State of Tennessee v. Guillermo Zapata

                                                                                          12/13/2023
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 7, 2023

              STATE OF TENNESSEE v. GUILLERMO ZAPATA

                 Appeal from the Criminal Court for Shelby County
                    No. 12-04926       Paula L. Skahan, Judge
                     ___________________________________

                           No. W2023-00111-CCA-R3-CD
                       ___________________________________

The Defendant, Guillermo Zapata, was convicted in the Shelby County Criminal Court of
two counts of aggravated sexual battery, a Class B felony. After a sentencing hearing, the
trial court merged the convictions and sentenced him to seven years, two months, and
twelve days in confinement. On appeal, the Defendant contends that the evidence is
insufficient to support the convictions, that the trial court erred by denying his motion to
dismiss the indictment based on due process and speedy trial grounds, and that the trial
court erred by instructing the jury on flight. Based upon our review, we affirm the
judgments of the trial court.

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

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, P. J., and JILL BARTEE AYERS, J., joined.

James M. Gulley (on appeal and at trial), Memphis, Tennessee, for the appellant,
Guilleramo Zapata.

Jonathan Skrmetti, Attorney General and Reporter; Abigail H. Rinard, Assistant Attorney
General; Steve Mulroy, District Attorney General; and Lessie Rainey, Regina Lucreziano,
Jeff Jones, and Danielle McCollum, Assistant District Attorneys General, for the appellee,
State of Tennessee.

                                        OPINION

                                         FACTS

       In September 2012, the Shelby County Grand Jury returned a two-count indictment,
charging the Defendant with rape of a child, a Class A felony, in count one and the
alternative theory of aggravated sexual battery when the victim was less than thirteen years
old, a Class B felony, in count two. The indictment alleged that the offenses occurred
between May 1, 2010, and July 15, 2010. The Defendant was arrested in August 2018 and
in October 2018, filed a motion to dismiss the indictment based on due process and speedy
trial grounds. The trial court denied the motion on June 2, 2020, and the Defendant
proceeded to trial on November 1, 2022.

       At trial, the victim’s mother [EE]. testified that she had four children: her oldest
daughter, the victim, who was nineteen years old; two sons, who were seventeen and fifteen
years old; and another daughter, who was six years old. 1 The Defendant was the brother
of the victim’s father, the brother-in-law of EE, and was the victim’s uncle. The victim’s
mother said that she had known the Defendant about sixteen years and that his nickname
was “Memo.”

      E.E. testified that in 2007 and 2008, her family, which at that time included her
husband and three oldest children, was living in an apartment in Hickory Hill. The
Defendant lived with them. About a year later, E.E.’s family moved into a house on
Hopewell Road. E.E.’s sons slept in one bedroom, the victim slept in another bedroom,
and E.E. and her husband slept in the third bedroom. The Defendant did not live with them
on Hopewell Road but would spend the night at their house sometimes so he could go to
work with E.E.’s husband the next day.

       E.E. testified that in January 2011, she walked into the victim’s bedroom
unannounced and saw the victim, who was seven years old, “touching herself.” The victim
was clothed and “moved her hand like she was scared.” E.E. was worried and asked the
victim if anyone had touched her. The victim nodded yes. E.E. “asked who,” but the
victim would not answer and “stayed frozen.” E.E. began naming men, “trying to get it
out of her.” E.E. first named her father, the victim’s grandfather. She then named her
husband, the victim’s father. She also named two of the victim’s uncles. Each time, the
victim said no. E.E. finally asked the victim, “Memo?” The victim started crying and said
yes. E.E. hugged the victim and told the victim that she was “sorry this happened.”

        E.E. testified that she felt angry and betrayed by the Defendant and that she
telephoned the police. She also telephoned her husband and told him what the Defendant
had done to the victim. The police were supposed to come to E.E.’s house. E.E. wanted
the Defendant to be there so the police could arrest him, so she telephoned the Defendant
and tried to trick him into coming to her home by inviting him to a cookout. The Defendant
said he would come but never showed up. E.E. did not see him again until 2017 or 2018
when she unexpectedly saw him at a restaurant, Incredible Pizza. She said that prior to the
victim’s allegations, she usually saw the Defendant every week.

      1
          In order to protect the victim’s identity, we will refer to some of the witnesses by their initials.
                                                     -2-
       E.E. testified that the police arrived at her home and that she told them what had
happened to the victim. She stated, “And I had probably better details back then because
I remembered everything at the time.” E.E. later took the victim to the Child Advocacy
Center (“CAC”) for a forensic interview, and the victim received counseling for about a
year. E.E. said the victim used to “get along great” with the Defendant. E.E. recalled,
though, that she noticed the victim’s behavior toward the Defendant changed at some point.
She explained that the victim would become “upset” when the Defendant came to their
house. The victim also did not want to hug the Defendant, which bothered E.E. because
she thought the victim was being disrespectful to him. E.E. said she noticed the change in
the victim’s behavior during the summer of 2010. The victim told E.E. that she had
revealed the abuse to a friend who came over to play with the victim. E.E. recalled that
the victim’s friend came over to play in the summer of 2010.

       On cross-examination, E.E. acknowledged that by “touching herself,” she meant the
victim was masturbating. E.E. said that she “didn’t know if [the victim] was just trying to
explore or something had happened” and that she “wanted to get to the bottom of it.” E.E.
began naming males who had been in close contact with her children, and her conversation
with the victim lasted ten to fifteen minutes.

