        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                            AT KNOXVILLE                       July 13, 1999

                                                             Cecil Crowson, Jr.
                       DECEMB ER SESSION, 1998               Appellate C ourt
                                                                 Clerk



STATE OF TENNESSEE,   )          C.C.A. NO. 03C01-9712-CR-00524
                      )
    Appellee,         )
                      )
                      )          SULLIVAN COUNTY
VS.                   )
                      )          HON. PHYLLIS H. MILLER
ROGER MORRIS GARDNER, )          JUDGE
                      )
    Appe llant.       )          (Direct Appeal - Range II Multiple
                      )          Offender)




FOR THE APPELLANT:               FOR THE APPELLEE:

GALE K. FLANARY                  JOHN KNOX WALKUP
Assistant Public Defender        Attorney General and Reporter
2nd Judicial District
P. O. Box 839                    TODD R. KELLEY
Blountville, TN 37617            Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 GREELEY W ELLS
                                 District Attorney General

                                 BARRY STAUBUS
                                 LISA CROCKETT
                                 Assistant Attorney General
                                 P. O. Box 526
                                 Blountville, TN 37617



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION




       On September 30, 1997, a Sullivan County jury convicted Appellant Roger

Morris Gardner o f one count of a ttempted ag gravated kidna pping.             After a

sentencing hearing on November 18, 1997, the trial court sentenced Appellant

as a Range II multiple offender to eight years in the Tennessee Department of

Correction. Appellant challenges his conviction, raising the following issues:

       1) whether the evidence was sufficient to support his conviction;
       2) whether the trial court should have granted a mistrial because the jurors
       may have seen Appellant in the custody of some bailiffs during a recess
       in the tria l;
       3) wheth er the trial co urt prope rly instructed the jury on fligh t;
       4) whether the trial cou rt properly instructed the jury on admissions against
       interest; and
       5) whether Appellant’s right to a speedy trial was violated.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                      I. FACTS




       Beth Davidson testified that on December 5, 1996, she was working as a

desk clerk at the Westside Inn in Kingsport, Tennessee. Shortly after 12:30 a.m.,

Appellant came in the front door and asked to use the telephone to call for a ride

home. Appellant then used the telephone and sat down on a couch when he was

finished.



       Davidson testified that after Appellant sat down on the couc h, she w ent into

the bathroom to hang up a broom. When Davidson attempted to leave the

bathroom, Appellant approached the doorway and put up his hands to block


                                           -2-
David son’s way out. When Davidso n tried to go past Ap pellant, he grabbe d both

of her arm s and h eld them in a tight grip. A fter a brief stru ggle, Da vidson fell to

her knees, and Appellant fell on top of her. Appellant then grabbed one of

David son’s arms and placed one of his hands o ver Davidson’s mouth and

pressed “very hard.” Davidson then “kicked and fought” and managed to crawl

out from un der Ap pellant afte r a strugg le which la sted between three and four

minutes.     Davidson testified that during this struggle in the bathroom, she

sustained a cut to her hand, b ruises to her knees, and muscle sprains in her neck

and ba ck.



       Davidson testified that after she crawled out from under Appellant, she

went to the telephone by the front counter and called 9-1-1. Appellant then

picked u p his hat a nd jacke t from off the couch and left thro ugh a s ide doo r.



       Davidson testified that sometime later that night, the police brought

Appellant to the scene, and she identified him as the man who had attacked her.



       Officer Joe Graham of the Kingsport Police Department testified that at

approximate ly 1:44 a.m. on December 5, 1996, he responded to a call at the

Westside Inn. After Davidson related the events that had just occurred, Graham

went to the phone registry that recorded outgoing calls in orde r to determine who

David son’s assailant had c alled. Graham then called the last recorded phone

number and received information that Appellant had dialed that number. Graham

then put ou t a BO LO (b e on th e look out) for Appe llant. Graham testified that

shortly thereafter, he showed Davidson a photographic line-up, and she




                                          -3-
imm ediate ly identified the photograph of Appellant as the man who had attacked

her.



       Graham testified that Appellant was subsequently apprehended and

brought to the Westside Inn. The police officers then asked Appellant to get out

and stand by the side of the police car. Davidson then identified Appellant as her

attacker.



