life in prison, so Bryant decided “to get the best deal” and told the police about the

Appellant. Bryant continued to maintain to the police, though, that the defendants did not

plan to rob the victim and that Gough had the gun “just in case for protection.” Bryant

finally told the police, “I know that it was supposed to be a drug deal, but if there was

something else, I didn’t know about it.” The police asked Bryant who he thought shot the

victim, and Bryant told them, “‘It might have been Delo.’” Bryant said he thought the

Appellant shot the victim because Bryant “couldn’t see [Gough] being the one to shoot

somebody.”

Bryant acknowledged telling the police that Gough, not the Appellant, had the bag

of marijuana after the shooting. Bryant also acknowledged that his memory about the

shooting would have been more accurate when he spoke with the police than at the

Appellant’s trial. After the shooting, Gough and Bryant smoked some of the marijuana.

Bryant acknowledged that Gough had planned to buy two ounces of marijuana from the

victim, which equated to 56.6 grams, and that the police recovered 48 grams of marijuana

from Raylonde’s apartment. On redirect examination, Bryant acknowledged that he had

consistently maintained that the defendants did not plan to rob the victim, that he did not

get out of the Charger during the drug buy, and that he did not know who shot the victim.

Twenty-five-year-old Robert Gough testified that he was charged with Marqus

Bryant and the Appellant for the victim’s death and that he pled guilty to facilitation of

first degree murder in exchange for a fifteen-year sentence to be served at thirty percent.

The plea agreement required his truthful testimony at the Appellant’s trial.

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Gough testified that he met Marqus Bryant in the military and that he met the

Appellant through the Appellant’s cousin, Raylonde Bryant. Raylonde Bryant and Marqus

Bryant were not related. Gough had known the Appellant about six months at the time of

the shooting, and they communicated via cellular telephone. The Appellant was listed in

Gough’s telephone as “Delo,” and the Appellant’s telephone number was xxx-xxx-7463.

Gough testified that on December 19, 2016, he went to Tennessee Gun Country to

sell his .357 caliber handgun. The Appellant accompanied Gough and talked with the

manager about buying the Appellant’s .380 caliber handgun. Gough identified surveillance

video showing him and the Appellant talking with the manager. Gough said the Appellant

used that same .380 to shoot the victim.

Gough testified that on December 22, 2016, he worked at Fort Campbell until noon.

He denied borrowing Bryant’s black Charger and said he was driving a yellow Charger.

About 5:30 p.m., Gough picked up Bryant in the yellow Charger, and they went to

Jayambra Johnson’s apartment in Oak Grove and then Raylonde’s apartment on State Line

Road. At some point, Gough picked up the Appellant and drove him to Raylonde’s

apartment. Gough decided to buy some marijuana so that he could resell it and contacted

his seller, who was known as “Tragic.” However, Tragic could not meet Gough that night,

so Tragic “reached out to [the victim]” to make sure Gough could buy marijuana from the

victim. The victim and Gough “came in contact” and planned to meet at the Circle K so

that Gough could buy two ounces of marijuana. Gough acknowledged that the victim was

listed in Gough’s cellular telephone as “Scrap.”

Gough testified that he had a .40 caliber handgun and that he, Bryant, and the

Appellant left in Bryant’s black Charger to meet the victim. Bryant drove, Gough sat in

the front passenger seat, and the Appellant sat in the back seat. When they arrived at the

Circle K, the victim spoke with Gough on the telephone. The victim thought the Circle K

was “a little too hot” because too many people were there and told Gough to follow him to

his residence. Bryant followed the victim to the victim’s apartment complex. The victim

pulled into a parking space, and Bryant pulled into a space beside the victim.

Gough testified that he got into the front passenger seat of the victim’s car while

Bryant and the Appellant remained in Bryant’s car. Gough and the victim got “acquainted

a little bit” because they had never met, and the victim showed the marijuana to Gough.

They talked about the price of the marijuana, $500, and Gough showed the money to the

victim. Gough said that his conversation with the victim was “real cordial” and that the

marijuana was in a large freezer bag at the victim’s feet. Gough said he saw the Appellant

get out of Bryant’s Charger, walk to the driver’s side of the victim’s car, and tap on the

victim’s window with “[a]n A.R. .22 rifle.” Gough did not know the Appellant had the

rifle until the Appellant tapped on the window. Gough and the victim held their hands up,

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and Gough yelled at the Appellant, “‘Delo, what you doing?’” The victim thought Gough

was involved, so Gough told the victim, “‘I don’t have [sh*t] to do with this.’” The

Appellant said, “‘[F*ck] this. I need this. Grab everything.’” The victim told the

Appellant, “‘Just take it. You all can have it.’” The Appellant opened the driver’s door,

pointed the gun at the victim, and pulled the trigger. The rifle did not fire, so the Appellant

“threw . . . the .22 away,” pulled out “his little .380,” and fired one shot.

Gough testified that the victim had a gun on the floorboard next to the marijuana

but that the victim never reached for the gun. After the Appellant shot the victim, the

Appellant grabbed the bag of marijuana. Gough got out of the victim’s car and ran back

to the passenger side of Bryant’s car. Gough told Bryant to “pull off” before the Appellant

could get back into the Charger, but the Appellant opened the back door and got into the

back seat. Gough said that he “yelled, cussed” and asked the Appellant “what the hell was

he thinking.” The Appellant responded, “‘[Damn], Cus, did I [f*ck] up?’” Gough told the

Appellant, “‘Yeah, what you think?’”