        Defense counsel questioned E.E. about an incident between her husband and her
sister. E.E. explained that one time when she and her husband were dating, he put his arm
around her and was touching her sister’s breast instead of E.E.’s breast. E.E. described the
incident as a “misunderstanding.” She said she did not remember if she told the police that
the incident between the Defendant and the victim occurred in the summer of 2010, and
she acknowledged that the incident could have happened at a different time. However, she
then said that she was sure the incident happened in the summer of 2010 because the victim
disclosed the abuse to a neighborhood friend. The victim’s friend came over to play in the
summer of 2010.

        E.E. testified that she did not remember if she gave a written statement to the police
or if she told the police that the Defendant pulled down the victim’s pants. She also did
not remember if she gave a statement at the CAC or if the victim received a medical
examination. E.E. said she did not think she told the police about seeing a change in the
victim’s demeanor. E.E. and the Defendant had a good relationship prior to the victim’s
allegations. E.E. never suspected him of abusing the victim, and he was the last man E.E.
named to the victim.

        The victim testified that she was a nursing student at the University of Memphis and
that she “used to call [the Defendant] Memo.” When the victim was seven years old, her
family lived in a three-bedroom house on Hopewell Road in East Memphis. The victim
slept in one bedroom, her two brothers slept in another bedroom, and her parents slept in
                                            -3-
the third bedroom. However, the children liked sleeping with their mother, and each sibling
would take turns sleeping with her. The Defendant did not live with them but “slept over
at times.”

       The victim testified that one night when the Defendant spent the night, she was
asleep in her bed with one of her brothers while her other brother was sleeping with their
mother. The Defendant was sleeping on the couch. The victim said the Defendant carried
her from her bedroom to her brothers’ bedroom, laid her on her brothers’ bed, and “started
to touch me down there” with his fingers. She said that she kept her eyes closed because
she did not know what was happening and that the Defendant touched her “on [her]
vagina.” The victim was wearing underwear when she went to bed, but the victim realized
during the incident that her underwear was off. The State asked if the Defendant touched
the inside or the outside of her vagina, and the victim said he touched between the “lips”
of her vagina but not inside her “hole.” The Defendant did not say anything to the victim,
and the victim pretended to be asleep because she was scared. The victim continued to
keep her eyes closed but “kind of peeked up a little bit at times when he was looking down
there.” The victim said she did not remember how long the touching lasted but that “[i]t
seemed like forever because I wanted to just go back to my room and go to sleep.” At
some point, the Defendant stopped and left the room, and the victim returned to her
bedroom.

        The victim testified that she “knew it was wrong” but that she did not tell anyone
immediately because she “didn’t know what to do.” The victim later told a neighborhood
friend who was her age but did not tell anyone else. In January 2011, when the victim was
still seven years old, her mother walked into her bedroom and saw her touching herself.
The victim said that she “jumped” and covered herself with a blanket and that she was
scared and thought she had done something “bad.” The victim told the jury that she “just
touched myself down there to see what he was doing” and that her mother “immediately
knew” she had been abused. The victim said that her mother asked who touched her and
that her mother “would name all these people.” The victim’s mother first named the
victim’s grandfather, then one of the victim’s uncles, and then another uncle. Finally, the
victim’s mother named “Memo,” and the victim nodded her head yes. The victim stated,
“I kept saying no until she guessed the right one.”

       The victim testified that prior to the abuse, she loved the Defendant and considered
him one of her protectors. After the abuse, the victim hated the Defendant and would push
him away when he tried to hug her. When the victim revealed the abuse to her mother, the
victim was “kind of confused, but relieved at the same time.” She said that she did not
remember what she told her mother and that she did not remember if she talked to the
police. However, the victim remembered talking to a woman at the CAC. The victim’s
CAC interview was video-recorded, and the victim reviewed the recording before trial.
                                           -4-
She said that everything she said in her interview was true. Prior to revealing the abuse,
the victim saw the Defendant “very often.” After her allegations, she did not see him again
until she saw him at Incredible Pizza in 2017.

       On cross-examination, the victim acknowledged that when her mother discovered
her touching herself, their conversation “went straight to abuse.” The victim did not
remember how long their conversation lasted, and they did not discuss the victim’s
touching herself. The victim stated, “All I can remember is she was just asking me, like,
who it was, and she didn’t stop until I told her who actually did it.” The victim did not
want to answer her mother but told her mother when her mother “got the name right.” The
victim said that she did not remember their “exact conversation” but that she told her
mother the Defendant “touched me down there.” The victim did not tell her interviewer at
the CAC that the abuse happened in the summer. The victim explained that she “just
answered the questions” the interviewer asked her.

        R.E., the victim’s father and the Defendant’s older brother, testified that one day in
January 2011, he received a telephone call from his wife as he was returning home from
work. In response to the call, R.E. telephoned another brother and asked if he knew of any
abuse to the brother’s children. R.E. did not telephone the Defendant. R.E. said that prior
to that day, he saw the Defendant about once a week. The Defendant also spent the night
at R.E.’s home sometimes because they worked together and would go to work together
the next morning. After the victim’s allegations, R.E. did not see the Defendant until a few
years later when he and his family “[ran] into” the Defendant at Incredible Pizza.

       On cross-examination, R.E. testified that he did not speak with the Defendant at
Incredible Pizza. The Defendant was at the restaurant with R.E.’s other brother and the
brother’s family. R.E. denied being accused of touching E.E.’s sister inappropriately.

