# FILED May 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1998
JAMES K. ROBBINS, ) C.C.A.NO. 03C01-9703-CC-00108 ) Appe llant, ) ) BLEDSOE COUNTY V. ) ) ) HON.LEE AS BURY, J UDGE STATE OF TENNESSEE, ) ) Appellee. ) (HABEAS C ORPU S)

FOR THE APPELLANT : FOR THE APPELLEE : JAME S K. R OBB INS, pro se JOHN KNOX WALKUP #114297, S. T.S.R.C. F. Attorney General& Reporter Route 4, Box 600 Pikevil le, TN 37367 TIMOTHY F.BEHAN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 J. MI CHAEL T

AYLOR District Attorn ey Ge neral JAME S W. P OPE , III Assistant Distri ct Attorney General First Ameri can Bank Bldg., 3r d Floor Dayton, TN 37321

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Peti tion er, J ames K. Robb ins, a ppea ls as of r ight from the trial c ourt’s dismissal of his pet ition f or writ of habeas corpus reli ef. We affirm the judgment of the trial cou rt.

Petiti oner was indicted on multipl e counts of aggravated r

ape and aggravated assa ult by the Scott County Grand Ju ry on July 1 5, 198 6. Follo wing a jury trial, Petiti oner was convicted on four (4)counts of aggr avated rape and one ( 1) countof agg ravated assault. The trialcourt sentenced him as a Range II esp ec iall y aggravated offender

to terms of forty (40) years on each ag gravated rap e convicti on and six (6)years on the aggr avated assaul t convict ion, allto be served concurrently. On October 22, 1996, Petiti oner filed a peti tion for habeas corpus reli ef which is the subject of this

appeal, chal lenging hi s four (4)aggravated r ape c onvictio ns. In essence, Petiti oner argues that his sentence s are void because t he culpable mental state for theoffense of aggravated r

ape was not all eged in the i ndictments and t hat the statute under w hich he w as con victed is un constitution al.

The ind ictmen ts agains t Petitioner re ad as follo ws: [O]n or abo ut 198 4 throu gh Ap ril, 1986, in the Co unty and State aforesaid, the said J ames K . Rob bins d id unla wfully an d felon iously engage in sexual pe netration with [victim], a female chil d under the age o f 13 years, and d id there by com mit an aggra vated rape a gains t said child, against t he peace and dignit y of the State of Tennessee.
In support of h is argument regar ding the all egedly insuf ficien t indict ments, Petit ioner reliesupon the decision of this Co urt in State v. Rog er Da le Hill , C.C.A. No. 01C01- 9508-CC-00267, Wa yne Coun ty (Tenn. Crim . App., Nash ville, June 20, 1996 ).-3-

However our supreme court reversed t his Court’ s decision i n Hill
. See State v. Hill , 954 S.W .2d 725 (Tenn . 1997).
Furthermore, a pane l of this Court has previ ously held in a simil ar case that the ruling of

this Court

in State v. Rog er Da le Hill , was based upon an interpr etation of Tennessee Code Ann o tated sect ion 39-11-301( c), which was enacted in 1989. See Gregory L. Hatt

on v. State of Tennessee , C. C.A. NO. 02C01-9611-CC-00407, slip op. at 2, La ke Co unty (T enn. C rim. A pp., Ja ckso n, Feb . 19, 19 97). A s in Hatton , Petiti oner was convicted of an offense which occurr ed prior to enactment of the 1989 revisi ons to th e Crimi nal Code . The statut e under which Pe tit ioner was convi cted d ef ined aggravated r ape in part as the “unlawful sexualpenetrati on of another accompanied by any of t he following circumstances” includi ng the age of the vic tim being less than thirteen yea rs. Tenn. Code Ann. § 39-2-603(a)(4) (r epealed 1989). The statutory require ments for an indictment alleging this or any other crim e were found in Tennessee Code Annotated section 40- 13-202 (repeal ed 1989) and read as follows : The indict ment must state t he facts const ituti ng the offens e in ordinary and concise languag e, without prolix ity or

repetit ion, in such a manner as to e nable a p erson of com mon unde rstand ing to k now w hat is intended, and with th at degree of cert ainty whi ch will enable thecourt, on con viction, to pro nounc e the pro per judg ment. We conc lude th at the la ngua ge in the indi ctment chargi ng Petiti oner with aggr avated rape meets these requirements, and was therefore su ff icient u nder th e law a s it existed at the t ime of the offenses.

Moreover, even if Hill did apply t o t he instan t indict ment, we think the allegati on t hat Petiti oner “ did unlawful ly and fel oniously eng age in sexual penetrati on-4-

w ith [vict im], a femal e child under the age of 13 years, and di d ther eby com mit a n aggravated rape against said chil d” is suffi cient to all ege any necessa ry culpa ble men tal state. Obviously, the act for which Peti tioner i s indicted, unlawfully an d felonio usly enga gin g in se xual pe netratio n with a thirteen -year-o ld child, is “com mittab le only if

the princi pa l act or’s mens rea is intentional, knowing, or reckless.” Hill , 954 S.W .2d at 729 . This issu e is withou t merit.

Petiti oner also argues t hat the statut e und er whic h he w as co nvicted is unc on stitution al. However, that particul ar statute has repeatedl y been held to be cons titutiona l. See , e.g. , State v. Wilkins , 655 S.W.2d 914 (Tenn . 1983). This issue is without m erit.

Petition er’s petiti on may be dismissed sum mari ly if the petition fails to state a cogniza ble claim
. See Passarella v . Stat e , 891 S.W.2 d 619 , 62 7 (Te nn. Cri m. App. 1994); Ten n. Code A nn. § 29-21-1 09. The tri al court pr operly di smissed Petiti oner’s petition.
The judgment of the t rial cour t is af firmed.-5- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ WILLIAM B. ACREE, JR., Special Judge