Gough testified that Bryant drove back to Johnson’s apartment. When they arrived,

the Appellant put the bag of marijuana on Johnson’s kitchen counter. The Appellant tried

to “split” the marijuana with Gough, but Gough told the Appellant that he did not want any

“because there was blood on it.” Gough told Bryant to get the Appellant out of Johnson’s

apartment because he did not want anything to do with the Appellant. Gough then went

into Johnson’s bedroom and cried. When Gough returned to the kitchen, the Appellant

was gone, but one half of the marijuana remained. Gough took the marijuana to Raylonde

and was at Raylonde’s apartment when the police found Gough. The police searched

Raylonde’s apartment and found the marijuana. Gough spoke with the police but initially

did not tell them anything about the Appellant’s involvement because Gough did not want

to be a “snitch.” Gough said that he never used the handgun he had with him on the night

of the shooting and that he later left the gun at Raylonde’s apartment.

On cross-examination, Gough acknowledged that he was “going to spend way less

time in jail thanks to that [plea] deal.” He also acknowledged that he insisted to the police

that the victim’s shooting was “a drug deal that [went] wrong.” Gough was surprised when

the police charged him with first degree murder because he did not shoot the victim. The

police did not threaten Gough but said he would spend the rest of his life in jail. Gough

denied that the police scared or coerced him.

Gough testified that he did not have the handgun on his person when he got into the

victim’s car. Bryant had the gun because Gough had left the gun in the black Charger, and

Gough did not know why Bryant had claimed Gough was holding the gun after the

shooting. The police asked Gough twice who killed the victim, and Gough told them both

times, “I don’t know.” When the police asked Gough for the third time who killed the

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victim, Gough told them, “Delo.” Gough said he initially lied to the police about the

Appellant’s involvement because Gough was “scared about . . . ‘snitching.’”

Gough acknowledged that his police interview was video recorded. During the

interview, the officer left the room, and Gough could be heard saying to himself, “‘Better

him than me.’” Gough also said to himself, “‘I’m willing to give them everything he wants

to know.’” Gough acknowledged that he lied during his interview. For example, Gough

denied to the police that he sold marijuana. Gough said that just prior to the shooting, the

Appellant threw the rifle onto the ground. After the shooting, the Appellant picked up the

rifle and ran back to Bryant’s car. Gough acknowledged that he never told the police the

Appellant had a rifle. He said Bryant was lying when Bryant claimed Gough had the bag

of marijuana after the shooting.

Shauntay Curtis, the Appellant’s sister, testified that she lived in a suburb of

Chicago and that she did not want to testify against the Appellant. About Christmas 2016,

the Appellant came to visit Curtis. Curtis said, “He told me . . . that they was going to do

-- commit a -- a robbery, and that somebody got shot, and that -- he told me that -- he told

me that he’s the one that -- that shot the person.” The Appellant told Curtis that he and

“two other guys” were involved, and Curtis assumed the Appellant came to Chicago to

hide from the police. Curtis talked with the Appellant about turning himself in to law

enforcement, but the Appellant “wasn’t going to.” On cross-examination, Curtis

acknowledged that after the Appellant told her about the shooting, the two of them “sobbed

together.”

Raylonde Bryant testified that he used to be in the same military unit as Marqus

Bryant and Robert Gough and that the Appellant was his cousin. On the night of December

22, 2016, Bryant and Gough were at Raylonde’s apartment. Raylonde said that an “A.R.

15” was in his apartment and that it was his “understanding” the rifle belonged to “Delo.”

A “.357” and a “Highpoint .40” also were in Raylonde’s apartment. The .357 caliber

handgun belonged to Gough, and the Highpoint .40 caliber handgun belonged to

Raylonde’s brother but was “loaned to” the Appellant. The day after the shooting, Gough

gave some marijuana to Raylonde and told Raylonde “to put it up.” Gough did not say

where he got the marijuana. The police later found the rifle, the Highpoint, and the

marijuana in Raylonde’s apartment.

Raylonde testified that after the Appellant was arrested, the Appellant contacted him

and asked him to “[r]each out to [Gough] to get him to change his statement.” The

Appellant also talked with Raylonde about establishing an alibi defense.

On cross-examination, Raylonde testified that the Appellant was never in

Raylonde’s apartment on December 22 or 23; therefore, the Appellant could not have taken

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the rifle with him to the Circle K. However, Gough took the rifle with him when he left

Raylonde’s apartment before the shooting. Raylonde identified a transcript of a jailhouse

telephone call the Appellant made to him on April 28, 2018. Raylonde acknowledged that

according to the transcript, the Appellant told Raylonde, “‘Have [Gough] tell them what

really happened[.]’”

Elaine Bryant, the Appellant’s cousin, testified under subpoena that a few days

before Christmas 2016, the Appellant came to her house. The Appellant had marijuana

and told Ms. Bryant that “he had to do some crazy stuff to get it.” Ms. Bryant said that she

and the Appellant were Facebook “friends” and that she also saw “some stuff on his

[Facebook] page.” Ms. Bryant recognized the Appellant’s Facebook page and the

messages he posted because his photograph appeared on his page and messages. Ms.

Bryant said that she “look[ed] on Facebook again” and that she saw the Appellant “arguing

with people, saying, ‘Oh, well, it ain’t my fault. He’s dead now. What you want me to

do,’ etcetera, etcetera.” The State asked Ms. Bryant if she questioned the Appellant about

his involvement in the shooting, and she answered, “‘Well, I didn’t have to ask. I could

clearly read it on Facebook.’” Ms. Bryant later asked the Appellant, who had left

Tennessee by that time, if he had “anything to do with the situation.” The Appellant told

Ms. Bryant that “he didn’t have nothing to do with it, but things got hectic, that’s why he

left.” The Appellant also told her that “he had to do what he had to do to get the weed.”

Ms. Bryant denied telling the police that the Appellant claimed he “popped the dude.” On

cross-examination, Ms. Bryant testified that the Appellant used to come to her house “[a]ll

the time” and that he always had marijuana. The Appellant never said anything to Ms.

Bryant about a robbery.