       Sergeant Kim Hoard of the Memphis Police Department (“MPD”) testified that in
2011, she worked in the Child Abuse Unit and was responsible for investigating allegations
of child sexual and physical abuse.2 The victim’s case was assigned to her and “was
stamped DCS handle and return.” Someone at DCS, the Department of Children’s
Services, scheduled the victim for a forensic interview at the CAC. The victim’s completed
interview was “transcribed to a summary,” and Sergeant Hoard reviewed the summary.
Because the alleged abuse was more than seventy-two-hours old, a rape kit was not
collected from the victim. Sergeant Hoard did not go to the crime scene and did not
interview any witnesses. She tried to contact the Defendant by telephone, but his telephone
number had been disconnected.

       2
          At the time of trial, Sergeant Hoard was retired from the MPD. However, we will refer to
witnesses by the title in effect at the time of their involvement in this case.
                                              -5-
        On cross-examination, Sergeant Hoard acknowledged that after the victim’s mother
called the police, a police officer went to the victim’s home and spoke with the victim’s
mother. Sergeant Hoard did not know if the officer spoke with the victim. According to
the initial report, the victim’s pants and panties were “pulled down.” The Defendant did
not live with the victim’s family on Hopewell Road but would spend the night at their
house sometimes so he could go to work with E.E.’s husband the next day. The victim had
provided a timeframe for the abuse, but Sergeant Hoard did not remember the timeframe.
On redirect examination, Sergeant Hoard testified that the victim reported digital
penetration; therefore, no DNA evidence would have been available.

       Letitia Cole testified that she was a forensic interviewer at the CAC in Memphis.
She described a forensic interview as “a child-friendly, a neutral conversation between
myself and the child” and said that her job was to listen to the child, not determine whether
the child was telling the truth. Ms. Cole conducted the victim’s forensic interview on
February 24, 2011. The victim gave age-appropriate responses about a child’s physical
development, and her interview was video-recorded.

       The State played the video for the jury, and we have reviewed the victim’s forensic
interview. The victim told Ms. Cole that she lived with her parents and two brothers, who
were six and three years old. Ms. Cole showed the victim drawings of a girl and a boy,
and the victim referred to the breasts on both of the drawings as “nipples” and the genitals
on both of the drawings as “private part.” The victim told Ms. Cole that her Uncle Memo
touched her “private part” with his finger and that the incident occurred “about a year ago.”
The victim said that she was sleeping with one of her brothers in her bed; that the Defendant
carried her to her brother’s bed in another bedroom; that he took off her pants and panties;
and that he began touching her. The victim was awake but pretended to be asleep. She
kept her eyes closed but opened them “a little” and saw the Defendant. Ms. Cole asked
where the Defendant touched her on her private part, and the victim said, “On the inside,
kind of.” The victim said the touching felt “weird” because her mother did not allow
anyone to touch her. The victim did not tell her mother about the abuse immediately
because she was afraid her mother would be mad at her. The victim’s mother later asked
her questions, so the victim told her mother about the abuse.

         After Ms. Cole’s testimony, the State read two stipulations of fact to the jury. The
first stipulation provided that if called to testify, experts in the field of child psychology
and pediatric medicine would say that masturbation by a seven-year-old female child was
normal behavior and that masturbation by a seven-year-old female child alone did not
indicate an increased or decreased likelihood that the child was a victim of sexual abuse.
The second stipulation provided that the Defendant was indicted for the crimes on
September 13, 2012, and that a warrant was issued for his arrest on September 18, 2012.

                                            -6-
       The State rested its case, and the Defendant did not present any proof. As to count
one, the jury convicted him of aggravated sexual battery when the victim is less than
thirteen years old as a lesser-included offense of rape of a child. Regarding count two, the
jury convicted him as charged in the indictment of aggravated sexual battery when the
victim is less than thirteen years old. The trial court held a sentencing hearing, merged the
convictions, and sentenced the Defendant to seven years, two months, and twelve days in
confinement.

                                        ANALYSIS

                              I. Sufficiency of the Evidence

        The Defendant claims that although the victim testified about conduct that would
constitute aggravated sexual battery, the evidence nevertheless is insufficient to support
the convictions because “there was no corroboration.” He also contends that the evidence
is insufficient because the victim and other witnesses could not remember details about the
case, indicating the witnesses were not credible. The State argues that the evidence is
sufficient. We agree with the State.

        When the sufficiency of the evidence is challenged on appeal, the relevant question
of the reviewing court is “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.” Jackson v. Virginia, 

 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 

 (Tenn.
1992); State v. Anderson, 

 (Tenn. Crim. App. 1992).

        Therefore, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences that may be drawn from it. State v. Williams, 

 (Tenn. 1983). All questions involving the credibility of witnesses, the
weight and value to be given the evidence, and all factual issues are resolved by the trier
of fact. State v. Pruett, 

 (Tenn. 1990). “A jury conviction removes
the presumption of innocence with which a defendant is initially cloaked and replaces it
with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating
that the evidence is insufficient.” State v. Tuggle, 

 (Tenn. 1982).

      The guilt of a defendant, including any fact required to be proven, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 

 (Tenn. Crim. App.
1999). The standard of review for the sufficiency of the evidence is the same whether the
                                             -7-
conviction is based on direct or circumstantial evidence or a combination of the two. State
v. Dorantes, 

 (Tenn. 2011).

        Relevant to this case, aggravated sexual battery is “unlawful sexual contact with a
victim by the defendant” and the victim is less than thirteen years old. 

(a)(4). “Sexual contact” is defined as “the intentional touching of the victim’s .
. . intimate parts . . . if that intentional touching can be reasonably construed as being for
the purpose of sexual arousal or gratification.” 

