1 Prev ious ruling s of th is cou rt hav e held that “t he te rm ‘unlaw ful’ do es no t suff icient ly allege t he mens rea of intent.” See State v. Jones , No. 02C01-9503-CR-00061 ( Tenn. Crim. App. at Jack son, M ar. 7, 1997 ); State v. W hite , No. 03C01-9408-CR-00277 ( Tenn. Crim. App. at Knoxv ille, June 7, 19 95). Th e term “‘unlawfully’ doe s not in the o rdinary use of the wo rd conn ote mental culpability.” Id

.

Moreover, i mportation of the defini tion of the term “sexual cont act” to suppl

y the mens rea to the statutory definition of the offense has also be en rejected. A majority of jurisdictions have 

# FILED

March 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk 

## IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JA CKSON AUGUST SESSION, 1997

JAMES EDWARD HAYES, ) C.C.A. NO. 02C01-9610- CC-00326 ) Appe llant, ) ) ) LAKE COUNTY VS. ) ) HON. JOE G. RI LEY BILLY COMPTON,WARDEN, ) JUDGE ) Appellee. ) (Habeas Corpus)

SEPARATE CONCURRING
I join with the majority in affirming the dismis sal of the appellant’s wr it, however, I do so for differi ng reasons. The majority , finding that Hill governs disposition of this case, conc ludes, without more, that “ the mental state can be logically inferred

from the conduct alleged.” In Hill , our supreme court found the language “unlawful sex ual penetration” sufficiently encompassing in an indictment for aggravated rape

to support an inference that the penet ration was committed intentionally, knowingly or reckles sly. Hill , 954 S.W .2d at 72 9. That i s to say, logically, for penetr

ation of the victim to occur, it cannot be committed accidenta lly or in any other manner other than intentionally, know

ingly or reckles

sly. I view the holding in Hill to be fact-specific to a charge of aggravated rape, and, therefore, without further analysis to the charge at issue, is not controlling as to other crimes.

The charging language in the instant case, "did unlaw fully engage in sex

ual contact . . . in violation of T.C.A. 39-13-504 . . ., ” infers no mental state. 1 

## As a panelheld t hat th e om issio n of a n ess entia l elem ent fr om the c harg ing ins trum ent c ann ot be cure d by a citation or re ferenc e to the rele vant statu te. State v. Ma rsha ll , 870 S.W .2d 5 32, 5 37 (T enn . Crim

. App. 1993)(ci ting United Stat es v. Pupo , 841 F.2 d 1235 (4th Cir. 19 88)). See also U.S. v. Hooker , 841 F.2d 1225 , 122 7-12 28 (4 th Cir . 198 8)(c iting a t leas t eigh t fede ral circ uits in acc ord w ith this rule and “the vast majorit y of the state court

s”). “[ I]t i s the statement of facts i n the pleadi ng, rather than the statutory citation t hat is controlling.” Hooker , 841 S.W.2d at 1227-1228 ( citi ng United Stat

es v. Wuco , 535 F.2 d 1200 , 1202 n. 1 (9th Cir. 19 76); United Stat es v. Hutcheson , 312 U.S. 21 9, 229, 61 S.Ct. 463 , 464 (19 41)).

2 It is noted that the second element of this offense, “that the victim was less than 13 years of age,” coul d be establi shed by an “i ntenti onal, knowi ng, or reckl ess” mental stat e. Tenn. Code Ann. § 39-11-301(a)(1) and (c ). Our CRIMI NAL CODE requires t hat culpabi lit y must be addressed separately

with respect

to each material

element as many of our st atutory offenses are st ructured to contai n differe nt mental stat es for the r

espective el ements. Thus, the i nstant i ndicted cri me of aggravated sexual

battery requires di

fferent l evels of cul pability for each of the t

wo essential elements of the of

fense and an inst ruction that only one mental state for thi s offense is r equired would be erroneo us. Oth erwise, the end res ult would pr oduce a reck less-inten tional crim e. Kimmel , No. 02C01-9701-CR-00006. 

## -2- of this court held in Kimmel v. State , No. 02C01-9701-CR-00006 ( Tenn. Crim. App. at Jackson, Jan. 12, 1998), the language “sexual contact” does not exclude all inferences other than that the cr ime of aggravated sexu al battery was commit ted intentionally, knowingly or reckles sly. Clearly,the phrase “sexual contac t” could as easily infer an accidental or inadvertent act of contac t between the accused and the victim. Id. More importantly, our statute requires that, be fore conviction can occur for this offense, the proof must support an intentional touching. Tenn. Code Ann. § 39-13-501(6). 2 

## Thus, one could not conclude that the phrase “sexual contact ” excludes any form of contact other than that of “intentional.”

Notwithstanding the inability to infer the requisite mental state, a panel of this court has held, in a challe nge to an indictment for identic al reasons, that the challenge must fail because the offense charged is a general i ntent crime. Therefore, no mental state is req uired in the charging instrument. Kimmel , No. 02C01-9701-CR-00006; State v. Dison , No. 03C01-9602-CC-00051 (Tenn. Cr im. App. at Knoxville, J an. 31, 1997). The mens rea requirement when omitted from the statutory definition, need not be alleged in the charging instrument beca use it is imputed by the statute. Tenn. Code Ann. § 39-11-301(c). The distinguishing factor is the legislature’s prerogat ive of a mental state from a range of culpabi lity. Dison ,

## -3-

No. 03C01-9602-CC-0005. Thus,when the legislatur e has explicitly omitted the mental state in the definition of a crime, the crime is one of “general intent.” Accordingly, I find th at the offense of aggravated sex ual battery is a gener

al intent crime and no mental state need be all eged in the indictment. Kimmel , No. 02C01- 9701-CR-00006. This approach i s consistent with the i nterpretation of the MODEL
PENAL CODE 

## , from which our current CRIMINAL CODE 

## is adopted, other jurisdi ctions which have construed this identical issue, and all legal treatises which have been written on this subjec

t. See Kimmel , No. 02C01-9701-CR-00006 (citations omitted), Commission Commentary, MODEL PENAL C ODE 

## , Section 2.02(3) and 41 Am. Jur.2d, Indictments and Inform ation , § 126 (1995).

For these reasons, I wo uld affirm dismissal of the wr it.

____________________________________ DAVID G. HAYES, Jud ge