Sergeant Gregory Beebe of the CPD testified that he investigated the victim’s death

and arrived at the crime scene at 2:47 a.m. on December 23, 2016. The next day, Sergeant

Beebe went to Raylonde’s apartment and searched it. On December 28, Sergeant Beebe

learned that Raylonde had found a Highpoint .40 caliber handgun in his apartment, so

Sergeant Beebe went to the apartment and collected it.

Sergeant Beebe testified that he searched Gough’s cellular telephone and that he

found text messages that may have been related to the case. Sergeant Beebe read the text

messages from Gough’s telephone to the jury, and the State introduced a typed copy of the

text messages into evidence. The text messages Gough’s telephone exchanged with

“Skrapp” were as follows:

Date Time Incoming/Outgoing Message

12/22/16 11:14 p.m. Incoming My name skrapp bro lock me in

gimme 5 for it

12/22/16 11:32 p.m. Incoming Long as it ain’t no Bs

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12/22/16 11:45 p.m. Incoming Yea long as business legit

12/23/16 12:06 a.m. Incoming Yea he just hit me say you solid and

that’s my mans so you good with me

The text messages Gough’s telephone exchanged with “Delo” were as follows:

Date Time Incoming/Outgoing Message

12/22/16 11:41 p.m. Outgoing Waiting on his text back

12/22/16 11:53 p.m. Incoming Nothin?

12/22/16 11:56 p.m. Outgoing He said yea

12/23/16 12:36 a.m. Outgoing Come out

The text messages Gough’s telephone exchanged with Marqus Bryant’s telephone were as

follows:

Date Time Incoming/Outgoing Message

12/24/16 8:59 a.m. Incoming Aye big bro 12 on our add

12/24/16 8:59 a.m. Incoming Hide everything right now

12/24/16 8:59 a.m. Outgoing How ??? Wtf u mean

On cross-examination, Sergeant Beebe acknowledged that the text messages did not

mention a robbery. He also acknowledged that the text messages appeared to be discussing

a drug transaction.

Sergeant Eric Ewing of the CPD testified that he was the lead investigator in the

case and participated in the search of Raylonde’s apartment. The police found marijuana

during the search. Sergeant Ewing applied for search warrants for various cellular

telephones, including the victim’s and the defendants’ telephones, and served those

warrants on “the various media companies.” He also served Facebook with a search

warrant for the Appellant’s account. Sergeant Ewing received records from cellular

telephone providers and Facebook. The Appellant was arrested in Chicago and was

returned to Montgomery County. He waived his rights and spoke with Sergeant Ewing but

claimed he was in Chicago at the time of the victim’s death.

On cross-examination, Sergeant Ewing testified that he developed the Appellant as

a suspect by speaking with Gough. Sergeant Ewing denied that he had decided the case

involved a robbery before he even spoke with Gough. Sergeant Ewing asked Gough if a

robbery had occurred and asked Gough “to explain if him or [Marqus] Bryant were

involved in a robbery, to tell the truth.” Gough tried to deny a robbery, so Sergeant Ewing

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told Gough that he thought the defendants planned to rob the victim and ended up shooting

the victim. Gough denied that the defendants planned to rob the victim.

Sergeant Ewing testified that Gough’s interview lasted several hours and that Gough

lied during the interview. Sergeant Ewing denied threatening Gough but said he told

Gough “something about [Marqus] Bryant indicating that [Gough] was in the car with the

victim when the victim was shot.” The defendants allegedly met the victim to buy two

ounces of marijuana, but only 1.69 ounces of marijuana were recovered from Raylonde’s

apartment. Sergeant Ewing acknowledged that the defendants left “plenty of valuables” in

the victim’s car after the shooting such as the victim’s wallet, money, iPhone, and gun.

Sergeant Ewing also acknowledged that the victim’s gun was loaded. On redirect-

examination, Sergeant Ewing acknowledged that the Appellant received death threats on

social media after the shooting and that the Appellant posted responses to some of those

threats.

Jessica Hudson of the Tennessee Bureau of Investigation (TBI) testified as an expert

in firearm and tool mark identification that she examined the P95 Ruger found in the

victim’s car and the Highpoint .40 caliber handgun found in Raylonde’s apartment. Both

of the guns were functional. Hudson also examined the .380 caliber cartridge case found

at the scene and a .380 caliber bullet recovered from the victim. Neither was fired from

the Ruger or the Highpoint.

Special Agent Forensic Scientist Kyle Osborne of the TBI testified as an expert in

microanalysis that the following areas of the black Charger were swabbed for gunshot

residue: (1) the interior of the driver’s door, (2) the steering wheel, (3) the gear shift, (4)

the interior of the driver-side rear door, (5) the interior of the passenger-side rear door, and

(6) the interior of the passenger-side front door. Agent Osborne analyzed the swabs and

found gunshot residue only on the passenger-side rear door.

Christie Wixson, an analyst with the Regional Organized Crime Information Center,

testified that she analyzed the cellular telephone and Facebook records obtained by

Sergeant Ewing. At 3:00 p.m. on December 24, the Appellant’s cellular telephone was in

Clarksville. That evening and into the early morning hours of December 25, the telephone

traveled to the Chicago area. Wixson identified Facebook messages sent from the

Appellant’s account. At 1:36 a.m. on December 23, 2016, the Appellant sent, “Aw. Well

I got da loud on deck. 15 a g. 40 a 3.5.” At 1:40 a.m., the Appellant sent, “Loud on deck.

15 a g. 40 a 3.5.” At 1:41 and 1:49 a.m., the Appellant sent the following message to a

group of individuals: “15 a g. 40 a 3.5. New Shipment.” At 1:43 a.m., the Appellant sent

the following message to an individual: “15 a g. 40 a 3.5. New Shipment.” At 4:08 p.m.

on December 24, the Appellant sent, “[N*GGAS] SNITCHED!!” On December 25 at

11:04 a.m., the Appellant sent, “They charged dem [n*ggas].”