(6).

       As to the Defendant’s claim that the evidence is insufficient because there was no
corroboration, the Defendant does not explain what testimony or evidence needed to be
corroborated. We note that a felony conviction in Tennessee may not rest solely upon the
uncorroborated testimony of an accomplice. State v. Boxley, 

 (Tenn.
Crim. App. 2001). Previously, Tennessee courts held that a minor victim of sexual abuse
could, in certain circumstances, qualify as an accomplice to the crime, meaning that the
child’s testimony had to be corroborated. See State v. Collier, 

(Tenn. 2013) (citing cases as examples). However, in Collier, our supreme court expressly
overruled all prior decisions requiring the testimony of a minor victim of a sex offense be
corroborated. 

. Moreover, our supreme court has found that a child
victim’s testimony about sexual abuse is sufficient to support a defendant’s convictions.
See State v. Elkins, 

 (Tenn. 2003). That said, E.E. did offer some
corroboration of the victim’s testimony when E.E. testified that the Defendant would spend
the night at her house sometimes; that the victim’s behavior toward the Defendant changed
in the summer of 2010; and that a particular friend of the victim, to whom the victim
supposedly reported the abuse, came over to play with the victim in the summer of 2010.

         As to the Defendant’s claim that the victim and witnesses lacked credibility because
they could not remember some facts about the case, defense counsel thoroughly cross-
examined all of the witnesses and honed in on their inability to recall details about the case.
Determining the credibility of witnesses is within the purview of the jury. See State v.
Millsaps, 

 (Tenn. Crim. App. 2000) (stating that “the weight and
credibility of the witnesses’ testimony are matters entrusted exclusively to the jury as the
trier[ ] of fact”). Here, the victim testified that the Defendant carried her into her brothers’
bedroom, removed her underwear, and touched inside the lips of her vagina with his
fingers. The victim’s account was essentially the same as her account in her CAC
interview, and the jury obviously resolved any issues of credibility in the State’s favor. We
may not now reconsider the jury’s credibility assessment. See State v. Carruthers, 

 (Tenn. 2000). Therefore, the evidence is sufficient to support the
convictions.



                                             -8-
                          II. Motion to Dismiss the Indictment

        Next, the Defendant claims that the trial court erred by denying his motion to
dismiss the indictment. Specifically, the Defendant raises two issues: (1) the delay
between the victim’s reporting the abuse until the issuance of the indictment violated his
right to due process and (2) the delay between the issuance of the indictment until his arrest
violated his rights to due process and speedy trial. The State argues that the trial court did
not err. We agree with the State.

       On October 30, 2018, the Defendant filed a motion to dismiss the indictment. In
the motion, the Defendant claimed that the alleged abuse was reported to Memphis police
on January 29, 2011; that he was indicted on September 13, 2012; that a capias was issued
for his arrest on September 18, 2012; and that he did not learn about the indictment until
an “ordinary” traffic stop on August 11, 2018. First, the Defendant asserted that the
nineteen-month delay from the date the abuse was reported to law enforcement until the
date of the indictment violated his right to due process because the State intentionally
delayed the indictment to gain a tactical advantage or “due to bureaucratic indifference.”
Second, he asserted that the nearly six-year delay from the date of the indictment until he
was served with the capias or learned about the indictment violated his rights to due process
and speedy trial. He claimed he was “severely prejudiced” by the post-indictment delay
because the memories of witnesses had faded, witnesses had become unavailable, and
evidence had been lost. The State responded to the motion, arguing that the Defendant was
not entitled to relief for the preindictment delay because he did not allege actual prejudice
and because the State did not cause the delay to gain a tactical advantage. The State argued
that the Defendant was not entitled to relief for the post-indictment delay because law
enforcement was not able to locate him until 2018. The trial court held hearings on the
motion in August, October, November, and December 2019.

       During one of the hearings on August 19, 2019, Sergeant Hoard testified for the
State about the process of reporting sex abuse crimes against children. She explained that
reports of sexual abuse “go through a morning CPIT,” which was the acronym for Child
Protection Investigative Team. The team was composed of a person from the CAC, an
MPD Lieutenant, a person from the Shelby County Sheriff’s Office (“SCSO”), and a
prosecutor. The victim’s mother reported the abuse to the police on January 29, 2011. The
responding officer forwarded the initial report to the CPIT, and the morning CPIT reviewed
the report. Sergeant Hoard regularly attended CPIT meetings, and the case was assigned
to her on January 31, 2011. A DCS employee arranged for the victim to participate in a
forensic interview on February 24, 2011, and the case was returned to Sergeant Hoard on
March 29, 2011.



                                            -9-
       Sergeant Hoard testified that she then talked with the victim’s mother, who thought
the Defendant had returned to Mexico. The Defendant’s telephone number and address
were in the initial report, so Sergeant Hoard tried to contact him by telephone on April 12,
2011. However, the telephone number had been disconnected. Sergeant Hoard went to
the Defendant’s address on April 14, 2011, but “there was no answer.” On the afternoon
of April 14, 2011, Sergeant Hoard turned in her report to the CPIT and recommended that
the Defendant be indicted. Assistant District Attorney General Gregg Carman “signed off”
on the recommendation that same day.

