Gary W. Phelps v. David Mills ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
December 11, 1998
Cecil W. Crowson
Appellate Court Clerk
GARY PHELPS
) NO. 01C01-9802-CC-00088
Appellant, )
) HICKMAN COUNTY NO. 96-5182C
VS. )
) HON. HENRY DENMARK BELL,
DAVID MILLS, Warden ) JUDGE
)
Appellee. ) (Habeas Corpus)
)
) AFFIRMED - RULE 20
ORDER
Appellant, GARY PHELPS, appeals the trial court's summary dismissal of his
petition for writ of habeas corpus. Appellant claims his indictment for aggravated
rape and aggravated sexual battery was void for failing to set forth the requisite
mens rea for each offense.
Our Supreme Court’s decision in Hill established the requirements for a valid
indictment when the legislature does not expressly require nor plainly dispense with
the requirement for a culpable mental state, and the indictment fails to allege a
mental state. Those requirements are:
(1) the language of the indictment [must be] sufficient to meet the
constitutional requirements of notice to the accused of the charge
against which the accused must defend, adequate basis for entry of
a proper judgment, and protection from double jeopardy;
(2) the form of the indictment [must meet] the requirements of Tenn.
Code Ann. § 40-13-202; and
(3) the mental state [must be able to] be logically inferred from the
conduct alleged.
State v. Hill, 954 S.W.2d 725, 726-27 (Tenn. 1997).
The issue in this appeal falls squarely within the purview of Hill. The
indictment in question was returned in October 1990, and used the following
language:
“Gary Phelps heretofore on or before the 12th day of December,
1989, in the County and State aforesaid did unlawfully sexually
penetrate [victim’s name], a child less than thirteen (13) years of age
at the time of the commission of this offense, in violation of TCA 39-
13-502.”
“. . . on or before the 12th day of December, 1989, in the County and
State aforesaid, the said Gary Phelps, did [sic] unlawfully and with
force or coercion, did have unlawful sexual contact with [victim’s
name], a child under the age of thirteen (13) years of age, in violation
of TCA 39-13-505.”
Applying the Hill analysis to this indictment, the appellant’s claim fails.
The judgment of the trial court is affirmed pursuant to Rule 20, Tennessee
Court of Criminal Appeals. It appearing that the appellant is indigent, costs shall be
taxed to the state.
So ordered. Enter:
_______________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
PAUL G. SUMMERS, JUDGE
____________________________
L.T. LAFFERTY, SENIOR JUDGE