       Officer David Samples of the Kingsport Police Department testified that

after receiving information from Officer Graham on December 5, 1996, he located

Appellant at a house in Kin gsport. When Samples asked Appellant if he had

been to the Westside Inn on that date, Appellant initially denied being there.

When Samples told Appellant that he matched the description of a subject who

had been at that location, Appellant admitted that he had been at the Westside

Inn to use the teleph one.



                     II. SUFFICIENCY OF THE EVIDENCE




       Appellant contends that th e evide nce w as insu fficient to supp ort his

conviction. When an app ellant challenges the sufficiency of the e videnc e, this

Court is obliged to review that challenge according to certain well-settled

principles. A verdict of guilty by the jury, approved by the trial judge, accredits the

testimony of the S tate’s w itness es an d reso lves all conflicts in the testim ony in

favor of the Sta te. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although

an accused is origin ally cloaked with a presumption of innocence, a jury verdict

removes this pre sum ption a nd rep laces it with one o f guilt. State v. Tug gle, 639

                                          -4-
S.W.2d 913, 914 (Tenn. 1982). Hence , on app eal, the bu rden of p roof rests w ith

Appellant to dem onstrate the insufficie ncy of the convicting evidenc e. Id. On

appe al, “the [S]tate is entitled to the strongest legitimate view of the evidence as

well as all reasonab le and legitimate infe rences that m ay be drawn the refrom.”

Id. Where the sufficiency of the evidence is contested on appeal, the relevant

question for the reviewing court is whether any rational trier of fact cou ld have

found the accused guilty of every element of the offe nse b eyond a reas onab le

doubt. Jack son v. V irginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.

2d 560 (19 79). In con ducting our evaluatio n of the convic ting evid ence , this

Court is preclud ed from reweigh ing or reco nsidering the evide nce. State v.

Morgan, 929 S.W.2d 380, 383 (Ten n. Crim. App . 1996). Moreo ver, this Court

may not substitute its own inferences “for those drawn by the trier of fact from

circumstantial evidenc e.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Tennes see Rules of Appellate Pro cedure

provides, “findings o f guilt in crim inal actions whe ther by the trial court or jury

shall be set as ide if the evide nce is insu fficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.”



       Under Tennessee law, false imprisonment occurs when one person

“know ingly removes or confines another unlawfully so as to interfe re sub stantia lly

with the other’s liberty.”     Tenn Code Ann. § 39-13-302(a) (1997).               False

imprisonment becomes aggravated kidnapping when, among other things, the

victim suffers bodily injury. Tenn Code Ann. § 39-13-304(a)(4) (1997). “A person

comm its criminal a ttempt w ho, acting with the kind of culpability otherwise

required for the offense . . . [a]cts with intent to to cause a result that is an




                                           -5-
element of the offense, and believes the conduct will cause the result without

further conduct on the person ’s part.” Tenn. Co de Ann. § 3 9-12-101(a )(2) (1997).



       Initially, Appella nt conten ds that the evidenc e was ins ufficient because

there was no proof that Davidson sustained bodily injury during the incident in the

bathroom. Howe ver, the cu t, bruises, and muscle sprains sustained by Davidson

during her struggle with Appellant in the bathroom clearly fit the definition of

“bodily injury.” See Tenn. C ode Ann . § 39-11-106 (2) (1997) (“‘Bod ily injury’

includes a cut, abra sion, bruis e, burn or disfigureme nt; physical pain or tem porary

illness or impairment of the function of a bodily member, organ, or menta l

faculty.”). Contrary to Appellant’s assertions, there is absolutely nothing in the

statutory definitio n that re quires the bru ising to be “ext ensive ” in order to qualify

as bodily injury. Further, Appellant’s claim that Davidson cut her hand on a piece

of wood, by the front desk rather than in the bathroom is not supported by the

record . Appe llant is correc t that the record indica tes tha t there w as no blood in

the bathroom itself and that there was a piece of broken wood by the front desk.

Howeve r, there is no proof in the record that Davidson actually cut her hand on

the piece of wood and in fact, Davidson specifically testified that her hand was

cut while s he was in the bath room.