- 12 -

The State recalled Sergeant Ewing to the stand. Sergeant Ewing testified that high-

grade marijuana was commonly referred to as “loud.” He said that “15 a g. 40 a 3.5” meant

that the Appellant was “selling it for $15 for a gram or $40 for 3.5 grams or an eight ball.”

At the conclusion of Sergeant Ewing’s testimony, the State rested its case.

The Appellant testified that he used to sell marijuana and that he was “running low”

on December 22, 2016. His usual supplier was unavailable, so he asked Gough to “hook

me up with somebody.” The codefendants picked up the Appellant and drove him to buy

marijuana from “Scrap.” Bryant was in the driver’s seat, Gough was in the front passenger

seat, and the Appellant was in the rear passenger seat. They went to the Circle K, followed

the victim to the apartment complex on Royster Lane, and “backed in” beside the victim’s

car. Gough got out of Bryant’s Charger and got into the victim’s car while the Appellant

remained in the Charger. The Appellant sent a text message and got out of the Charger.

The Appellant had his “[Ruger] 38” in the pocket of his hoodie and walked to the driver’s

side of the victim’s car. The Appellant explained, “I was the one with the money and I was

the one who was actually supposed to [be] buying weed from the dude. So, . . . I was just

going to introduce myself.”

The Appellant testified that the victim opened his driver’s door and “put his foot

out.” The bag of marijuana was on Gough’s lap. The victim and the Appellant introduced

themselves, and the Appellant “quoted him a price.” Their conversation became “heated”

and “turned into a dispute.” The Appellant “quoted another price,” and the victim “started

to get irritated.” The victim “reached down” and said, “‘You all don’t know who you all

are messing with.’” The Appellant said that the victim “grabbed the gun” and that “it was

on.” The Appellant fired one shot at the victim. Gough had the bag of marijuana, and

Gough and the Appellant got back into Charger. Gough told the Appellant, “‘I don’t know

what all to tell Tragic.’” The Appellant did not know who Tragic was. Bryant dropped off

the Appellant where Bryant had picked up the Appellant earlier. The Appellant said that

he never touched the victim’s marijuana, that he never went to Raylonde’s apartment on

December 22 or 23, and that the case never involved a robbery.

The Appellant testified that he went to Chicago on December 24 because he thought

he “needed to . . . get away from here and just try to get some money to get a lawyer to try

to explain what really happened, instead of just going to jail for somebody saying that I

killed this guy.” The Appellant told his sister, “Man, some dude got killed and these two

guys that I’m messing with got caught for it. They saying he got robbed and I killed him.”

The Appellant admitted to his sister that he killed the victim, but he did not say anything

to her about robbing the victim. His sister “misinterpreted” what he said. People began

posting threats to the Appellant and his family on his Facebook page. The Appellant said

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that the posts “kind of pushed [me] over the edge” and that he decided to respond “to try

to antagonize these people just as much as they was antagonizing me.”

The Appellant acknowledged that he contacted Raylonde after the shooting. The

Appellant wanted Raylonde “to get in contact with [Gough] and let him know that he

needed to tell these people the truth.” The Appellant was not trying to get Gough to lie for

him.

On cross-examination, the Appellant testified that when the victim reached for the

victim’s gun, the Appellant pulled out his own gun, pointed it at the victim, and pulled the

trigger. The Appellant was standing above and to the side of the victim, and the victim’s

hand was on the victim’s gun at the time of the shooting. The Appellant acknowledged

telling Sergeant Ewing that he was in Chicago at the time of the victim’s death and that he

did not explain to Sergeant Ewing what happened. He also acknowledged that soon after

the victim’s death, he posted messages on Facebook about having “loud” for sale.

On redirect examination, defense counsel asked the victim, “And where did the

marijuana that you were trying to sell on Facebook come from?” The Appellant answered,

“I got it, along with the weed that I had, from my prior transactions. I got more from him

that night, before I pulled up and went home.” The Appellant said that the defendants

never planned to take the victim’s marijuana without paying for it.

At the conclusion of the proof, the jury convicted the Appellant as charged of first

degree felony murder and aggravated robbery, a Class B felony. After a sentencing

hearing, the trial court sentenced him to consecutive terms of life and nine years,

respectively.

II. Analysis

A. Sufficiency of the Evidence

The Appellant acknowledges that he shot the victim but contends that the evidence

is insufficient to support his convictions because the proof fails to show that he shot the

victim during a robbery. In support of his argument, the Appellant asserts that Gough, “an

admitted liar,” was the only witness who testified about a robbery, that the codefendants

“avoided life sentences by conforming their testimony to the State’s theory of the case,”

and that the proof shows he defended himself when the victim reached for the victim’s gun.

The State argues that the evidence is sufficient. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the

standard for review by an appellate court is “whether, after viewing the evidence in the

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light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate

view of the evidence and all reasonable or legitimate inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning

the credibility of witnesses and the weight and value to be afforded the evidence, as well

as all factual issues raised by the evidence, are resolved by the trier of fact. State v. Bland,

958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence,

nor will this court substitute its inferences drawn from the circumstantial evidence for those

inferences drawn by the jury. Id. Because a jury conviction removes the presumption of

innocence with which a defendant is initially cloaked at trial and replaces it on appeal with

one of guilt, a convicted defendant has the burden of demonstrating to this court that the

evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140

(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and

‘[t]he inferences to be drawn from such evidence, and the extent to which the circumstances

are consistent with guilt and inconsistent with innocence, are questions primarily for the

jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313

S.W.2d 451, 457 (Tenn. 1958)). “The standard of review ‘is the same whether the

conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)).

First degree felony murder in this case is the “killing of another committed in the

perpetration of . . . any . . . robbery.” Tenn. Code Ann. § 39-13-202(a)(2). “No culpable

mental state is required for conviction . . . except the intent to commit the [underlying

felony].” Tenn. Code Ann. § 39-13-202(b). The trial court instructed the jury on the

underlying felony of aggravated robbery. Relevant to 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” and accomplished with a deadly weapon or where the victim suffers

serious bodily injury. Tenn. Code Ann. §§ 39-13-401(a), -403(a).