        Sergeant Hoard testified that she talked with the victim’s mother again on April 19,
2011, and that the victim’s mother thought the abuse occurred “a year ago, when the
suspect was staying with them.” Sergeant Hoard had the victim’s forensic interview
transcribed, and Sergeant Hoard received the transcription on May 5, 2011. Sergeant
Hoard prepared a supplement and turned in her supplement to Lieutenant Melanie Howell
for approval on August 24, 2011. At that point, the case was sent to the district attorney
general’s office for indictment, and Sergeant Hoard had no further involvement. She said
that all child sex abuse cases went through the same process and that this case went through
the normal procedure in place at the time.

       On cross-examination, Sergeant Hoard testified that she had no independent
recollection of the case due to the passage of time and that her testimony about the case
came from the initial report and her supplement, both of which she reviewed before and
during the hearing. She said that she was not sure who gave the Defendant’s telephone
number and address to the initial responding officer but that she assumed the victim’s
mother provided the information.

       Deputy Margaret Lewis of the SCSO testified for the State that she spent nine years
working in the Fugitive Unit and serving warrants. She explained the general procedure
for serving warrants on suspects as follows: The Fugitive Unit used “a law enforcement
link” known as “WASP” to access a warrant.3 The warrant contained the suspect’s name,
address, date of birth, and Records and Identification “RNI” number.” Deputy Lewis
would go to the address to look for the suspect. If the suspect was present, Deputy Lewis
would arrest him or her. If someone at the address said the suspect no longer lived there,
Deputy Lewis would note in WASP that the suspect no longer lived at the address. Deputy
Lewis was not allowed to enter a residence without consent. If Deputy Lewis was unable
to serve the warrant, the warrant remained in the WASP system, other officers could see
the notes for the warrant, and officers could try to serve the warrant again. However, upon
serving the warrant, the notes for the warrant were automatically deleted from WASP.

       3
       WASP is the acronym for Warrant Apprehension Solution Program. See State v. Reinsberg, No.
W2014-02436-CCA-R3-CD, 

, at *5 (Tenn. Crim. App. July 22, 2016).
                                             - 10 -
       Deputy Lewis testified that she was not involved in arresting the Defendant but that
she reviewed his warrant. No notes about the warrant were present in WASP because the
notes were automatically deleted at the time of his arrest.

        On cross-examination, Deputy Lewis acknowledged that she did not have any
specific knowledge about this case but that the Defendant’s warrant also would have been
in the national crime database, NCIC. Therefore, officers in other jurisdictions would have
been able to access his warrant.

       Defense counsel recalled Sergeant Hoard back to the stand. Sergeant Hoard testified
that according to the initial report, the abuse occurred between June 24, 2010, and January
28, 2011. She acknowledged that the indictment alleged the abuse occurred between May
1, 2010, and July 15, 2010. She did not know why the dates in the indictment differed
from the dates in the initial report.

       During a hearing on October 10, 2019, Gregg Carman, a supervisor for the Shelby
County Public Defender’s Office, testified for the Defendant that he was a prosecutor for
the Shelby County District Attorney’s Office in April 2011. On April 14, 2011, General
Carman participated in a weekly CPIT meeting. A second prosecutor also may have been
present. During the meeting, General Carman reviewed a document that recommended the
Defendant be indicted for rape of a child. General Carman said that he “signed off” on the
document and that “we made the decision to go ahead and indict this case.”

        General Carman acknowledged that there were two ways to initiate a criminal case:
indict a defendant or arrest a defendant. Defense counsel asked General Carman to explain
“what factors come into play in your making a decision as to whether to seek an indictment
[versus] seek a warrant for a suspect’s arrest[.]” General Carman stated that the decision
was made “on a case by case basis” and was based on “a number of factors.” Those factors
included whether the child reported the abuse immediately, whether an independent
witness saw the abuse, the age of the child, the potential for additional abuse of the child
or another child, and whether the child “would be able to testify well at a preliminary
hearing or not.” He acknowledged that a witness who testified poorly at a preliminary
hearing could damage the State’s case.

       General Carman testified that he did not remember this case specifically and that he
did not remember why he recommended the case for indictment rather than arrest. He said
that obtaining an indictment was typically a slower process and that “it could take maybe
a month or two” after a prosecutor signed the recommendation for an indictment before the
grand jury could hear the case. Defense counsel asked if eighteen months from the date
the abuse was reported until the case was indicted was “unusual.” General Carman
responded:
                                           - 11 -
              No. Again, a lot of factors go into that[:] when the case was actually
       reported, when the case may actually come up at CPIT meetings[,] is their
       reason it was delayed in CPIT to obtain more information or to get a forensic
       interview or to learn about potentially other victims.

              There’s a number of variables that would be involved, but I could see
       a case that might be reported. Let’s give an example, January 1st might go
       in front of CPIT, you know, in three or four months and then might be
       indicted in two months, but it might take a year to be indicted. Again, it
       would, I guess, depend on the individual that’s doing the indictment
       paperwork and how quick the State report was given to the prosecutor.

He acknowledged that the district attorney’s office had a “role” in how long it took to indict
a defendant. General Carman left the district attorney’s office soon after he signed the
recommendation to indict the Defendant on April 14, 2011, and he did not know why the
Defendant was not indicted until September 2012. On cross-examination, General Carman
testified that he would not have recommended the case for indictment if he had thought he
could not show probable cause at the Defendant’s preliminary hearing.

       During a hearing on November 22, 2019, Ms. Cole testified for the State that she
was trained to conduct forensic interviews with children and that she interviewed the seven-
year-old victim at the CAC. The victim was “calm,” answered all of Ms. Cole’s questions,
and “seemed like a normal seven year old.” Ms. Cole asked the victim open-ended
questions so as not to suggest answers from her. The victim led the interview and told Ms.
Cole that the Defendant abused her “about a year ago.”