       Second, Appellant contends that the evidence was insufficient because

there was no proof that he confined Davidson “unlawfully” as defined by statute.

The definition of “unlawful” as used in the kidnapping and false imprisonment

statutes means “accomplished by force, threat or fraud.” Tenn. Code Ann. § 39-

13-301(2) (1997).       Here, the State introduced proof that when Davidson

attempted to leave the bathroom, Appellant put up his hands so that Davidson

                                           -6-
could not get out, that Appellant grabbed both of Davidson’s arms when she tried

to leave, and that Appellant grabbed one of Davidson’s arms and placed one of

his hands over Davidson’s mouth and pressed “very hard” while they were on the

floor. This conduct by Appellant clearly qualifies as force.



       Third, Appella nt conten ds that th e eviden ce wa s insuf ficient b ecau se it

failed to establish that he “su bstantially interfered” with Davidson’s liberty.

Assuming arguendo that the facts of this case did not constitute a “substantial

interference” with Davidson’s liberty, the evidence was still sufficient to support

a convic tion for a ttemp ted ag grava ted kid napp ing.      Es sentia lly, App ellant’s

argument amo unts to an as sertion that be caus e App ellant d id not a ctually

comp lete the offense of ag gravated kidna pping b y substa ntially interfering with

Davidson’s liberty, he cannot be guilty of attempted aggravated kidnapping.

Howeve r, as pre viously noted, “[a] person commits criminal attempt who, acting

with the kind of culpability otherwise required for the offense . . . [a]cts with intent

to cause a result that is an element of the offense, and believe s the c ondu ct will

cause the res ult without further conduct on the person’s part.” Tenn. Code Ann.

§ 39-12-101(a)(2) (1997). Thus, the State was required to prove that Appellant

acted with inte nt to kn owing ly confin e Dav idson unlaw fully so as to subs tantially

interfere with her libe rty, belie ving tha t his con duct w ould cause the result without

further condu ct on his p art. The e vidence that App ellant held out his ha nds to

block Davidson’s exit from the bathroom, that Appellant initially grabbed both of

David son’s arms , and th at App ellant s ubse quen tly grab bed o ne of D avidso n’s

arms and covered her mouth clearly supports the jury’s conclusion that Appellant

grabbed and held Davidson with the intent of confining her unlawfully in a way




                                           -7-
that substantially interfered with her liberty and that Appellant believed that he

would a ccom plish his ob jective witho ut further co nduct o n his part.



       Finally, Appellant contends that the evidence was insufficient because the

facts indicate that the incident in question was an accident caused by Da vidson ’s

unrea sona ble panicke d reaction to Appe llant’s drun ken attempt to use the

bathroom. Esse ntially, A ppella nt is asking this Co urt to reconsider the evidence

and substitute a verdict of not guilty in place of the verdict found by the jury. That

is not our function. Instead, we conc lude th at whe n the e videnc e in this case is

viewed in the light mos t favorable to the Sta te, a rational jury could find beyond

a reason able do ubt that A ppellant a ttempte d to commit the offense of aggravated

kidnap ping. Th is issue ha s no m erit.



                           III. MOTIO N FOR A MISTR IAL




       Appellant contends that the trial court erred when it denied his motion for

a mistria l. Specifically, Appellant claim s that the trial court should have declared

a mistrial because one or more jurors may have seen him in the custody of some

bailiffs d uring a reces s in the trial.



       During a hearing on his motion, Appellant testified that while he was being

brought down a hallway by three bailiffs during a recess, a constable opened the

door to the jury roo m from the inside . Appellant testified that although he did not

know whether any of the jurors saw him, they might have be en able to get a “brief

glimpse” of him. Ap pellant also testified that d uring this occurrence, he was

wearing street clothes, he was not shackled or handcuffed, and he was not

                                           -8-
physically touche d by the b ailiffs.   The trial co urt then g ave Ap pellant the

opportu nity to change shirts so that any juro rs who only sa w his c lothing would

not be able to identify him as the man who had been with the bailiffs. Appellant

then chang ed into a s hirt mad e out of diffe rent ma terial.      The tr ial court

subs eque ntly denied the m otion for a mistrial because there was no evidence

that any of th e jurors had a ctually seen Appellant and beca use A ppella nt wou ld

not have been p rejudiced even if the ju ry had se en him .



