# FILED
September 16, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON

BOBBY RA

Y A NDERSON, ) ) Petitioner, ) C. C. A . NO. 02C01-9 707-CC-00232 ) vs. ) LA UDERDALE COUN TY ) ALTON HESSON, WA RDEN, ) No. 4967 ) Respondent. )

O R D E R

This matter is before the Court upo n the state’s mot ion to affirm the judgment of the tr ial court und er Rule 20, R ules of the Court of Criminal Ap peals. The case before this Court repre sents an appeal from t he trial cour t’s denial of the petitioner’s

petition for w rit of habeas cor pus. The record was filed on July 23, 199 7, and the petitioner

filed his bri ef on the same day. The petitioner was origi nally in dicted on one count of agg ravated ra pe in January 1984, and was

subsequently

convicted of the same. In the present appeal, the petitioner, relying in part upon State v. Roger Dale Hill , No. 01C01-950 8-CC-00267 (Tenn. Crim. App. J une 20, 1996), cont ends the judgment entered against hi m is void because the indi ctment failed to al lege the mens rea of the offense charg ed.

Having reviewed the state’s motion in light of the petitioner’s response and the entire record on app eal, we conclude that the motion is well-taken and should be granted. The t rial judg e dismissed thepetitioner’ s petition st ating, in effect, that allegations

concerningthe sufficiency of an indictment are not subject to habeas corpus relief. It i s well established that challenges

to the sufficiency

of an indictment can not be tested in a habeas

corpus proceeding. See Haggard v. State , 475 S.W.2d 186, 187 (Tenn. Crim. Ap p. 1971); Brown v . State , 445 S.W.2d 669, 674 (Tenn. Crim. App

. 1969). A panel of thi s Court recently held the same in a capi tal case. Barber v. State , No. 01C01-9408-CR-00281 (Te nn. Crim. App., Feb. 23, 199 5).2 Nonetheless, we have considered the subst ance of the petition er’s claim and determine it to be withou t merit. Hill represents a direct appeal from a case involv ing an indi ctment rendered s ubsequent to the 1989 revis ions to the Cr iminal Code. Conversely, the appeal in the present case stems from a denial of a pet ition for writ of habeas corpus and involves an indictment issue d prior to the 1989 changes in the Code. The opini on in Hill was based u pon this Cour t’s interpr

etation of T.C.A. § 39- 11-301(c), w hich was enacted in 1989. That statute prov ides, in pert inent part, that “[a] culpable mental state is required within this title unless the definition of the offense plainly dispenses w ith a mental element .” Prior to 1989, howev

er, the Cri minal Code did not contain a comparable stat ute. Accordi ngly, t he decision i n Hill does not control our revi ew of the iss ue raised here in.

At the time of the offense in this case, ag gravated rape was defined as the “unlaw

ful sexual penet ration of another accompanied” by certain enumerated aggravating cir

cumstances, inc luding that the defendant causes per sonal injur

y to the victim and that the vic

tim is less

than thirteen ( 13) years old. T.C.A. § 39-2-603 (1982)

. The indic tme nt at issue bef ore u s cha rged t hat t he pe titio ner " did u nlawf ully, willfu lly, feloniously and aggrav atedly sex ually penetr

ate [the vic

tim], a female less

than 13 years of ag e and causing personal inj ury to the [victim]. ” This lang uage was sufficient under the law

as it exi sted at the time. As noted above , the Crimin al Code did not contain a prov ision simil ar to § 39-11- 301(c) (1989) . The statutory requirements for an indictment were found in § 40 -1802 (now § 40-13-202 (1990)), which provided simply that: The indictment mu st state the facts constitu ting the offense in ordinary and concise l anguage, w ithout proli xity or repetiti on, in such a manner as to enable a pe rson of common u nderstanding to know what is intended, and w ith that degree of certainty which w ill enable t he court, on convicti on, to pronounce th e proper judg ment. Furthermore, in Campbell v. State , 491 S.W .2d 359, 361 (Tenn . 1973) (emphasis supplied), w hile addressi ng the sufficiency of an indictment cha rging t he offense of murder , our Sup reme Cou rt state d the f ollowing:

While it seems clear that t he indictment i n Witt was insufficient in that it failed to charge an el ement, that the murder was committ ed3 unlawfully , in either t he language of the statute or common law or words of equivalen t import, the dec ision is confusing because of the language, ‘fatally defecti ve in omitt ing the charge that the offense was committed feloniously, or wit h malice aforethoug ht; and containi ng no wor ds of equivalent import.’ It is clear , however, that had the indictm ent used the words ‘fel

oniously’ or ‘unla wfully’

, it would have be en sufficient. We agree with this pr

oposition. By

containing the words found in the languag e of the statute, the indictmen t at issue here sufficien tly apprised the appellant of th e offense charged under the law at the time, and is the refore valid. Thus, the petition er’s attack must fail.
For the reasons stated above, it is hereby ORDERED, pursuant to Rule 20, Rules of the Court of Criminal Appeals, that the judgmen t of the trial court dismissing the petition for writ of habea s corpus is affirmed. Costs of this appeal shall be assessed against the petition er.

Enter, this t he ___ day of September , 1997.

__________________________________ PAUL G. SUMM ERS, JUDGE

__________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ DAVID G. HA

YES, JUDG E