IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
SEPTEMBER 1997 SESSION October 30, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
CARL HYSON, JR., )
) C.C.A. NO. 03C01-9611-CR-00393
Appellant, )
) JOHNSON COUNTY
VS. )
) HON. LYNN W. BROWN,
HOWARD CARLTON and ) JUDGE
STATE OF TENNESSEE )
)
Appellees. ) (Habeas corpus)
FOR THE APPELLANT: FOR THE APPELLEES:
CARL HYSON, JR., pro se JOHN KNOX WALKUP
# 236076 NECC Attorney General & Reporter
POB 5000
Mountain City, TN 37683 MICHAEL J. FAHEY, II
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
DAVID CROCKETT
District Attorney General
Rt. 19, Box 99
Johnson City, TN 37601
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The petitioner filed his petition for writ of habeas corpus on August 8, 1996,
alleging that his 1994 convictions for aggravated sexual battery must be set aside
pursuant to this Court’s opinion in State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-
00267, Wayne County (Tenn. Crim. App. filed June 20, 1996, at Nashville). Specifically,
he claims that the indictment charging him with multiple counts of aggravated rape fails
to allege an essential element of the crimes and his convictions must therefore be set
aside. The court below summarily denied the petition on the grounds that it failed to state
a basis for relief. The petitioner appeals. We affirm the judgment below.
The charges against the petitioner provide that he “did unlawfully and
feloniously have sexual penetration with [the victim], . . . a child under the age of thirteen
years, contrary to TCA, Section 39-13-502.” In Hill, the indictment alleged merely that the
defendant had “unlawfully sexually penetrate[d] [the victim] a person less than thirteen
(13) years of age.” This Court found that the use of the word “unlawfully” was not
sufficient to allege the defendant’s mens rea, an essential element of the offense.
Accordingly, the indictment was found fatally defective.
The indictment in the petitioner’s case is significantly different. In addition
to alleging that the crimes were committed “unlawfully,” the indictment provides that the
petitioner committed the offenses “feloniously.” As pointed out by the State, Judge Tipton
of this Court has previously considered allegations similar to those of the petitioner’s in
which the defendant had been charged with “unlawfully and feloniously sexually
penetrat[ing] [the victim] by use of force or coercion.” See Charles Gates v. State, No.
03C01-9510-CC-00313, Bradley County (Tenn. Crim. App. Order filed Aug. 16, 1996, at
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Knoxville). In that case, Judge Tipton ruled as follows:
Historically, the word 851 S.W.2d 157, 164 (Tenn. 1993); Passarella v. State,
891 S.W.2d 619, 626 (Tenn.
Crim. App. 1994). No such grounds have been demonstrated here: the “defect” about
which the petitioner complains did not divest the trial court of jurisdiction or render the
subsequent post-indictment proceedings a nullity. Nor does the petition set forth grounds
for relief under the post-conviction act.1 The indictment charging the petitioner with
aggravated rape was sufficient on which to base valid convictions, and no evidentiary
1
Furthermore, as noted by the State, the instant petition was not filed in the county in which the
conviction s occu rred. Acc ordingly, the c ourt below lacked jurisdiction to conside r it as a petition fo r post-
conviction relief. See Oliphan t v. State, 806 S.W .2d 215, 217 (Tenn. Crim . App. 1991).
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hearing was therefore necessary. The judgment below is therefore affirmed.
_________________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
DAVID G. HAYES, Judge
______________________________
WILLIAM M. BARKER, Judge
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