### FILED August 16, 199

9 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE MARCH 1999 SESSION

JESSE L. DABBS, * C.C.A. # 03C01-9806-CR-00199 Appellant, * MORGAN COU NTY VS. * Hon. E. Eugene E blen, Judge STATE OF TENNESSEE, * (Habeas Corpus) Appellee. *

For Appellant : For Appellee : Jesse L. Dabbs, pro se John Knox Walkup BMCX, Box 2000 Attorney General and Repor ter Wartburg, TN 37887 Ellen H. Pollack Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243 Frank A. Ha rvey Assistant District A

ttorney General P.O. Box 703 Kingston, TN 37763

OPINION FILED:__________________________

AFFIRMED
GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, Jesse L. Dabbs,appeals the trial court's dismissal of his petition for writ of habeas corpus. In this appeal of r ight, the single iss ue presented for review is whether the petition w as properly dismissed

without the appointment of counsel and without an evidentiary heari ng. We affirm the judgment of the trial court.

On June 8, 1990, the petitioner w as indicted on six count s of aggravated rape, tw

o counts of aggravated ki dnapping, and one count of attempted aggravated kidnapping . On June 6, 1991, the petitioner entered best interest gui lty pleas to five counts of aggr avated rape and one count of attempted ki dnapping. The trial court imposed Range I sentences as follows:

Offense Term Aggravated rape 20 years Aggravated rape 20 years Aggravated rape 20 years Attempt to com mit aggravated kidn apping 5 years Aggravated rape 22-1/2 years Aggravated rape 22-1/2 years
The two twenty-tw

o and one-half year sentences w ere ordered to be served concurrently

with each other but consec utively with the remaining sentences. The aggregate term of the Range I sentence is 87-1/2 year s. Other counts of the indictments were dismis sed as a result of the plea agr eement. The petitioner appealed the sentence imposed by the trial court. On Septe mber 15, 1994, this court affirmed the sentence. State v. Jesse L. Dabbs , No. 01C01-9308-CR-00253 (Tenn. Crim. App., at Nashv ille, Sept. 15, 1994). Appli cation for permission to appeal to the supreme court w as denied January 30, 1995.
The petitioner filed this petiti on for writ of habeas corpus on April 2,3 1997. He alleged that he was illegally imprisoned and warranted relief due to fatally deficient indictments for agg ravated rape and attempted agg ravated kidnapping. Two aggravated rape indictments brought pursuant to the 1989 Act allege, in pertinent part, as follows :

that JESSE L. DABBS ... did engage in unlawful sexual penetration of [the victim] .. . and force or coercion w as used ... and Jesse L. Dabbs w as armed with a weapon .

.. in violation of [Tenn. Code Ann.] § 39-13-502 .... The remaining three aggr avated rape indictments for offenses oc curring before the 1989 Act allege, in pertinent part, as follows:

that JESSE L. DABBS ... wi th force and arms, ... unlawfully, and feloniousl y committed the crime of aggravated rape by

subjecting [the vic

tim] to unlawful sexual penetration by for ce or coercion whil e ... armed with a deadly weap

on ... in violation of [Tenn. C ode Ann.] § 39-2-603 .... The sixth challenged indi ctment for attempted aggravat ed kidnapping is not incl uded in the record and any is sue regarding the sufficienc y of that indictment is w aived. Tenn. R. App. P. 36(a).

The petitioner contended that the indi ctments failed to state the required mens rea pursuant to Tenn. Code Ann. § 39-11-301 and, ther efore, the trial court lacked jurisdic

tion to adjudicate guilt.The petitioner based his claim upon an opinion by this court i n State v. Roger Dale Hill, Sr. , No. 01C01-9508-CC-00267 (Tenn. Crim. App., at Nashv ille, June 20, 1996). When the supreme court r eversed that decision, the trial c ourt dismissed the petitioner 's complaint. See State v. Hill , 954 S.W.2d 725 (Te nn. 1997).

In Hill , our supreme co urt ruled that "a n indictment whic h fails to allege [a] mental state will be sufficient to support ... [a conv iction] so long as, [among other things], the mental st ate can be logically

inferred from the conduct alleg ed."4 Id. , at 726-27. The indictment in Hill charged that "[the defendant] did unlawfully sexually penetrate [the victim] a person less than thirteen (13) years of age, in violation of Tennessee Code Annotated 39-13-502. ..." Id. , slip op. at 5 (alteration in original). In Ruff v. State , 978 S.W.2d 95, 96-97 (Tenn. 1998), our supreme court applied the Hill analysis to determine w hether a post-1989 Act indictment for aggravated sexual

battery was sufficient. Our high court held that "the intentional nature of aggravated sex ual battery may be inferr ed from the conduct alleged in the indictment-- unlawful sexual contact." Id. at 97 (emphas is in orig inal). Our supreme court has held that the Hill analysis is applic able to pre-1989 Act indictment s, as well. Dykes v. Compton , 978 S.W.2d 528, 530 (Tenn. 1998).

The language of the indictments ch allenged here is substanti ally the same as that in Hill and Ruff . In our view, the c ulpable mental state for aggr avated rape can be l ogically

inferred from

the conduct a lleged. M oreover, o ur supreme court recently ruled that an indictment which mak es reference to the statute allegedly viol ated will serve a s satisfactory notice. State v. Carter , 988 S.W.2d 145 (Tenn. 1 999). Her e, there was a statu tory refe rence in e ach indic tment. I n our view, these holdings control th e disposition of the case. The indi ctments satisfy the standards established by our supreme court.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge5 CONCUR:

_____________________________ Norma McGee Ogle, Judge

_____________________________ Cornelia A. Clark, Spec ial Judge