# FILED
December 18, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1997 SESSION

RANDY HENSLEY, * C.C.A. # 03C01-9703-CR- 00106 Appellant, * JOHNSON COUNTY VS. * Hon. Lynn Brown, Jud ge STATE OF TENNESSEE, * (Habeas Corpus)

Appellee. *

For Appellant : For Appellee : Randy Hensley, Pro Se John Knox Walkup # 099477 NECC Attorney General and Repor ter P.O. Box 5000 Mountain City, TN 37683 Michael J. Fahey, II Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 David E. Crockett District Attorney General Route 19, Box 99 Johnson City, TN 37601

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE1 In co unt o ne, th e def end ant w as fo und guilty as char ged and r ece ived a life se nten ce; in count fiv

e, the defend ant was convict ed of the l esser offense of assa ult and bat tery and r

eceived a sentence of eleven m onths, twenty-nine days. Habeas corpus relief is inappropriate for count five because that sent

ence has already

been served; t he defendant i s only i ncarcerated now f or the service o f his life sente nce. See Tenn. Code Ann. § 29-21- 101. We will never theless addr

ess the merits of the issue. 2 OPINION The petitioner, Randy Hensley, appeals the trial court's denial of his petition for habeas corpus rel ief. The single issue prese nted for review is w hether his indictments for robbery and assault with intent to commit murder, bot h of which led to convictions, 1 were void for the failur e to include all of the essentia l elements of the crime. In particular, the petitioner argues th at his indictments failed to as sert the requisite mens rea. It i s the contention of the petitioner that, due to the faulty indictments, the trial cour t lacked jurisdiction to enter a conviction or impose a sentence.
We affirm the judgment of the trial court.

The Greene County indictments at issue provided, in part, as follows: Count One: [D]id unlawfully and feloniously and forcibly take from the person of another ... [the v ictim] ... by violence or putting [

the victim] in fear. The robbery was accomplished by the use of a deadl y weapon. Count Five: [D]id unl awfully and feloniously and with malice aforethought assault [the victim] with the i ntent to commit murder in the first deg ree....
A writ of habeas corpus may be granted only when

the petitioner has established lack of jurisdiction for the order of conf inement or that he is otherwise entitled to immediate release bec ause of the expiration of his sentence. See Ussery v. Avery , 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell , 443 S.W.2d 839 (Tenn. Crim. App. 1969). Habeas corpus relief is available in this state on ly3 when it appears on the face of the j udgment or the record that the trial court was without jurisdicti on to convict or sentence the defendant or that the sentence of imprisonment has otherwis e expired. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992).

Tennessee Code Annotated § 39-11-301(c ) (1989) provides that

"[i]f the definition of an offense within this title does not plainly

dispense with the mental element, intent, knowledg e or recklessness suffices t o establish the culpable mental state." In State v. Roger Dale Hill, Sr. , No. 01C01-9508-CC-00 267 (Tenn. Cr

im. App., at Nashville, Jun e 20, 1996), rev'd , _____S.W.2d _____, No. 01-S-01-9701- CC-00005 (Tenn., at Nashvi lle, Nov. 3, 1997), a panel of this court ruled that the statutory offense of rape did not "plai nly dispense" with a mens rea of the crime and thus, the indictment, whic h did not allege a mens rea, d id not include an essential element of the offense and was, therefore, v oid.
On appeal, our supreme court overruled the intermediate court opinion, holding as follow s: [F]or offenses which neither expressly require nor plainly dispense with the req uirement for a culpable mental state, an indictment whic h fails to allege such mental state will be sufficient t o support prosecution and conviction for that offense so long as (1) the language of the indictment is sufficient to meet the constitutional requirements of notice to the ac cused of the charge against which the accused must defend, a

dequate basis fo r entry

of a proper judgment, and protecti on from double je opardy; (2) the form of the indictment meets th e requirements of Tenn. Code Ann. § 40- 13- 202; and (3) the mental state can be logically inferred from the conduct alleged.4 Hill , _____S.W.2d_____, slip op. at 3. The court ultimatel y ruled that the indictment for aggravated rape was sufficient because "the act for which the def endant [was] indicted, 'unlawful sexual penetration' ... is committable only if the principal acto r's
mens rea is intentional, knowi ng, or reckless. Thus, the required mental state may be inferred from the nature of the crimi nal conduct alleged." Id. , slip op. at 9.