Taken in the light most favorable to the State, the evidence shows that Gough

arranged to buy marijuana from the victim. Prior to the transaction, Bryant and Gough

picked up the Appellant. The three defendants then met the victim at the Circle K and, at

the victim’s request, followed him to his apartment complex. Bryant parked the Charger

beside the victim’s Hyundai, and Gough got into the front passenger seat of the victim’s

car to conduct the transaction. At some point, the Appellant got out of the Charger and

went to the driver’s side of the Hyundai. Gough testified that the Appellant, on his own

- 15 -

accord, shot the victim during the drug buy and took the victim’s marijuana. Gough also

testified that the victim never reached for the victim’s gun. Bryant testified that only a

drug transaction was supposed to occur, that he heard a gunshot, and that he saw the

Appellant holding the bag of marijuana when the Appellant ran back to the Charger. Bryant

acknowledged telling the police that Gough was holding the bag after the shooting. While

all three of the defendants testified that they did not plan to rob the victim, the Appellant’s

own sister testified that the Appellant said they planned a robbery. Moreover, although the

Appellant testified that he was “running low” on marijuana before the shooting and that he

did not touch the victim’s marijuana after the shooting, he announced via messages on

Facebook that he had a “new shipment” of marijuana for sale just thirty minutes after the

victim’s death. The jury, as was its prerogative, obviously accredited the testimony of at

least some of the State’s witnesses and resolved any inconsistencies as to whether the

robbery was planned, either by the defendants or the Appellant alone, in favor of the State.

Therefore, we conclude that the evidence is sufficient to support the convictions.

B. Cellular Telephone and Facebook

The Appellant claims that the trial court erred by allowing the State to introduce

evidence from a cellular telephone and a Facebook account because the evidence was not

admissible pursuant to Tennessee Rules of Evidence 403 and 901. The State argues that

the trial court did not abuse its discretion by admitting the evidence. We agree with the

State.

The record contains search warrants for four cellular telephone numbers, including

telephone number (xxx) xxx-7463, and a search warrant for the Facebook account of “Delo

Berry.” In the affidavits attached to the search warrants, Sergeant Ewing set out the facts

of the shooting and stated as follows: During an interview with Gough, Gough explained

“Delo’s” involvement. Gough consented to a search of his cellular telephone. The search

revealed communications between Gough and the victim and Gough and “Delo” before the

shooting. The telephone number listed for “Delo” in Gough’s telephone was (xxx) xxx-

7463. The police showed a photograph of the Appellant to Gough, and Gough confirmed

that the Appellant was “Delo.” On December 28, 2016, Sergeant Ewing observed screen

shot images that appeared to show Facebook messages posted by “Delo Berry.” The

messages also appeared to reference the victim’s “homicide” and appeared to “taunt” the

victim’s friends and family. The Facebook account showed a profile picture that appeared

to be the Appellant.

On June 6, 2018, the Appellant filed a motion in limine, requesting that the trial

court prohibit any evidence associated with telephone number (xxx) xxx-7463 and the

Facebook account of “Delo Berry” pursuant to Tennessee Rules of Evidence 403 and 901.

Regarding the telephone, the Appellant asserted that the records obtained by the police

- 16 -

showed that the telephone was registered to Esmine Reese, not the Appellant. Regarding

the Facebook account, the Appellant asserted that “the State has failed to authenticate that

any statements included in the Facebook records it seeks to introduce were, in fact,

statements made by Mr. Berry.”

During a hearing on the motion, defense counsel advised the trial court that “there

are around five hundred pages worth of [F]acebook records, and I’m not sure how many

pages of [telephone] texts.” Defense counsel presented a copy of the T-Mobile records for

telephone number (xxx) xxx-7463 to the trial court, and the trial court admitted the records

into evidence as an exhibit. The State acknowledged that the telephone records showed

that the telephone number was registered to Esmine Reese. However, the State advised the

trial court that it had been unable to locate Reese and that “[w]e don’t know that she even

exists for that matter.” The State also advised the trial court that it was not going to use

the T-Mobile records to show that the telephone at issue belonged to the Appellant; instead,

the State was going to use “the cell phone connections to all the different individuals” to

show that the telephone belonged to the Appellant. As an example, the State noted that

telephone number (xxx) xxx-7463 was listed in Gough’s telephone under the Appellant’s

nickname, “Delo,” and that Gough would testify at trial that he used that telephone number

to contact the Appellant. As to the Facebook account, the State advised the trial court that

marijuana was stolen during the shooting, that “Delo Berry” posted soon after the shooting

that he was selling marijuana, and that Delo Berry said he could be contacted at telephone

number (xxx) xxx-7463.

No witnesses testified at the hearing. At the conclusion of the hearing, the trial court

stated that “it is not uncommon for text messages and cell phone records . . . for those to

be generated by individuals other than that person to whom the cell phone is listed as being

the registered owner.” The trial court stated that the admissibility of the Facebook records

was “a little different in that . . . there is always the possibility that a [F]acebook post is as

a result of a hack” but that the defense could make that argument at trial. The trial court

found that the text and Facebook messages had “probative value” and concluded that they

should not be excluded under Tennessee Rule of Evidence 403.

Tennessee Rule of Evidence 403 provides that even relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Tennessee Rule of

Evidence 901 provides that “[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to the court to

support a finding by the trier of fact that the matter in question is what its proponent

claims.” State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996). One method of

authentication is testimony by a witness with knowledge “that a matter is what it is claimed

- 17 -

to be.” Tenn. R. Evid. 901(b)(1). Whether evidence has been sufficiently authenticated is

within the trial court’s sound discretion, and its decision will not be overturned absent an

abuse of discretion. See State v. Mickens, 123 S.W.3d 355, 376 (Tenn. Crim. App. 2003).

