# FILED

December 16, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NO

VEMBER 1997 SESSION

MITCHELL L. CORSO, SR., )

) C.C.A. No. 03C01-9703- CR-00099 Appellant, ) ) Morgan County V. ) ) Honorable E. Eu gene Eblen, Jud ge ) CHARLES JONES, WARDEN, ) & STATE OF T ENNESSEE, ) (Habeas Corpus-Agg ravated Rape) ) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Mitchell L. Corso, Sr ., Pro Se John Knox Walkup M.C.R.C.F. Attorney General & Reporter P.O. Box 2000 Wartburg, TN 37887 Sandy Copous Patrick Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Charles E . Hawk District Attorney General Frank A. Ha rvey Assistant District A

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

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMM ERS, Judge

O P I N I O N1 The indictment against th e appellant stat ed that he “did knowi ngly and feloniousl y commit the offense of aggravated rape by h aving unlawful sexual penetra tion of [the victim], age twelve years, by having sexual intercourse wit h [the victim].” -2- The appellant, Mitchell L. Corso, Sr., pled guilty to aggravated rape. He was sentenced to fifteen years incarceration in the Tenness ee Department of Correction. He, thereafter , filed a petition for habeas corpus relief. In his petition he alleged that the indictment against him was insuffici ent for failing to allege a
mens rea . He contends his convi ction is void. The tri al court dismissed the petition finding that it was not proper for habeas corpus review. The trial court based this finding on the fact that the appellant’s convicti on was not void on its face and that his sentence had not ex pired. He appeals this di smissal. Upon review, we affirm.

The appellant contends that the indictme nt against him did not sufficiently allege the mens rea for aggravated rape. 1 The appellant bases his theory on State v. Hill , No. 01C01-9508-CC-00267 ( Tenn. Crim. App. at Nashvi lle, filed June 20, 1996). The Tennessee Supreme Cour t has recently rev

ersed Hill holding that indictment w as constitutionally and statutorily vali d. State v. Hill , No. 01-S-01-9701 -CC-00005 (Ten n. Nov. 3, 1997). T he Court held th e following:

[F]or offenses which neither expressly require nor plainly dispense with the requirement for a culpable mental state, an indi ctment which fails to allege such mental state will be sufficient to support prosecution and convicti on 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 w

hich the accused must defend, adequate basis for entry of a proper judgment, and protecti on from double jeopardy; (2) the form of the indictment meets the requirements of Tenn. Code Ann. § 40- 13-202; and-3- (3) the mental state can be logically inferred from the conduct alleged. Id. at 3.

In this case sub judice , we find that the appellant’s indictment suff iciently alleged the elements of aggravated rape and was constitutionally and properly drafted. The facts as alleged in th e indictment make the mental state r equired for conviction logic

ally obvious. The appel lant was fully appri sed of the charges against him in ordinary and concise language. H is indictment gave the convicting court an adequate basis for subject matter jurisdiction. Therefore, t he appellant’s conviction

is not void and is impr oper for habeas corpus revi ew.

Accordingly, w

e find no error of law mandating reversal. The judgment of the trial court is affirmed.

__________________________ PAUL G. SUMMERS, Ju dge-4- CONCUR:

______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ J. CURWOOD WITT, JR., Judge