FILED

August 16, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MARCH 1999 SESSION

JESSE L. DABBS, * C.C.A. # 03C01-9806-CR-00199 

Appellant, * MORGAN COUNTY

VS. * Hon. E. Eugene Eblen, 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 Reporter

Wartburg, TN 37887 

Ellen H. Pollack

Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North 

Nashville, TN 37243

Frank A. Harvey 

Assistant District Attorney General

P.O. Box 703

Kingston, TN 37763

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE
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OPINION

The petitioner, Jesse L. Dabbs, appeals the trial court's dismissal of

his petition for writ of habeas corpus. In this appeal of right, the single issue

presented for review is whether the petition was properly dismissed without the

appointment of counsel and without an evidentiary hearing. We affirm the judgment

of the trial court. 

On June 8, 1990, the petitioner was indicted on six counts of

aggravated rape, two counts of aggravated kidnapping, and one count of attempted

aggravated kidnapping. On June 6, 1991, the petitioner entered best interest guilty

pleas to five counts of aggravated rape and one count of attempted kidnapping. 

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 commit aggravated kidnapping 5 years

Aggravated rape 22-1/2 years

Aggravated rape 22-1/2 years 

The two twenty-two and one-half year sentences were ordered to be

served concurrently with each other but consecutively with the remaining sentences. 

The aggregate term of the Range I sentence is 87-1/2 years. Other counts of the

indictments were dismissed as a result of the plea agreement. The petitioner

appealed the sentence imposed by the trial court. On September 15, 1994, this

court affirmed the sentence. State v. Jesse L. Dabbs, No. 01C01-9308-CR-00253

(Tenn. Crim. App., at Nashville, Sept. 15, 1994). Application for permission to

appeal to the supreme court was denied January 30, 1995. 

The petitioner filed this petition for writ of habeas corpus on April 2,
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1997. He alleged that he was illegally imprisoned and warranted relief due to fatally

deficient indictments for aggravated rape and attempted aggravated 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 was

used ... and Jesse L. Dabbs was armed with a weapon ...

in violation of [Tenn. Code Ann.] § 39-13-502 ....

The remaining three aggravated rape indictments for offenses occurring before the

1989 Act allege, in pertinent part, as follows:

that JESSE L. DABBS ... with force and arms, ...

unlawfully, and feloniously committed the crime of

aggravated rape by subjecting [the victim] to unlawful

sexual penetration by force or coercion while ... armed

with a deadly weapon ... in violation of [Tenn. Code Ann.]

§ 39-2-603 ....

The sixth challenged indictment for attempted aggravated kidnapping is not included

in the record and any issue regarding the sufficiency of that indictment is waived. 

Tenn. R. App. P. 36(a). 

The petitioner contended that the indictments failed to state the

required mens rea pursuant to Tenn. Code Ann. § 39-11-301 and, therefore, the trial

court lacked jurisdiction to adjudicate guilt. The petitioner based his claim upon an

opinion by this court in State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-00267

(Tenn. Crim. App., at Nashville, June 20, 1996). When the supreme court reversed

that decision, the trial court dismissed the petitioner's complaint. See State v. Hill,

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

In Hill, our supreme court ruled that "an indictment which fails to allege

[a] mental state will be sufficient to support ... [a conviction] so long as, [among

other things], the mental state can be logically inferred from the conduct alleged." 
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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 whether a post-1989 Act indictment for

aggravated sexual battery was sufficient. Our high court held that "the intentional

nature of aggravated sexual battery may be inferred from the conduct alleged in the

indictment--unlawful sexual contact." Id. at 97 (emphasis in original). Our supreme

court has held that the Hill analysis is applicable to pre-1989 Act indictments, as

well. Dykes v. Compton, 978 S.W.2d 528, 530 (Tenn. 1998). 

The language of the indictments challenged here is substantially the

same as that in Hill and Ruff. In our view, the culpable mental state for aggravated

rape can be logically inferred from the conduct alleged. Moreover, our supreme

court recently ruled that an indictment which makes reference to the statute

allegedly violated will serve as satisfactory notice. State v. Carter, 988 S.W.2d 145

(Tenn. 1999). Here, there was a statutory reference in each indictment. In our view,

these holdings control the disposition of the case. The indictments satisfy the

standards established by our supreme court.

Accordingly, the judgment is affirmed.

________________________________

Gary R. Wade, Presiding Judge 
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CONCUR:

_____________________________

Norma McGee Ogle, Judge

_____________________________

Cornelia A. Clark, Special Judge