At trial, Marqus Bryant testified that he knew the Appellant as “Delo.” Raylonde

Bryant, the Appellant’s cousin, also knew the Appellant as “Delo.” Robert Gough testified

that he had known the Appellant about six months at the time of the shooting and that he

communicated with the Appellant by cellular telephone. Gough said that the Appellant

was listed in Gough’s telephone as “Delo,” and Gough identified the Appellant’s telephone

number as xxx-xxx-7463. Sergeant Beebe testified that he searched Gough’s telephone

and found text messages exchanged between Gough and the victim and exchanged between

Gough and “Delo” before the shooting. The text messages exchanged between Gough and

the victim occurred about the same time as the text messages exchanged between Gough

and Delo and appeared to relate to a drug transaction Gough was arranging with the victim.

The Appellant’s sister testified that the Appellant came to visit her in Chicago after the

shooting. Christie Wixson testified that she analyzed the cellular telephone activity for

telephone number (xxx) xxx-7463; the telephone was in Clarksville on the afternoon of

December 24 but was in Chicago on the morning of December 25. Therefore, we conclude

that the State authenticated the telephone as belonging to the Appellant. Moreover, the text

messages sent before and after the shooting were probative to the State’s case. Thus, we

also conclude that the probative value of the evidence was not substantially outweighed by

the danger of unfair prejudice and that the trial court did not err by admitting the text

messages from the telephone into evidence.

As to the Facebook messages, in State v. Jabriel Linzy, No. E2016-01052-CCA-R3-

CD, 2017 WL 3575871 (Tenn. Crim. App. at Knoxville, Aug. 18, 2017), the State sought

to introduce messages found on Facebook and Twitter. Id. at *13. The messages reflected

that the defendant and the victim were members of rival gangs and that the defendant had

issued threats against the victim. Id. at *13. The defendant argued that the comments could

not be attributed to him; in other words, the comments could not be authenticated. Id. at

*11. This court stated that “evidence from social media and emails was authenticated when

the prosecution offered corroborating circumstantial evidence.” Id. at *12. The

corroborating circumstantial evidence consisted of a witness who knew the defendant’s

Twitter account, a witness who knew the victim’s Twitter account, and witnesses who had

seen certain photographs on the defendant’s and the victim’s Facebook pages. Id. at *13.

However, we cautioned that “‘[t]o the extent that the [d]efendant argues that the State was

required to affirmatively prove that the [d]efendant was the author of the message, we agree

with reasoning from other jurisdictions that such challenge goes to the weight of the

evidence, not its admissibility.’” Id. at *12 (quoting State v. Vermaine M. Burns, No.

M2014-00357-CCA-R3-CD, 2015 WL 2105543, at *12 (Tenn. Crim. App. at Nashville,

May 5, 2015)).

- 18 -

Elaine Bryant, the Appellant’s cousin, testified under subpoena that the Appellant

was her Facebook “friend” and that she “could read what he wrote and what people wrote

on his page.” She stated that she saw “some stuff on his [Facebook] page” related to the

shooting and that she saw the Appellant “arguing with people, saying, ‘Oh, well, it ain’t

my fault. He’s dead now. What you want me to do,’ etcetera, etcetera.” Ms. Bryant said

she recognized the Appellant’s Facebook messages because his photograph was on his

messages. At that point in Ms. Bryant’s testimony, the State showed her a document. Ms.

Bryant identified the document as a “snapshot” of a message posted by “Delo Berry,” who

was the Appellant. She said she recognized the message as posted by the Appellant because

“[t]hat’s his Facebook name” and because his photograph was on the message. She stated,

“Yes, that’s his page and that’s his face.” Wixson testified that she analyzed the Facebook

records for “Delo Berry” that were obtained from Sergeant Ewing’s search warrant. The

messages advertised marijuana for sale and were posted soon after the defendants took two

ounces of marijuana from the victim. Therefore, we conclude that there was ample

evidence to authenticate the messages. Moreover, the evidence was probative to the State’s

theory that the Appellant planned to rob the victim. Accordingly, we agree with the trial

court that the probative value of the evidence was not substantially outweighed by the

danger of its prejudicial effect. The Appellant is not entitled to relief on this issue.

C. Rifle

Next, the Appellant contends that the trial court should have declared a mistrial

when Gough sua sponte testified that the Appellant had an assault rifle at the time of the

shooting. The Appellant claims that Gough’s “surprise testimony” about the rifle was

never mentioned in discovery and “constitutes an inherently improper ‘trial by ambush.’”

The Appellant acknowledges that defense counsel did not object to Gough’s testimony or

move for a mistrial and requests that we review this issue for plain error. The State

contends that the Appellant cannot show that an unequivocal rule of law was breached

because Gough referred to the rifle as an “A.R. .22 rifle,” not an “A.R. .22 assault rifle.”

The State also contends that the Appellant cannot establish that defense counsel did not

waive an objection to Gough’s testimony for tactical reasons. We conclude that the

Appellant has failed to establish plain error.

Gough testified that after he got into the victim’s car to buy marijuana from the

victim, the Appellant walked to the driver’s side window, tapped on the window with “[a]n

A.R. .22 rifle,” and started to rob the victim. The victim told the Appellant to take the

marijuana, but the Appellant pointed the rifle at the victim and pulled the trigger. The rifle

did not fire, so the Appellant threw down the gun, pulled out “his little .380,” and shot the

victim. Defense counsel did not object to Gough’s testimony about the rifle or request a

mistrial.

- 19 -

A mistrial should be declared in criminal cases only in the event that a manifest

necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim.

