Appeal, The Relying In Part Upon State v. Roger Dale Hill, No. 01C01-9508 ( 1996 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
April 9, 1997
ROBERT E. NOWELL, )
Cecil Crowson, Jr.
) Appellate C ourt Clerk
Petitioner, ) C. C. A. NO. 02C01-9612-CC-00464
)
vs. ) LAKE COUNTY
)
BILLY COMPTON, WARDEN, ) No. 96-7557
)
Respondent. )
ORDER
This matter is before the Court upon the state’s motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of Criminal Appeals. The
case before this Court represents an appeal from the trial court’s denial of the
petitioner’s petition for writ of habeas corpus. The record was filed on December 17,
1996, and the petitioner’s brief was filed on February 3, 1997. The petitioner was
originally indicted on one count of aggravated rape and two counts of aggravated
sexual battery in May 1989, and pled guilty to the same in March 1990. In the present
appeal, the petitioner, relying in part upon State v. Roger Dale Hill, No. 01C01-9508-
CC-00267 (Tenn. Crim. App. June 20, 1996), contends the judgment entered against
him is void because the indictments failed to allege the mens rea of the offense
charged.
Having reviewed the state’s motion in light of the petitioner’s response
and the entire record on appeal, we conclude that the motion is well-taken and should
be granted. The trial judge dismissed the petitioner’s petition stating that “[a]llegations
concerning the sufficiency of an indictment are not subject to habeas corpus relief.” It is
well established that challenges to the sufficiency of an indictment cannot be tested in a
habeas corpus proceeding. See Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim.
App. 1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). A panel of
this Court recently held the same in a capital case. Barber v. State, No. 01C01-9408-
CR-00281 (Tenn. Crim. App., Feb. 23, 1995).
Nonetheless, we have considered the substance of the petitioner’s claim
and determine it to be without merit. Hill represents a direct appeal from a case
involving an indictment rendered subsequent to the 1989 revisions to the Criminal
Code. Conversely, the appeal in the present case stems from a denial of a petition for
writ of habeas corpus and involves an indictments issued prior to the 1989 changes in
the Code. The opinion in Hill was based upon this Court’s interpretation of T.C.A. § 39-
11-301(c), which became effective November 1, 1989. That statute provides, in
pertinent part, that “[a] culpable mental state is required within this title unless the
definition of the offense plainly dispenses with a mental element.” Prior to 1989,
however, the Criminal Code did not contain a comparable statute. Accordingly, the
decision in Hill does not control our review of the issue raised herein.
At the time of the offense in this case, aggravated rape was defined as
the “unlawful sexual penetration of another accompanied” by certain enumerated
aggravating circumstances, including that the victim is less than thirteen (13) years old.
T.C.A. § 39-2-603 (1982). Aggravated sexual battery was defined as the “unlawful
sexual contact with another accompanied” by certain enumerated aggravating
circumstances, including that the victim is less than thirteen (13) years old. T.C.A. § 39-
2-606 (1982).
The indictments at issue before us charged that the petitioner “did
unlawfully and feloniously sexually penetrate [the victim, a person] less than thirteen
(13) years of age” and “did unlawfully and feloniously have sexual contact with [the
victims, persons] less than thirteen (13) years of age.” This language was sufficient
under the law as it existed at the time. As noted above, the Criminal Code did not
contain a provision similar to § 39-11-301(c) (1989). The statutory requirements for an
indictment were found in § 40-1802 (now § 40-13-202 (1990)), which provided simply
that:
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The indictment must state the facts constituting the offense in
ordinary and concise language, without prolixity or repetition, in such a
manner as to enable a person of common understanding to know what is
intended, and with that degree of certainty which will enable the court, on
conviction, to pronounce the proper judgment.
Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973)
(emphasis supplied), while addressing the sufficiency of an indictment charging the
offense of murder, our Supreme Court stated the following:
While it seems clear that the indictment in Witt was insufficient in
that it failed to charge an element, that the murder was committed
unlawfully, in either the language of the statute or common law or words
of equivalent import, the decision is confusing because of the language,
‘fatally defective in omitting the charge that the offense was committed
feloniously, or with malice aforethought; and containing no words of
equivalent import.’ It is clear, however, that had the indictment used the
words ‘feloniously’ or ‘unlawfully’, it would have been sufficient.
We agree with this proposition. By containing the words found in the language of the
statute, the indictments at issue here sufficiently apprised the appellant of the offense
charged under the law at the time, and is therefore valid. Thus, the petitioner’s attack
must fail.
For the reasons stated above, it is hereby ORDERED, pursuant to Rule
20, Rules of the Court of Criminal Appeals, that the judgment of the trial court
dismissing the petition for writ of habeas corpus is affirmed. Costs of this appeal shall
be assessed against the petitioner.
Enter, this the ___ day of March, 1997.
__________________________________
DAVID G. HAYES, JUDGE
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__________________________________
JOE B. JONES, PRESIDING JUDGE
__________________________________
PAUL G. SUMMERS, JUDGE
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