# FILED
November 3, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE (HEARD AT JACKSON)

STATE OF TENNESSEE ) FOR PUBLICATION ) ) FILED: NOVEMBER 3, 1997 Appellant ) ) WAYNE COUNTY v . ) ) HON. JAMES L. WEATHERFORD, ROGER DALE HILL, SR. ) JUDGE ) Appellee ) NO. 01-S-01-9701-CC-00005

For Appellee : For Appellant : SHARA ANN FLACY JOHN KNOX WALKUP District Public Defender Attorney General and Reporter WILLIAM C. BRIGHT KATHY MORANTE Assistant Public Defender Deputy Attorney General Pulaski, TN Nashville, TN T. MICHAEL BOTTOMS District Attorney General RICHARD H. DUNAVANT Assistant District Attorney General Pulaski, TN

OPINION2

REVERSED BIRCH, J.1 Aggra vated rape is defined in Tenn. Code Ann. § 39-13-

502(a)(4) as the “unlawful sexual penetration of a victim by the defendant . . . [when] [t]he victim is less than thirteen (13) years of age.”

2 The terms “mental state,” “culpable mental state,” and “ mens rea ” are used interchangeably. 3

We accepted the State’s application for review in this
cause in order to determine the validity of an indictment which charged aggravated rape. 1 T he C ourt of Criminal Appeals held the indictment void and the subsequent conviction i nval id because the language of th e i ndictment failed to allege a culpable mental state. 2

This issue arises because the Sentencing Reform Act of 1989 provides that a culpable mental state is required to establish an offense unless the definition of the offense “plainly dispenses witha menta l element.” Tenn. Code Ann. § 39-11-301(b)(1991). Further, when a statute omits reference to a specific mens rea , but does not plainlydispense with a mens rea requirement, then proof of “intent,” “knowledge,” or “recklessness” will suffice to establish
a cu lpable mental state. Tenn. Code Ann. § 39-11-301(c) . Th e statute defining aggravated rape does not expressl y re quire a culpable mental state, neither does it plainly state that no such mental state is required. Thus, proof of intent, knowledge or recklessness is required to sustain a conviction for that offense.

Since a plain reading of Tenn. Code Ann. §§ 39-11-301(b) and (c) leads us to conclude that the Legislature intended that a culpable mens rea be an element of the offense of aggravated rape, the question here is whether failure to allege such mens rea in an3 Due to the age of the victim and the nature of the offense, we

identify the victim by initial only. 4 indictment charging that offense constitutes a fatal defect rendering the indictment void. We hold that for offenses which neither expressly require nor plainly dispense with the requirement for a culpable mental state, an indictment which fails to allege suchmental state will be sufficient to 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 accused of the charge against which the accused must defend, adequate basis for entry of a proper judgment, and protection from double jeopardy; (2) the form of the indictment meets the requirements of Tenn. Code Ann. § 40-13-202; and (3) the mental state can be logically inferred from the conduct alleged.

I

On or about June 22, 1991, the v icti m, M.H., 3 and her older sister were spending the night with their paternal grandmother. M.H. was about eight years old. The victim’s father, defendant Roger Dale Hill, also spent the night at the house. M.H., her sister, and Hill went to sleep on the floor while her grandmother slept on a couch nearby. According to M.H., after her sister and grandmother went to sleep, Hill pulled up her nightgown, pulled her panties over, and put “[h]is finger in my private,” and then “got on t op of me and . . . started putting his private part5

into mine.” Hill then beg an to move “[u]p and down.” When M.H. told Hill to stop, he did.

A few days later, M.H. related the night’s events to her mother. Subsequently, Hill was arrested and charged with aggravated rape. The jury conv icted Hill of aggravated sexual battery. The trial court sentenced him to a term of twelve years and imposed a fine in the amount of $25,000. At the hearing on mo tio n for new trial, Hill contended, for the very first time, that the indictment was defective because it failed to specify a culpable mental state for the crime charged. The trial court rejected this contention and approved the verdict. On appeal, the intermediate appellate court ruled that the indictment was indeed void for failure to allege mens
rea , and the trial court was therefore without jurisdiction.