        On cross-examination, Ms. Cole testified that she did not remember the victim’s
interview but that she reviewed a recording of the interview for the hearing. She described
herself as “a neutral party” and said that she knew “just a little bit” about a case prior to an
interview, which helped her remain neutral. She stated that she was “just there to hear
what the child has to say” and that she did not confront the child about inconsistencies or
try to determine whether the child was telling the truth.

       At the November 2019 hearing, the victim testified that she was sixteen years old
and that she was in the eleventh grade. She reviewed her recorded CAC interview prior to
the hearing and identified the recording for the trial court. She said that she did not
remember participating in the interview but that she remembered attending counseling.
The victim thought she attended counseling close in time to the abuse and thought she
attended counseling after her CAC interview. The victim stated that she “clearly”
remembered the Defendant’s sexually abusing her and that she told the truth in her

                                             - 12 -
interview. The victim told Ms. Cole that the abuse occurred “about a year” before the
interview. The State played the victim’s video-recorded interview for the trial court.

       On cross-examination, the victim testified that she told her mother about the abuse
after her mother walked into her bedroom unannounced and that she told her mother
because she thought she was in trouble. The victim said that she did not remember what
season of the year the abuse occurred, that she did not know why she told Ms. Cole the
abuse occurred about a year before her CAC interview, and that she did not know why the
indictment alleged the abuse occurred between May 1 and July 15, 2010.

       During the final hearing on December 6, 2019, E.E. testified that after the victim
revealed the abuse to her, she telephoned the police and her husband. She then telephoned
the Defendant and tried to trick him into coming to her house by inviting him to a cookout.
E.E. pretended not to know anything about the victim’s allegations so the Defendant would
be at her house when the police arrived. However, the Defendant never showed up. Later
that day or the next day, E.E. spoke with the Defendant again on the telephone. She was
angry with him because he knew she had called the police but would not tell her where he
was located. E.E. said that prior to the victim’s allegations, E.E. saw the Defendant on a
regular basis. After the victim’s allegations, E.E. did not see him again.

       On cross-examination, E.E. testified that the victim would not say at first who
abused her. E.E. named E.E.’s father and brother, but the victim kept saying no. The
victim finally told E.E. that it was the Defendant. E.E. acknowledged that the victim
alleged the abuse after E.E. saw the victim touching herself. E.E. asked the victim if
anyone had touched her, but the victim did not want to answer the question. E.E. said that
the Defendant lived with her family in 2008. He never lived with the family in the house
where the abuse occurred but would spend the night there sometimes because he went to
work in the mornings with E.E.’s husband. E.E. thought the abuse occurred about a year
before she reported it to the police, but she did not know the specific date of the abuse. She
estimated when the abuse occurred based on “clues” from the victim, explaining that the
victim stopped wanting to hug the Defendant and would push him away. E.E. said she did
not remember if the victim told her the abuse occurred about a year before the allegations.

        J.E. testified that he, the Defendant, and the victim’s father were brothers. E.E. was
J.E.’s sister-in-law, and the victim was J.E.’s niece. At the time of the victim’s allegations,
the Defendant was living with J.E. The victim’s father told J.E. that the Defendant had
abused the victim, so J.E. telephoned the Defendant and told him about the allegations.
J.E. also told the Defendant that the police had been contacted and that the Defendant
needed to leave. The Defendant stayed with the J.E. one or two more days but then “just
left out.” J.E. did not know where the Defendant went. J.E. later spoke with the Defendant,
and the Defendant said he was living with a friend in Texas.
                                            - 13 -
         On cross-examination, J.E. testified that the Defendant claimed he did not do
anything wrong. J.E. acknowledged that prior to the victim’s allegations, the Defendant
would leave Tennessee to visit friends. However, the Defendant never went to Texas to
visit friends.

        On June 2, 2020, the trial court entered an order denying the Defendant’s motion to
dismiss the indictment. Addressing the preindictment delay, the trial court found that the
Defendant failed to show prejudice because no material witnesses had become unavailable
and because the testimony of the witnesses at the hearings showed their memories “had not
faded prejudicially.” The trial court also found that even if the Defendant was prejudiced
by the preindictment delay, “[t]estimony during the evidentiary hearings by Kim Hoard,
Gregg Carman, and Letitia Cole tended to prove that the delay was caused by standard
agency procedure, and not an intentional desire to gain a tactical advantage.” Addressing
the post-indictment delay, the trial court found that the length of the delay triggered speedy
trial analysis, that the delay occurred because the Defendant went to Texas, that the
Defendant did not assert his right to speedy trial during the delay, and that the Defendant
failed to show prejudice.

                                  A. Preindictment Delay

        We review a trial court’s ruling on a motion to dismiss the indictment for an abuse
of discretion. State v. Harris, 

 (Tenn. 2000). “An abuse of
discretion occurs when the trial court applies an incorrect legal standard or reaches a
conclusion that is illogical or unreasonable and causes an injustice to the party
complaining.” State v. Lewis, 

 (Tenn. 2007) (internal quotation and
citation omitted).

       In United States v. Marion, 

 (1971), the United States Supreme
Court stated that

       [t]he Due Process Clause of the Fifth Amendment would require dismissal
       of the indictment if it were shown at trial that the pre-indictment delay . . .
       caused substantial prejudice to [the defendant’s] rights to a fair trial and that
       the delay was an intentional device to gain tactical advantage over the
       accused.

