FILED

November 3, 1997

Cecil W. Crowson

Appellate Court 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

OPINION
2

REVERSED BIRCH, J.
1Aggravated 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.” 

2The 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 The Court of Criminal Appeals held the

indictment void and the subsequent conviction invalid because the

language of the indictment 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

with a mental element.” Tenn. Code Ann. § 39-11-301(b)(1991).

Further, when a statute omits reference to a specific mens rea, but

does not plainly dispense with a mens rea requirement, then proof of

“intent,” “knowledge,” or “recklessness” will suffice to establish

a culpable mental state. Tenn. Code Ann. § 39-11-301(c). The

statute defining aggravated rape does not expressly require 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 an
3Due 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

such mental 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 victim, 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 top of me and . . . started putting his private part
5

into mine.” Hill then began 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 convicted 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 motion 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 are questions of law, our

review is 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 culpable mental state when the

language therein is otherwise sufficient to inform the accused of

the charge.

The indictment in question contains six counts, each in

the following language:
6

[the defendant] did unlawfully

sexually penetrate [the victim] a

person less than thirteen (13) years

of age, in violation of Tennessee

Code Annotated 39-13-502, all of

which is against the peace and

dignity of the State of Tennessee. 

As for constitutional requirements, the Sixth and

Fourteenth Amendments 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

which answer is required, (2) to furnish the court adequate basis

for the entry of a proper judgment, and (3) to protect the accused

from double jeopardy. State v. Byrd, 820 S.W.2d 739, 741 (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 blemish and

inconvenience in the law and the

administration thereof. That more

offenders escaped by the over-easy

ear given to exceptions to

indictments, than by the

manifestation of their innocence; and

that the grossest crimes had gone

unpunished by reason of these

unseemly niceties. . . . [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 law
7

nugatory and 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

deeply interested 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. Cornellison,

166 Tenn. 106, 59 S.W.2d 514, 515 (Tenn. 1933). Indeed, the purpose

for the traditionally strict 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,

technicality or hair splitting fault finding.” United States 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 Code Annotated § 40-13-202 (1990)

provides that an indictment must:

state the facts constituting the

offense in ordinary and concise

language, without prolixity or
8

repetition, in such a manner as to

enable a person of common

understanding to know what is

intended, and with that degree of

certainty which 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

law offenses and statutorily specified 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 the General 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,

with respect 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

plainly dispense with a mental

element, intent, knowledge or

recklessness suffices to establish

the culpable mental state.
4Any confusion may be due, at least in part, to the loose usage

of the phrase “essential elements,” which can mean the elements

necessary for 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 references pertain

primarily to the evidence necessary to sustain a conviction. Their

pertinence, then, to the requirements of a valid indictment is

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 touchstone for constitutionality is adequate notice to

the accused.
5This 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.

6This 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

culpability is 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

unnecessary to 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

victim is 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 mental element is satisfied if the indictment

alleges that the defendant committed the proscribed act with intent,

knowledge, or recklessness. Obviously, the act for which the

defendant is indicted, “unlawfully sexual penetrat[ing]” a person

under the age of thirteen, is committable only if the principal

actor’s mens rea is intentional, 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 court
11

of the offense alleged 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 case

charging the defendant with the offense of aggravated rape, in

violation of Tenn. Code Ann. § 39-13-502, meets constitutional and

statutory requirements of notice and form and is, therefore, valid.

Accordingly, the judgment of the Court of Criminal Appeals is

reversed, and the appeal is dismissed. Costs 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.