II

Because the issues before us ar e questions of law, our reviewis de novo . State v. Davis , 940 S.W.2d 558, 561 (Tenn. 1997).

The State contends that the indictment is valid because an indictment need not specify the culpab le mental state when the language therein is otherwise suffici ent to inform the accused of the charge.

The indictment in question co ntai ns six counts, each in the following language:6 [the defendant] did unlawfully sexuallypenetrate [the victim] a person less than thirteen (13) years of age, in violation of Tennessee Code Annotated 39-13-502, all of whichis against the peace and dignity of the State of Tennessee.

As for constitutional requirements, the Sixth and FourteenthAmendments to the United States Constitution and Article I, Section 9 of the Tennessee Constitution guarantee to the accused the right to be informed of the nature and cause of the accusation. Generally stated, an indictment is valid if it provides sufficient information (1) to enable the accused to know the accusation to whichanswer is required, (2) to furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the accused fro mdouble jeopardy. State v. Byrd , 820 S.W.2d 739, 74 1 (Tenn . 1991); VanArsdall v. State , 919 S.W.2d 626, 630 (Tenn. Crim. App. 1995); State v. Smith , 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980).

We recognize, however, that an indictment need not conform to traditionally strict pleading requirements. Rather, as the Court noted in State v. Pearce ,

the strictness required in indictments had grown to be a blem ish and inconvenience in the law and the administration thereof. That more offenders escaped by the over-easy ear given to exceptions to ind ictments, than by t h e manifestation of their innocence; and that the grossest crimes had gone unpunished by reason of these unseemlyniceties. . . . [W]hile tenderness ought always to prevail in criminal cases, yet, that it does not require such a construction of words as would tend to render the law7 nugatoryand ineffectual, nor does it require of us to give into such nice and strained critical objections as are contrary to its true meaning and spirit. . . .[I]n criminal cases, where the public security is so deeplyinterested in the prompt execution of justice, it seems the minor consideration should give way to the greater, and technical objections be overlooked, rather than the ends of society be defeated.
7 Tenn. (Peck) 66-67 (1823). Over the years, this Court has made reference to “the growing inclination of this court to escape from the embarrassment of technicalities that are empty and without reason, and tend to defeat law and right.” State v. Co rnellison , 166 Tenn. 106, 59 S.W.2d 514, 515 (Tenn. 1933). Indeed, the purpose for the traditionallystrict pleading requirement was the existence of common law offenses whose elements were not easily ascertained by reference to a statute. Such common law offenses no longer exist. See Tenn. Code Ann. § 39-11-102(a) (1991). Thus, we now approach “attacks upon indictments, especially of this kind, from the broad and enlightened standpoint of common sense and right reason rather than from the narrow standpoint of petty preciosity, pettifogging, technicalityor hair splitting fault finding.” United State s v . Purvis , 580 F.2d 853, 857 (5th Cir. 1978)( citing Parson v. United States , 189 F.2d 252, 253 (5th Cir. 1951)).

The form of an indictment is subject to statutory prescription also. Tennessee Co de A nnotated § 40-13-202 (1990) provides that an indictment must:

state the facts constituting the offense in ordinary and concise language, without prolixity or8 repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certaintywhich will enable the court, on conviction, to pronounce the proper judgment. . . .
This statute, procedural in nature, was originally enacted in 1858, one hundred and thirty-one years prior to the enactment of the Sentencing Reform Act of 1989, which expressly abolished common lawoffenses and statutorily spec ified the conduct necessary to support a criminal prosecution in Tennessee. See Tenn. Code Ann. § 39-11-102(1991) and the Sentencing Commission Comments thereto.