To establish a Fifth Amendment due process violation stemming from a preindictment
delay, the defendant must prove the following prerequisites, also known as the Marion-
Dykes test: (1) there was a delay; (2) the accused sustained actual prejudice as a direct and
proximate result of the delay; and (3) the State caused the delay in order to gain a tactical
advantage over the accused or to harass the accused. State v. Utley, 

, 495
                                            - 14 -
(Tenn. 1997) (citing Marion, 

, and State v. Gray, 

(Tenn. 1996)); see also State v. Carico, 

 (Tenn. 1998).

       Here, there was a delay of more than nineteen months between the date of the
victim’s allegations and the date of the indictment. The Defendant claims that the delay
caused “serious prejudice” to the defense because the memories of “key” witnesses, such
as E.E., Sergeant Hoard, and Ms. Cole, had faded; he points to various examples of those
witnesses not being able to remember details about the case at the hearings on the motion
to dismiss and at trial. He also claims that the State caused the delay to gain a tactical
advantage and points to General Carman’s testimony that avoiding a preliminary hearing
was part of the decision to seek an indictment. In the alternative, he claims that the delay
was due to bureaucratic indifference.

       The victim testified that she clearly remembered the details of the abuse. While
some of the witnesses testified that they could not recall certain facts about the case,
defense counsel thoroughly questioned them about their recollections and observations. As
to the State’s tactical advantage, Sergeant Hoard testified that the case went through the
normal procedure that was in place at the time, and General Carman testified that the length
of time between the victim’s allegations and the indictment was not unusual. Therefore,
the record supports the trial court’s conclusion that the Defendant was not entitled to relief
on Fifth Amendment due process grounds.

                                 B. Post-Indictment Delay

       The right to a speedy trial, which is guaranteed by the Sixth Amendment to the
United States Constitution and by article I, section 9 of the Tennessee Constitution,
“attaches at the time of arrest or indictment, whichever comes first, and continues until the
date of the trial.” State v. Vickers, 

 (Tenn. Crim. App. 1997). In
determining whether a defendant’s constitutional right to a speedy trial has been violated,
this court must conduct the balancing test set forth in Barker v. Wingo, 

 (1972).
See State v. Wood, 

 (Tenn. 1996); State v. Baker, 

 (Tenn. 1981). Under the Barker analysis, the following four factors must be
considered: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s
assertion of the right to a speedy trial; and (4) the prejudice resulting from the delay. 

. The most important consideration is the prejudice factor. State v. Simmons,

 (Tenn. 2001). Our review of a speedy trial claim is “de novo with
respect to whether the court correctly interpreted and applied the law.” State v. Moon, 

, 78 (Tenn. 2022), cert. denied 

 (2022). This court gives
“deference to the trial court’s findings of fact unless the evidence preponderates
otherwise.” 

                                            - 15 -
        In this case, the Defendant was indicted in September 2012 but not arrested until
August 2018, a delay of almost six years. A delay of one year or longer will usually trigger
an inquiry into a speedy trial violation. Vickers, 

. Generally, the reason
for the delay falls into one of four categories:

       (1) intentional delay to gain a tactical advantage over the defense or delay
       designed to harass the defendant; (2) bureaucratic indifference or negligence;
       (3) delay necessary to the fair and effective prosecution of the case; and (4)
       delay caused, or acquiesced in, by the defense.

Wood, 

 (footnotes omitted). A delay caused by the defendant is
weighed against the defendant. 

 During the hearings on the motion to dismiss, the State
presented evidence that the delay occurred because the Defendant fled to Texas when he
learned about the victim’s allegations and that law enforcement could not locate him for
arrest. The trial court found that the Defendant fled, and the evidence does not
preponderate against the finding of the trial court. Thus, the reason for the six-year delay
weighs heavily against the Defendant.

       The Defendant’s capias, or warrant, went unserved, and he claims he did not know
about the indictment until an ordinary traffic stop on August 11, 2018. “[A]n accused who
is unaware of pending charges because the indictment has been sealed or not served cannot
be penalized for failure to assert the speedy trial right.” Simmons, 

. After
the Defendant’s arrest, he filed his motion alleging a speedy trial violation just two months
later on October 31, 2018. Thus, the third factor weighs in his favor.

       Prejudice, the final factor, is to be assessed in light of the following interests of the
accused, which the right to a speedy trial was designed to protect: (1) to prevent undue
and oppressive incarceration prior to trial; (2) to minimize the anxiety and concern that
results from being accused of a crime; and (3) to limit the risk that the defense will be
impaired. 

. Our supreme court has stated that “the most important issue
concerning prejudice to the defendant is the impairment of the ability to prepare a defense.”
State v. Berry, 

 (Tenn. 2004) (citing State v. Baker, 

 (Tenn. 1981)). The Defendant was not incarcerated during the delay, and he cannot
say he suffered anxiety or concern because he claims he was unaware of the charges.
Regarding the impairment to his defense, the Defendant has not specified any witnesses or
evidence that became unavailable during the delay. As we stated previously, the delay may
have resulted in some of the witnesses being unable to recall details about the case;
however, the victim testified that she clearly remembered the abuse, and the Defendant was
able to cross-examine her and the other witnesses about their recollections. Thus, we
conclude that the Defendant was not denied his right to a speedy trial.