Generally, an indictment must set forth the elements of the offense. State v. Perkinson , 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992). It is settled law that "[w]hen the indictment or pr esentment fails to fully state the crime, all subsequent proceedings are void. " Id. (citing State v. Morgan , 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979)). The histor ical significance of the ind ictment is well documented in the federal courts:

The general ... and univer sal rule ... is that all

the material facts and circumstanc es embraced in the definition of the offense must be stated, or the i ndictment will be defective. N o essential element of the crime c an be omitted without destroy ing the whole pleading . The omission cannot be supplied by intendment or implication, and the charg e must be made directly, and not inferentially or by

way of recital. United States v. Hess , 124 U.S. 483, 8 S. Ct. 571, 573 ( 1888). The provisions of our state and federal constituti ons guarantee the criminall y accused knowledg e of the "nature and cause of the accusation. " U. S. Const. amend. VI; Tenn. Const. art I, § 9. "Fair and reasonable notice of the charges against an accused is a fundamental constitutional requi rement." State v. Trusty , 919 S.W.2d 305, 309 (Tenn. 1996). To be sufficient, an indic tment must "inform the defendant of the precise charges; ... mus t enable the trial court upon conviction to enter an appropriate judgment; ... and mus t protect [the] defendant against double jeopardy." Id. As a matter of fairness, the constitutional requirement i s designed to afford the criminally accused w

ith an adequate opportunity to prepare any defense before the5 trial. See , e.g. , Pope v. State , 258 S.W. 775 (Tenn. 1924); Daniel v. State , 50 Tenn. 257 (1871).
Such a rigid rule has o ccasionally caused har sh results from the perspective of the state. At times, convictions hav e been set aside even though the prosecution gains no adv antage: At common law, even the slightest technical defect might fell an indictment. Si r Matthew Hale lamented the strictness with which indictments were viewed as a "blemish and inconvenience of the law" whereby "heinous and crying offenses escape by these unseem ly niceties to the reproach of the l aw, to the shame of the government, and to the encour agement of villainy, an d to the dishonor of God." 2 Sir Matthew Hale, The History of the Plea s to the Cro wn , 193 (London E. Ryder 1800) (1716). United States v. Wydermyer , 51 F.3d 319, 324 (2d Cir. 199 5).

In our view, the indi ctments in this case satis fy all of the requirements of Hill . Initially, the i ntermediate court's opinion i n Hill was based in part on Tenn. Code Ann. § 39-11-301(c) (1989), which provided that "[a] culpable menta l state is required ... unless the definition of the offense plainly dispenses with a mental element." The 1982 Act under whic h the defendant was convicted contains no similar provision.Thus, the indictment need only set forth the elements of the offenses as they were defined at th e time of the unlawful act. See Gregory L. Hatton v. State , No. 02C01-9611-CC-00407, slip op. at 2-3 (Tenn. Cri m. App., at Jackson, Feb. 19, 1997).

Robbery was defined as th e "felonious and forcible taking from the person of another, ... by v iolence or putting the per son in fear." Tenn. Code Ann. § 39-2-501(a) (repealed 1989). The indictment adequat ely sets forth those elements, as it alleges the defendant "feloniou sly and forcibly [too k] from the person of another6 ... by violence or putting [the victim] i n fear" and that the robbery w as "accomplished by the use of a deadly weapon ...." Moreover, under Hill , the use of force supports the logical inference that the robbery was an int entional act; that the defendant used a deadly weapon to accompli sh the act also supports that inference.

The indictment for assault is al so sufficient. Assault with intent to commit murder occurred under the 1982 Act when a person "feloniou sly and with malice aforethought assault[ed] any person, with int ent to commit murder ...." Tenn. Code Ann. § 39-2-103 (repealed 1989). This indictment charged that the defendant "did unlawfully and felonious ly and with malice aforethought assault ... wi th the intent to commit murder in the fir st degree ...." In our v

iew, that adequately

sets forth the elements of the offense as it was defined when the defendant committed the crime. In the alternativ e, by use of the rule establi shed in Hill , the phrases "malice aforethought" and "with intent to commit murder" support the inference that the act was intentional.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David H. Wel les, Judge

_____________________________ Jerry L. Smith, Judge