      The decision of wheth er to grant a mistrial is within the sound discretion of

the trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim . App. 1996 ).

This Court will not disturb that decision absent a finding of abuse of discretion.

State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). “Generally, a mistrial will be

declared in a criminal case only when there is a ‘m anifest necessity’ requiring

such action by the trial judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn.

Crim. App. 19 91). There was no “manifest necessity” for a mistrial in this case.

There was absolutely no evidence that any member of the jury actually saw

Appellant during the occu rrence in question . Further, the fact that Appellant was

dressed in street clothes and was not handcuffed, shackled, or physically

touched by the ba iliffs supports the trial court’s conclusion that even if Appellant

had been seen by the jury, he would not have been prejudiced by it. Under these

circumstances, we hold that the trial court did not abu se its dis cretion when it

denied the mo tion for a m istrial. This iss ue has no me rit.




                                         -9-
                              IV. INSTRUCTION ABOUT FLIGHT




            Appellant contends tha t the trial court erred when it instructed the jury on

 flight. The State c once des th at the tria l court e rred w hen it g ave this instruction;

 however, the State contends that the error was harmless.



            The record ind icates tha t during its charge to the jury, the trial court gave

 the followin g instructio n on flight:

                   The flight of a person accused of a crime is a circumstance which,
            when conside red toge ther with all of the facts of the case, may justify an
            inference of guilt. Flight is the voluntary withdrawal of one’s self for the
            purpose of evading arrest or prosecution for the crimes charged. Whether
            the evidenc e prese nted pro ves beyo nd a rea sonab le doub t that the
            defend ant fled is a q uestion fo r your dete rminatio n.
                   The law makes no nice or refined distinction as to the manner or
            method of a flight; it ma y be ope n, or it may be a hurried or concealed
            departure, or it may be a concealment within the jurisdiction. How ever, it
            takes both a leaving the scene of the difficulty and a subsequent hiding
            out, evasion, or con cealmen t in the comm unity, or a leaving of the
            comm unity for par ts unkno wn, to con stitute flight.
                   If flight is proved, the fact of flight alone does not allow you to find
            that the de fenda nt is guilty of the crime alleged. However, since flight by
            a defendant may be cause d by a co nscious ness o f 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. 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.1


            In Roge rs v. State , 2 Tenn. Crim. App. 491, 502, 455 S.W.2d 182, 187

 (1970), this Court set out a two-prong test for determining whether the facts of a

 case w ere indica tive of flight:

            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 concealment within the jurisdiction. However, it takes both a

        1
          This instruction is identical to the instruction on flight contained in the Tennessee Pattern Jury
Instruction s. See T.P.I.—Crim. § 42.18 (4th ed . 1995).

                                                     -10-
             leaving the scene of the difficulty and a subsequent hiding out, evasion, or
             concealment in the com munity, o r a leaving o f the com munity fo r parts
             unkno wn, to con stitute flight.


             W e agree with Appellant that under this test, an instruction on flight was

 not warranted. While there was evidence that Appellant left the Westside Inn

 imm ediate ly after the events in question, there was no evidence of any

 “subsequent hiding out, evasion, or concealment in the community, or a leaving

 of the community for parts unkno wn.” Thu s, the tria l court e rred w hen it g ave this

 instruction. Howe ver, we ag ree with the State that this was harmless error. The

 trial court instructed the jury that whether Appellant fled was a question solely for

 their decision , that they ne ed not infe r flight, and that flight alone was insufficient

 to prove guilt. This, together with the o verwhe lming pr oof of Ap pellant’s gu ilt,

 renders any error as to the flight instruction harmle ss. See State v. S mith, 893

 S.W.2d 908, 918 (Tenn . 1994); State v. W hittenm eir, 725 S.W.2d 686, 688–89

 (Tenn. Crim. App. 198 6) see also Tenn. R. App. P. 36(b). This issue has no

 merit.



