# FILED
April 9, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON
ROBERT E. NOWELL, ) ) Petitioner, ) C. C. A. NO. 02C01-9612-CC-00464 ) vs. ) LAKE COUNTY ) BILLY COMPTON, WARDEN, ) No. 96-7557 ) Respondent. )

O R D E R

This matter is before the Court u pon the state’s motion to affirm the judgment of the trial court und er Rule 20, Rules of the Cour t of Criminal Appeals. The case before this Court repre sents an appeal from the trial co urt’s denial of the petitioner’s petition for w rit of habeas corpus. The recor d was filed on December 17, 1996, and the petitioner’s bri ef was filed on February 3, 1997. The petitioner was originally indi cted on one count of aggravat ed rape and two counts of agg ravated sexual battery in M ay 1989, and pled guilty to the same in March 1990. In the present appeal, the petitioner, rely ing in part upon State v. Roger Dale Hill , No. 01C01-9508- CC-00267 (Tenn. Crim. App. June 20, 1996), contend s the judgment entered against him is void because the indictments failed to allege the mens rea of the offense charged.
Having reviewed the state’s motion in light of the petitioner’s response and the entire record on appeal, we conclude that the motion is well-taken and should be granted. The trial judg e dismissed the petitioner’ s petition stating that “[a]llegations concerning the sufficiency of an indictment are not sub ject to habeas corpus relief.” It is well established that c

hallenges to the sufficiency of an indictment cannot be tested in a habeas corpus proceeding. See Haggard v. State , 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown v. State , 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). A panel of this Court recently held the same in a capital case

. Barber v. State , No. 01C01-9408-2

CR-00281 (Tenn. Crim. App., Feb. 23, 1995).

Nonetheless, we have considered the substance of the petition er’s claim and determine it to be witho ut merit. Hill represents a direct appeal from a case involving an indi ctment rendered subsequent to the 1989 revisions to the C riminal Code. Conversely, the appeal in the present case s tems from a denial of a petition for writ of habeas corpus and involves an indictments issued prior to the 1989 changes in the Code. The opinion in Hill was based upon this Cour t’s interpretation of T.C.A. § 39- 11-301(c), which became effective November 1, 1989. That sta tute provides, in pertinent part, that “[a] cul pable mental state is requi red within this tit le unless the definition of the offense plainly dispenses with a mental element.” Prior to 1989, however, the Crimi nal Code did not contain a compar able statute. Accordingl y, the decision in Hill does not control our rev iew of the issue raised her ein.
At the time of the offense in this case, ag gravated rape was defined as the “unlawful sexual pene tration of another accompanied” by certain enumerated aggravating ci rcumstances, including that the victim is less than thirteen (13) year s old. T.C.A. § 39-2-603 (1982). Ag gravated sexual batt ery was defined as the “ unlawful sexual contact with another accompanied” by cer tain enumerated aggravat ing circumstances, including that the victim is les

s than thirteen (13) year s old. T.C.A. § 39- 2-606 (1982).

The indictments at issue before us charged that the petitioner “did unlawfully and feloniously sexually penetrate [

the victim, a person] le ss than thirteen (13) years of age” and “ did unlawfully and felonious ly have sexual c ontact with [the victims, persons] les

s than thirteen (13) year s of age.” This language was sufficient under the law as it ex

isted at the time. As noted abov e, the Criminal Code did not contain a provision si milar to § 39-11-301(c) ( 1989). The statutory req uirements for an indictment were found in § 40-1802 (now § 40-13-202 (1990)), which provided simply that:3 The indictment must state the facts const ituting the offense in ordinary and concise l anguage, without prol ixity or repetit ion, in such a manner as to enable a person of common understanding to know what is intended, and with that degr ee of certainty which w ill enable the court, on conviction, to pronounce the proper judgment.

Furthermore, in Campbell v. State , 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis supplied), w hile addressing the sufficien cy of an indictment chargi ng the offense of murder, our Sup reme Court stat ed the following:

While it seems clear that the indictment i n Witt was insufficient in that it failed to charge an el ement, that the murder was committed unlawfully, in either

the language of the statute or common law or words of equivalent import, the dec ision is confusing because of the language, ‘fatally defective in omitting the charge that the offense was committed feloniously, or wit h malice aforethought; and containi ng no words of equivalent import.’ It is clear, however, that h ad the indictment used the words ‘feloniously’

or ‘unlawfully’

, it would have been sufficient. We agree with this proposition. B y containing the w

ords found in the language of the statute, the indictments at issue here suff iciently apprised the appellant of the offen se charged under the law at the time, and is therefore 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 judgme nt of the trial court dismissing the petition for writ of habeas corpus is affirmed. Costs of this appeal shall be assessed against the petitioner.

Enter, this the ___ day of Mar ch, 1997.

__________________________________ DAVID G. HAYES, JUDG E4 __________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ PAUL G. SUMMERS, JUD GE