When t he G eneral Assembly enacted the Sentencing Reform Act of 1989, it included significant references to the requirement for a culpable mental state. One such reference is found in Tenn. Code Ann. § 39-11-301 (1991): (a)(1) A person commits an offense who acts intentionally, knowingly, recklessly or with criminal negligence, as the definition of the offense requires, withrespect to each element of the offense.

. . . (b) A culpable mental state is required within this title unless the definition of an offense plainly dispenses with a mental element. (c) If the definition of an offense within this title does not plainlydispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable mental state.4 Anyconfusion may be due, at least in part, to the loose usage

of the phrase “essential elements,” which can mean the elements necessaryfor conviction or the elements necessary to inform the accused of the charge. 9

Another reference is found in Tenn. Code Ann. § 39-11-201 (1991), which codified the principles regarding burden of proof: (a) No person may be convicted of an offense unless each of the following is proven beyond a reasonable doubt:

. . . (2) The culpable mental state required.

Yet another reference is found in Tenn. Code Ann. § 39-11-101 (1991):
The general objectives of the

criminal code are to . . . (2) Give fair warning of what conduct is prohibited, and guide the exercise of official direction in law enforcement, by defining the act and the culpable mental state which together constitute an offense. Arguably, the first two of these refe rences pertain primarilyto the evidence necessary to sustain a conviction. Their perti nence, then, to the requirements of a valid indictment i s tangential and secondary at best. Obviously, the description of the proof necessary to sustain a conviction must be both more inclusive and conclusive than the language of an indictment. 4

Generally, an indictment must allege the material elements of an offense. Torcia, Wharton’s Crim. Pro. § 235 at 59 (1990). Again, the tou chst one for constitutionality is adequate notice to the accused.5 This statute has now been amended so that rape of a child less

than thirteen years of age is a separate offense. See Tenn. Code Ann. § 39-13-522.

6 This is true because even while voluntarily intoxicated, a defendant may recklessly rape a victim or recklessly disregard the age of a victim. See State v. Jones , 889 S.W.2d 225, 228-29 (Tenn. Crim. App. 1994). 10

The authors of the Model Penal Code suggest that culpabilityis not a material element of an offense, although at
common law, “scienter” was a necessary element and had to be alleged in every indictment. The common-law rule, however, has been modified as to statutory offenses. In modern practice, it is unnecessaryto charge guilty knowledge unless it is included in the statutory definition of the offense. 41 Am.Jur.2d Indictments and Information § 126 (1995).

The offense alleged in the indictment under consideration is aggravated rape. Tennessee Code Annotated § 39-13-502(a)(4) 5 defines the applicable category of aggravated rape as the “unlawful sexual penetration of a victim by the defendant, . . . [when] the victimis less than thirteen (13) years of age.” This statute does not specify a mental state. Thus, pursuant to Tenn. Code Ann. § 39-11-301(c), the men tal element is satisfied if the indictment alleges that the defendant committed the proscribed act with intent, knowledge, or reckles sne ss. Obviously, the act for which the defendant is indicted, “un lawf ully sexual penetrat[ing]” a person under the age of thirteen, is committable only if the principal actor’s mens rea is intent iona l, knowing, or reckless. 6 Thus, the required mental state may be inferred from the nature of the criminal conduct alleged. Clearly, the language of this indictment provides adequate notice to both the defendant and the trial court11

of the offen se a lleged protects the defendant from subsequent reprosecution for this same offense. The form of the indictment complies with the requirements of Tenn. Code Ann. § 40-13-202.

In conclusion, we hold that the indictment in this cas e charging the defendant with the offense of aggravate d rape , in violation of Tenn. Code Ann. § 39-13-502, meets constitutional and statutoryrequirements of notice and form and is, therefore, valid. Accordingly, the ju dgment of the Court of Criminal Appeals is reversed, and the appeal is dism issed. Co sts of this appeal are taxed to Hill; let execution issue if necessary.

____________________________________ ADOLPHO A. BIRCH, JR., Justice
CONCUR: Anderson, C.J. Drowota, Reid, Holder, JJ.