                V. INSTRUCTION ON ADMISSIONS AGAINST INTEREST




             Appe llant contends that the trial court erred when it gave the jury an

 instruction about a dmiss ions aga inst interes t.2 This instruction was as follows:

                   Evidence has been introduced in this trial of a statement or
             statem ents by the defendant made outside the trial, to show an admission
             against interest. An admission against interest is a statement by the
             defendant which acknowledges the existence or truth of some fact
             necessary to be proven to e stablish the guilt of the de fendant or which


         2
          W e not e tha t App ellant does not c laim that h is sta tem ent to Offic er Sa mp les ab out b eing a t the
W ests ide In n wa s inad mis sible h ears ay. Ind eed , the s tatem ent is clear ly adm issib le und er Ru le 803 (1.2) of
the Tennessee Rules of Evidence as an admission by a party. Rather, Appellant merely contends that the
jury instruction about admissions against interest was not warranted in this case.

                                                         -11-
            tends to show guilt of the defend ant or is evid ence o f some materia l fact,
            but not am ounting to a confe ssion.
                   W hile this evidence ha s been re ceived, it remains your duty to
            decide if in fact such statement was ever made. If you believe a statement
            was not made by the de fendan t, you sho uld not co nsider it. If you decide
            the statement was m ade by th e defen dant, you must jud ge the tru th of the
            fact stated. In so determining, consider the circumstances under which the
            statement was made. Also consider whether any of the other evidence
            before you tends to contradict the sta teme nt in whole or in part. You must
            not, however, arbitrarily disrega rd any part of any statement, but rather
            shou ld consider all of any statement you believe was made and is true.
            You are the so le judge of w hat weig ht shou ld be given such sta temen t. If
            you decid e a sta teme nt was mad e you s hould cons ider it with all the other
            evidence in the case in determining the defendant’s guilt or innocence.3


            In Helton v. State, 547 S.W.2d 564 (Tenn. 1977), the Tennessee Supreme

 Court set forth a definition for admissions against interest. Th e Suprem e Court

 stated:

            The distinction between an admission and a confession is blurred.
            Genera lly, however, a confession is a statement by the accused that he
            engaged in cond uct wh ich constitutes a crime. . . . An admission is an
            acknowledgment by the accused of certain facts which tend together with
            other facts, to establish his guilt; while a confession is an
            acknowledgement of guilt itself. An admission, then, is something less
            than a confession and, unlike a confession, . . . an admission is not
            sufficient in itself to support a conviction.

 Id. at 567 (citatio n and inte rnal quo tations om itted); see also State v. Kyger, 787

 S.W .2d 13, 23 n.2 (Te nn. Crim . App. 19 89).



            Officer Samples testified that when he located Appellant on December 5,

 1996, he told A ppellant th at he wante d to talk to him about the incident that

 occurred at the Westside Inn. Appellant then denied being at the Westside Inn

 and said that he did no t have any reason to be at that location. Wh en Sa mple s

 then confro nted A ppella nt with the fact tha t he ma tched the descriptio n of a

 subject who had used the telephone at the Westside Inn, Appellant admitted that


        3
        This instruction is identical to the instruction on admissions against interest contained in the
Tenn essee Pattern J ury Instruc tions. See T.P.I.—Crim. § 42.11(a ) (4th ed. 1995).

                                                    -12-
 he had been at that location and had used the telephone. We conclude that

 Appe llant’s statement that he had used the telephone at the Westside Inn,

 considered together with Davidson’s testimony that her assailant had used the

 telephone shortly befo re attacking her and Appellant’s initial denial that he had

 been to the W estsid e Inn, is evidence th at tends to establish guilt. Thus, the

 statement was an admis sion aga inst interes t.4 See generally State v. Anto nio

 George Wh ite, No. 775, 1987 WL 25166, at *1 (Tenn. Crim. App., Knoxville, Dec.

 1, 1987) (stating that defendant’s statement denying involvement in the crime but

 admitting being at the crime scene with another perpetrator was an admission

 under Helton). There fore, we c onclud e that the tria l court properly gave the

 instruction on admissions against interest. Further, the trial court’s instruction

 clearly stated that it was the jury’s responsibility to determine whether Appellant

 had made any admission and if he had, to determine whether the statements

 were entitled to an y weight.               This, together with the overwhelming proof of

 Appe llant’s guilt, convinces us that any error in giving the instruction on

 admissions against interest was, at worst, harmless. See Tenn. R . App. P. 36(b).

