FILED

May 20, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1998

JAMES K. ROBBINS, ) C.C.A. NO. 03C01-9703-CC-00108

)

Appellant, )

) BLEDSOE COUNTY

V. ) 

)

) HON. LEE ASBURY, JUDGE

STATE OF TENNESSEE, ) 

)

Appellee. ) (HABEAS CORPUS) 

FOR THE APPELLANT: FOR THE APPELLEE:

JAMES K. ROBBINS, pro se JOHN KNOX WALKUP 

#114297, S.T.S.R.C.F. Attorney General & Reporter

Route 4, Box 600

Pikeville, TN 37367 TIMOTHY F. BEHAN 

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

J. MICHAEL TAYLOR

District Attorney General 

JAMES W. POPE, III

Assistant District Attorney General

First American Bank Bldg., 3rd Floor

Dayton, TN 37321

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Petitioner, James K. Robbins, appeals as of right from the trial court’s

dismissal of his petition for writ of habeas corpus relief. We affirm the judgment of

the trial court.

Petitioner was indicted on multiple counts of aggravated rape and aggravated

assault by the Scott County Grand Jury on July 15, 1986. Following a jury trial,

Petitioner was convicted on four (4) counts of aggravated rape and one (1) count of

aggravated assault. The trial court sentenced him as a Range II especially

aggravated offender to terms of forty (40) years on each aggravated rape conviction

and six (6) years on the aggravated assault conviction, all to be served concurrently.

On October 22, 1996, Petitioner filed a petition for habeas corpus relief which is the

subject of this appeal, challenging his four (4) aggravated rape convictions. In

essence, Petitioner argues that his sentences are void because the culpable mental

state for the offense of aggravated rape was not alleged in the indictments and that

the statute under which he was convicted is unconstitutional. 

The indictments against Petitioner read as follows: 

[O]n or about 1984 through April, 1986, in the County and State

aforesaid, the said James K. Robbins did unlawfully and feloniously

engage in sexual penetration with [victim], a female child under the age

of 13 years, and did thereby com mit an aggravated rape against said

child, against the peace and dignity of the State of Tennessee.

In support of his argument regarding the allegedly insufficient indictments, Petitioner

relies upon the decision of this Court in State v. Roger Dale Hill, C.C.A. No. 01C01-

9508-CC-00267, Wayne County (Tenn. Crim. App., Nashville, June 20, 1996).
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However our supreme court reversed this Court’s decision in Hill. See State v. Hill,

954 S.W .2d 725 (Tenn. 1997). 

Furthermore, a panel of this Court has previously held in a similar case that

the ruling of this Court in State v. Roger Dale Hill, was based upon an interpretation

of Tennessee Code Annotated section 39-11-301(c), which was enacted in 1989.

See Gregory L. Hatton v. State of Tennessee, C.C.A. NO. 02C01-9611-CC-00407,

slip op. at 2, Lake County (Tenn. Crim. App., Jackson, Feb. 19, 1997). As in Hatton,

Petitioner was convicted of an offense which occurred prior to enactment of the 1989

revisions to the Criminal Code. The statute under which Petitioner was convicted

defined aggravated rape in part as the “unlawful sexual penetration of another

accompanied by any of the following circumstances” including the age of the victim

being less than thirteen years. Tenn. Code Ann. § 39-2-603(a)(4) (repealed 1989).

The statutory requirements for an indictment alleging this or any other crime were

found in Tennessee Code Annotated section 40-13-202 (repealed 1989) and read

as follows: 

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. 

We conclude that the language in the indictment charging Petitioner with aggravated

rape meets these requirements, and was therefore sufficient under the law as it

existed at the time of the offenses.

Moreover, even if Hill did apply to the instant indictment, we think the

allegation that Petitioner “did unlawfully and feloniously engage in sexual penetration
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with [victim], a female child under the age of 13 years, and did thereby com mit an

aggravated rape against said child” is sufficient to allege any necessary culpable

mental state. Obviously, the act for which Petitioner is indicted, unlawfully and

feloniously engaging in sexual penetration with a thirteen-year-old child, is

“committable only if the principal actor’s mens rea is intentional, knowing, or

reckless.” Hill, 954 S.W .2d at 729. This issue is without merit. 

Petitioner also argues that the statute under which he was convicted is

unconstitutional. However, that particular statute has repeatedly been held to be

constitutional. See, e.g., State v. Wilkins, 655 S.W.2d 914 (Tenn. 1983). This issue

is without merit.

Petitioner’s petition may be dismissed summarily if the petition fails to state

a cognizable claim. See Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.

App. 1994); Tenn. Code Ann. § 29-21-109. The trial court properly dismissed

Petitioner’s petition.

The judgment of the trial court is affirmed.
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____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JERRY L. SMITH, Judge

___________________________________

WILLIAM B. ACREE, JR., Special Judge