App. 1991). In other words, a mistrial is an appropriate remedy when a trial cannot

continue or a miscarriage of justice would result if it did. State v. McPherson, 882 S.W.2d

365, 370 (Tenn. Crim. App. 1994). Because the Appellant failed to object at trial or request

a mistrial, we can only consider the issue for plain error. See State v. Vance, 596 S.W.3d

229, 253 (Tenn. 2020) (stating that “[t]he clear implication of [Tennessee Rule of

Evidence] 103(d) is that evidentiary objections not brought to the trial court’s attention at

the appropriate time will not be considered under plenary review”). Before plain error may

be recognized, the error must be “an especially egregious error that strikes at the fairness,

integrity, or public reputation of judicial proceedings.” State v. Adkisson, 899 S.W.2d 626,

639 (Tenn. Crim. App. 1994); see also Tenn. R. App. P. 36(b). In Adkisson, this court

listed the following factors to be considered in determining whether to address plain error:

(a) the record must clearly establish what occurred in the trial court; (b) a clear and

unequivocal rule of law must have been breached; (c) a substantial right of the accused

must have been adversely affected; (d) the accused did not waive the issue for tactical

reasons; and (e) consideration of the issue is necessary to do substantial justice. Id. at 641-

42.

We note that “[t]he rules concerning discovery were promulgated to allow the

parties to ascertain relevant facts pertaining to their case, thus narrowing the issues in order

to reach a decision on the merits without ‘trial by ambush.’” Austin v. City of Memphis,

684 S.W.2d 624, 632 (Tenn. Ct. App. 1984)). In this case, though, the Appellant received

Gough’s police interview during discovery, and nothing indicates that Gough ever told the

police about the Appellant’s having any kind of rifle on the night of the shooting or that

the State was aware of such evidence. Therefore, the Appellant has failed to show that an

unequivocal rule of law was breached.

Moreover, defense counsel cross-examined Gough about his failure to tell the police

that the Appellant’s had the rifle and used Gough’s failure to mention the rifle previously

during defense counsel’s closing argument. Specifically, defense counsel argued to the

jury as follows:

Just yesterday, [Mr. Gough] added new details to his story. You heard

him. He admitted on the stand that he had never mentioned before an A.R.

22 rifle. That was the first that any of us had heard of that. And then he said

that Mr. Berry was present at Raylonde’s house that evening.

And not even an hour later, Raylonde Bryant got on the stand and said,

“Mr. Berry was never there.”

- 20 -

If Mr. Gough can’t get his story straight about little details that don’t

really matter, why can we believe him about the big ones that do?

Thus, we agree with the State that the Appellant also has failed to show that he did not

waive the issue for tactical reasons. The Appellant is not entitled to plain error relief.

D. Excessive Sentence

Finally, the Appellant claims that his sentence of life plus nine years is excessive

because the trial court erred by ordering consecutive sentencing. The State argues that the

trial court properly ordered consecutive sentencing. We agree with the State.

At the Appellant’s sentencing hearing, Barbara Gordon, the victim’s mother,

testified that the victim was twenty-three years old at the time of his death and that he had

a daughter, who was seven years old at the time of the sentencing hearing. Ms. Gordon

described the victim as “a good boy,” “a good son,” and “an awesome baseball player.”

She said that the victim’s father and grandparents raised him and that “[t]hey did an

awesome job.” The victim was very respectful, loved his family, and served in the United

States Army for almost three years. Ms. Gordon said that the victim’s death “turned [her]

world upside down” and that she suffered from anxiety, depression, and panic attacks. His

death also affected her relationship with her two other children because she was “constantly

crying and letting them see that.” Ms. Gordon stated that the Appellant should spend the

rest of his life in prison.

Frederick Ferguson, the victim’s father, testified that he raised the victim and that

the victim was his best friend. He stated that his “world ended” when he learned about the

victim’s death and that “this cowardly act by this individual, Deangelo Berry, has ruined

my life.” Mr. Ferguson’s father “passed” three weeks after the victim’s death, and Mr.

Ferguson suffered a stroke due to his depression and grief. He also “watched [the victim’s

mother] spiral out of control.” Mr. Ferguson stated that the Appellant “should never see

the outside of a prison cell ever again” and that the Appellant “is a waste and now the great

citizens of Tennessee will have to pay for that waste.”

The Appellant made a brief allocution in which he apologized to the victim’s

mother. The Appellant stated that he “didn’t do this for no reason” and that “[i]t was a bad

situation and the outcome of this situation just turned out to be something that everybody

had to deal with in a negative way. It was nothing meant to happen the way it happened at

all.”

- 21 -

The State introduced the Appellant’s presentence report into evidence. According

to the report, the then twenty-two-year-old Appellant was expelled from school in the

eighth grade “due to juvenile charges” but earned his GED in 2013. In the report, the

Appellant said that he was married but estranged from his wife and that he had a three-

year-old daughter by another woman. He described his physical heath as “good” and his

mental health as “fair” due to “bipolar, anxiety, ADHD.” The Appellant stated that he

consumed his first alcoholic drink when he was ten years old and began drinking more

frequently when he was fourteen years old. The Appellant stated that he began smoking

marijuana when he was twelve years old and that he smoked six to seven “blunts” per day.

The Appellant said that he also used Ecstasy and that he consumed about ten pills per day.

The Appellant stopped using drugs when he was jailed in this case. Regarding

employment, the report stated as follows:

Defendant reported that he never worked. He hung out on the streets and

made what ever money he needed there. He did not go into details other

[than] to admit that he sold drug[s] when needed.

....

Defendant reported that he has not had a job. When asked how he makes

money he said he did whatever it took sometimes selling drugs. Other times

the street family took care of him.

The report showed that the Appellant was adjudicated delinquent of truancy and

probation violations in Chicago, and the State submitted certified copies of judgments of

convictions for the following misdemeanors as an adult: theft and evading arrest in

Montgomery County and failure to stop after an accident, simple possession, theft, and

domestic battery in Tippecanoe County, Indiana. The Appellant was serving unsupervised

probation at the time of the offenses in this case. The Appellant’s Strong-R assessment

concluded that he had low needs relevant to “Friends,” “Attitudes/Behaviors,” and

“Family”; that he had moderate needs relevant to “Aggression,” “Alcohol/Drug Use,”

“Residential,” and “Education”; and that he had high needs relevant to “Employment.”