                                             - 16 -
                                   III. Flight Instruction

        Finally, the Defendant claims that the trial court erred by instructing the jury on
flight because there was no evidence of flight presented at trial. The Defendant notes that
the State did not offer any evidence at trial as to his whereabouts after the victim’s mother
reported the abuse or that he was even aware of the victim’s allegations. The State argues
that the trial court properly instructed the jury because the State presented evidence from
which the jury could infer the Defendant left the jurisdiction. The State contends that the
victim and her parents testified that they saw the Defendant regularly prior to the victim’s
allegations but did not see him for years after the allegations, the Defendant’s telephone
had been disconnected, and there was no answer at his address. We agree with the State.

        During a discussion about the final jury charge, defense counsel requested that the
flight instruction be removed. The State contended that the jury could infer flight from
E.E.’s testimony that she used to see the Defendant regularly, that he was supposed to
attend the cookout the day the victim revealed the abuse, and that E.E. did not see him
again for six years.

         The trial court stated that “[t]here could’ve been stronger proof put on by the State”
at trial for a flight instruction but found that enough proof existed to support the instruction.
The record reflects that the trial court instructed the jury on flight as follows:

              Flight. The flight of a person accused of a crime is a circumstance
       which when considered with all the facts of the case may justify an inference
       of guilt. Flight is the voluntary withdrawal of oneself for the purpose of
       evading arrest or prosecution for the crime charged. Whether the evidence
       presented proves beyond a reasonable doubt that the defendant fled is a
       question for your determination.

               The law makes no precise distinction as to the manner or method of
       flight. It may be open or it may be a hurried or concealed departure or it may
       be a concealment [within] the jurisdiction. However, it takes both a leaving
       the scene of the difficulty and a subsequent hiding out, evasion, or
       concealment in the community or a leaving of the community for parts
       unknown to constitute flight.

              If flight is proved, the fact of flight alone does not allow you to find
       the defendant is guilty of the crime alleged. However, since flight by a
       defendant may be caused by a consciousness of guilt, you may consider the
       fact of flight, if flight is so proven, together with all of the other evidence
       when you decide the guilt or innocence of the defendant.
                                             - 17 -
             On the other hand, an entirely innocent person may take flight and
       such flight may be explained by proof offered or by the facts and
       circumstances of the case. Whether there was flight by the defendant, the
       reasons for it, and the weight to be given to it are questions for you to
       determine.

       “It is well-settled in Tennessee that a defendant has a right to a correct and complete
charge of the law so that each issue of fact raised by the evidence will be submitted to the
jury on proper instructions.” State v. Farner, 

 (Tenn. 2001).
Accordingly, trial courts have the duty to give “a complete charge of the law applicable to
the facts of the case.” State v. Davenport, 

 (Tenn. Crim. App. 1998).
“Challenges to jury instructions present mixed questions of law and fact; therefore, we
review challenged instructions de novo without a presumption of correctness.” State v.
Smith, 

 (Tenn. 2016).

        “In order for a trial court to charge the jury on flight as an inference of guilt, there
must be sufficient evidence to support such instruction.” Berry, 

. There
is sufficient evidence to support a jury charge on flight where there is proof of “‘both a
leaving the scene of the difficulty and a subsequent hiding out, evasion, or concealment in
the community, or a leaving of the community for parts unknown.’” State v. Burns, 

 (Tenn. 1998) (emphasis omitted) (quoting State v. Payton, 

 (Tenn. Crim. App. 1989)). The State can satisfy the subsequent hiding out,
evasion, or concealment requirement by introducing evidence from which a jury might
infer such action. See State v. Wilks, No. W1999-00279-CCA-R3-CD, 

,
at *4 (Tenn. Crim. App. Nov. 22, 1999). This court has explained that:

       The law makes no nice or refined distinction as to the manner or method of
       a flight; it may be open, or it may be a hurried or concealed departure, or it
       may be a concealment within the jurisdiction. However, it takes both a
       leaving the scene of the difficulty and a subsequent hiding out, evasion, or
       concealment in the community, or a leaving of the community for parts
       unknown, to constitute flight.

State v. Whittenmeir, 

 (Tenn. Crim. App. 1986) (quoting Rogers v.
State, 

 (Tenn. Crim. App. 1970)). “Evidence of flight to avoid arrest
may be rebutted by a credible explanation of some motive other than guilt, but the
conclusion to be drawn from such evidence is for the jury upon proper instructions from
the trial court.” Hall v. State, 

 (Tenn. Crim. App. 1979).

       We agree with the trial court that the evidence was sufficient to support a flight
instruction. The proof at trial showed that prior to the victim’s allegations, the victim and
                                             - 18 -
her family saw the Defendant regularly and that he sometimes spent the night at the
victim’s home because he worked with the victim’s father. After the allegations surfaced,
though, the victim’s family no longer saw the Defendant. E.E. testified that after the victim
told her about the abuse, she spoke with the Defendant and tried to lure him to her home
for a cookout so the police could arrest him. Although the Defendant said he would come
to the cookout, he never showed up, and the victim’s family did not see him again until
many years later when the family unexpectedly saw him at Incredible Pizza. The victim’s
father testified that after E.E. told him about the abuse, he contacted another brother and
asked if the brother knew of any abuse to the brother’s children. Sergeant Hoard testified
that she tried to contact the Defendant by telephone but that his telephone number had been
disconnected. From this evidence, the jury could infer that the Defendant learned about
the allegations; that he left the scene of the difficulty; and that he subsequently hid out,
evaded, or concealed himself within or outside the community. Therefore, the trial court
did not err by instructing the jury on flight.

                                     CONCLUSION

       Upon our review, we affirm the judgments of the trial court.



                                                    _________________________________
                                                    JOHN W. CAMPBELL, SR., JUDGE




                                           - 19 -