    This issu e has n o merit.



                                 V. RIGH T TO A SP EEDY TRIAL




            Appellant contends tha t the trial court erred when it failed to dismiss the

 indictment on the basis that Appellant’s right to a speedy trial had been violated.




        4
         We note that in order to be considered an admission against interest under the Helton standard,
the statement must only contain an “acknowledgement by the accused of certain facts which tend together
with other facts, to establish his guilt.” 547 S.W.2d at 567. There is no requirement, such as there is for the
“statement against interest” exception to the hearsay rule, that the statement must be against the
declarant’s pecuniary or propriety interest or must tend to subject the declarant to civil or criminal liability at
the time the statem ent is m ade. See Tenn. R. Evid. 804(b)(3).

                                                     -13-
       The United States and Tennessee Constitutions guarantee the criminal

defendant the right to a speed y trial. U.S. Co nst. am end. VI; T enn. C onst. art. I,

§ 9; State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997). The right to a speedy trial

is also statu tory in Ten nesse e. See Tenn. Code Ann. § 40-14-101 (19 97). In

addition, the Tenn essee R ules of Criminal Procedure provide for the dismissal

of an ind ictme nt, pres entm ent, info rmatio n or crim inal co mpla int “[i]f ther e is

unneces sary delay in presenting the charge to a grand jury against a defendant

who has b een h eld to answer to the trial court, or if there is unnecessary delay

in bringing a defe ndant to trial . . . .” Tenn. R. Crim . P. 48(b).



       When an accused seeks the dismissal of a prosecution based upon the

denial of the constitutional right to a speedy trial, the accused must establish a

period of dela y that is “p resum ptively prejudicial.” State v. Jefferson, 938 S.W.2d

1, 12 (Te nn. Crim . App. 19 96) (citing Doggett v. United States, 505 U.S. 647,

651, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520 (19 92)); Barker v. Wingo, 407 U.S.

514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). The length of the delay

is dependent upon the peculiar circumstances of each case, and the delay that

can be tolerate d for “an ordinary street crime” is generally much less than for a

serious, c omple x felony ch arge. Barker, 407 U.S. at 530–31, 92 S.Ct. at 2193.

A delay of one year or longer marks the point at which courts deem the delay

unrea sona ble enoug h to trigger fu rther inqu iry.      Utley, 956 S.W .2d at 494;

Dogg ett, 505 U.S. a t 652, n .1, 112 S.Ct. a t 2691 , n.1. If this thresh old is crossed,

a balancing test determines the merits of the speedy trial issue. In State v.

Bishop, 493 S.W.2d 81, 83–85 (Tenn. 1973), our Suprem e Court recognized and

adopted the balancing test set forth in Barker in which four factors must be

balanced. The factors are (1) the length of the delay, (2) the reasons for the

                                          -14-
delay, (3) the accuse d’s assertion of the righ t to speedy trial, and (4) the

prejudice resulting fro m the d elay. Barker, 407 U.S. at 531, 92 S.Ct. at 2192;

Bishop, 493 S.W.2d at 83–84.



       In this case, Appellant was arrested and charged on December 5, 1996,

was indicted on January 30, 1997, asserted his right to a speedy trial on July 25,

1997, and was tried on September 29–30, 1997. Because the ten month period

of delay between Appellant’s arrest/charge and trial was less than one year, the

delay was no t “presum ptively prejud icial” within the mean ing of Barker.

Therefore, we need not address the remaining factors of the Barker test. See

Utley, 956 S.W.2d at 494. H oweve r, it is worth noting tha t in addition to failing to

show that the period of delay in bringing him to tria l was “p resum ptively

prejudicia l,” Appellant has failed to identify any prejudice that he suffered

because of the de lay. Un der the se circ ums tance s, we h old tha t Appe llant’s right

to a spee dy trial was n ot violated u nder the United S tates and Tennessee

Cons titutions. Th is issue ha s no m erit.



       Accordingly, the judgment of the trial court is AFFIRMED.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE


CONCUR:


___________________________________
DAVID G. HAYES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE

                                          -15-