The State argued that the trial court should apply certain enhancement factors and

order consecutive sentencing based on the Appellant’s being “a professional criminal.”

The State noted that the Appellant was a young man but that “his own statement in the

presentence report is the only way he’s earned money is by selling drugs.” The State also

argued that consecutive sentencing was appropriate due to the Appellant’s being a

dangerous offender.

- 22 -

The trial court applied the following enhancement factors to the Appellant’s

sentences: (1) “[t]he defendant has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range”; (8) “[t]he

defendant, before trial or sentencing, failed to comply with the conditions of a sentence

involving release into the community”; and (10) “[t]he defendant had no hesitation about

committing a crime when the risk to human life was high.” Tenn. Code Ann. § 40-35-

114(1), (8), (10). The trial court found that no mitigating factors were applicable and

sentenced the Appellant to life for first degree murder and to nine years as a Range I,

standard offender for aggravated robbery, a Class B felony. The trial court found that the

Appellant was a professional criminal and a dangerous offender and ordered that he serve

the nine-year sentence consecutive to the life sentence. See Tenn. Code Ann. § 40-35-

15(b)(1), (4).

This court reviews the length, range, and manner of service of a sentence imposed

by the trial court under an abuse of discretion standard with a presumption of

reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v. Pollard,

432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to consecutive sentencing). In

determining a defendant’s sentence, the trial court considers the following factors: (1) the

evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;

(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature

and characteristics of the criminal conduct involved; (5) evidence and information offered

by the parties on enhancement and mitigating factors; (6) any statistical information

provided by the administrative office of the courts as to sentencing practices for similar

offenses in Tennessee; (7) any statement by the defendant in his own behalf; and (8) the

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

contained in the presentence report. See Tenn. Code Ann. § 40-35-210(b); see also Bise,

380 S.W.3d at 697-98. Moreover, consecutive sentencing is “guided by the general

sentencing principles providing that the length of a sentence be ‘justly deserved in relation

to the seriousness of the offense’ and ‘no greater than that deserved for the offense

committed.’” State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (citing Tenn. Code Ann.

§§ 40-35-102(1), -103(2)). The burden is on the Appellant to demonstrate the impropriety

of his sentence. See Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts.

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may

order consecutive sentencing if the court finds by a preponderance of the evidence that

“[t]he defendant is a professional criminal who has knowingly devoted the defendant’s life

to criminal acts as a major source of livelihood” or “[t]he defendant is a dangerous offender

whose behavior indicates little or no regard for human life and no hesitation about

committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-

115(b)(1), (4). If the trial court finds that a defendant is a dangerous offender, the trial

court must find that “(1) the sentences are necessary in order to protect the public from

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further misconduct by the defendant and (2) ‘the terms are reasonably related to the severity

of the offenses.’” State v. Moore, 942 S.W.2d 570, 574 (Tenn. Crim. App. 1996) (quoting

State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)). Trial courts must make specific

findings regarding these Wilkerson factors before imposing consecutive sentences. State

v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

In ordering consecutive sentencing, the trial court stated as follows:

[T]he presentence report reflects that the Defendant has never held a job.

When he needs money, he would sell some weed. Therefore, I find that sub-

section (1), that the Defendant is a professional criminal who has knowingly

devoted the Defendant’s life to criminal acts as a major source of livelihood.

I recognize he is a young man, but we have before us then is his total work

life, and it involves selling drugs. Sub-section (4) provides the Defendant is

a dangerous offender whose behavior indicates little or no regard for human

life and no hesitation about committing a crime in which the risk to human

life is high. Clearly, clearly, that was the circumstances in this case. Given

the location of the -- I remember the trial well, given the results of the

autopsy, the entrance location of the round that killed the victim; therefore, I

am going to order that the sentence in Count Two, aggravated robbery, will

run consecutive to the life sentence in Count One.

The Appellant contends that the trial court’s finding him to be a professional

criminal was “weak on substance and justification” and that his “small marijuana sales”

did not “automatically equate” him to being a professional criminal. The Appellant also

contends that in classifying him as a dangerous offender, the trial court failed to address

the Wilkerson factors.

We conclude that the trial court did not abuse its discretion by ordering consecutive

sentencing based upon the Appellant’s being a professional criminal who has knowingly

devoted the defendant’s life to criminal acts as a major source of livelihood. Granted, the

Appellant was a young man at the time of the crimes and at the time of sentencing, just

twenty and twenty-two years old, respectively. However, the Appellant, who was married

and had a young child, admitted that he had never held a job, that he “hung out on the

streets,” and that he “sold drug[s] when needed.” This court has held that similar

admissions by a young defendant supported a trial court’s conclusion that the defendant

knowingly devoted his life to criminal activity as a major source of livelihood. See State

v. Christopher Lee Davis, No. M2012-01546-CCA-R3-CD, 2013 WL 3808209, at *8

(Tenn. Crim. App. at Nashville, July 18, 2013) (stating that trial court did not err by

ordering consecutive sentencing when defendant, who was nineteen years old at the time

of the crimes, admitted that he had never held a job and had sold drugs “to get by”). A trial

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court may impose consecutive sentencing after finding any one of the factors listed in

Tennessee Code Annotated section 40-35-115(b). Id. Therefore, because the trial court’s

order of consecutive sentencing did not hinge solely on the dangerous offender criteria, the

trial court’s failure to address the Wilkerson factors was harmless error. See Tenn. R. App.

P. 36(b).

III. Conclusion

Based upon the record and the parties’ briefs, we find no reversible error and affirm

the judgments of the trial court.

_____________________________

NORMA MCGEE OGLE, JUDGE

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