# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1997
TIMOTHY WAYNE ) C.C.A. NO. 03C01-9611-CR-00443 JOHNSON, ) ) Appe llant, ) BLEDSOE COUNTY ) ) VS. ) ) HON. BUDDY PERRY JAME S A. BO WLE N, ) JUDGE WAR DEN , ) ) Appellee. ) (Habeas Corpus)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF BLEDSOE COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : TIMOTHY

WAYNE JOHNSON JOHN KNOX WALKUP Pro Se Attorney Generaland Reporter Route 4, Box 600 Pikevil le, TN 37367 MICH AEL J . FAHE Y, II Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 J. MI CHAEL TAY LOR Distri ct Attorney General JAME S W . POP E, III Assistant Distri ct Attorney General Corner of Thir

d and Market First Ameri can Bank Buildi ng Suite 300 Dayton, TN 37321 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Peti tio ner, Timothy Wayne Johnson, app eals the t rial cour t’s order denying him ha beas corpus rel ief . He was indicted for aggravated rape, which led to his convi ction. He argues that hi s convict ion is voi d because the indi ctment charging him with the offen se of aggrava ted rape is fatally defective beca use it fails to alleg e the re quisit e mens re a. We affirm the judgm ent of the trial court dismissing the petiti on.

In his habeas corp us pet ition, the Petit ioner all eges that t he indict ment failedto specif

y the mens rea for

the offens e of ag gravated rape a nd thu s, his convicti on was void . We note that th e record does not contain a copy

of the judgment form, which preve nts us from a dequ ately re viewing his claim for re lief. Howeve r, he has stated i n his peti tion that he was convicted of aggravated r ape and sentenced on April 6, 1994, to twenty year

s incarcer

ation. The Pet itioner fileda petition for a wri t of h abeas corpus on Sep tembe r 10, 199 6. The S tate submitted a motion to di smiss the petition on Septembe r 18, 1 996. The Petiti onerrequested a writ of mandamus from thi s Court to co mpe l the Cir cuit Court of Bledsoe County to issue its decision on the petit ion, which a pane l of this Court denied in an orde r dated D ecem ber 6, 19 96. The trial court enter ed an orderon December 17, 1996, denyi ng the petiti on. The Petitioner now appeals.

An indict ment or presentment must provide not ice ofthe offense charged,
an adequ ate bas is for the entry of a proper judgment,and suitabl e protecti on against double jeopard y. State v. T rusty , 919 S.W.2d 30 5, 3 10 (Tenn . 1996);-3-

State v. Byrd , 820 S.W .2d 739 , 741 (T enn. 19 91); State v. Lindsay , 637 S.W.2d 886, 890 (T enn. C rim. A pp. 19 82). T he ind ictme nt “mu st state the fac ts in ordinary and concise l anguage in a manner that would enable a per son o f
common unde rstand ing to k now w hat is intended, and with a deg ree of ce rtainty which would enable the court upon convict ion, to pr onounce the proper judgm ent.” Warden v. Sta te , 381 S.W.2d 244, 245 (Tenn. 19 64); Tenn. Code Ann. § 4 0-13-20 2.

A lawful accusation i s an essen tial jurisdictiona l elemen t, thus, a prosecutioncanno t procee d withou t an indictm ent that su fficientl y inf orms the accused of the essenti al eleme nts of the o ffense. State v. Perkinson , 867 S.W.2d 1, 5 (Tenn. Crim. App . 1992); State v.Mor gan , 59 8 S. W.2d 7 96, 797 Tenn . Cr im. App. 1979). A judgment based on an indic

tment that does

not all ege all t he essentialeleme nts of the o ffense is a nullity. Wa rden v. Sta te , 381 S.W .2 d at 245; McCracke n v. Stat e , 489 S.W .2d 48, 53 (T enn. Crim. A pp. 1972). Furthermore, the Tennessee Code provides that "[ i]f the def inition of an offense within this title does not plainly d ispense with a m ental elem ent, intent, knowledge, or recklessness suff ices to es tablish the culpable menta l state." Tenn . Code Ann. § 3 9-11-30 1(c).

The Petitioner c ites a rece nt decisio n of a pane l of this Court that held an indict ment invali d which charged t he offense of aggravated r ape in language similar to that i n the case sub judice

. Se e State v. Roge r Dale Hill , C.C.A. No. 01C01-9508-CC-00267, Wayne County (Tenn. Cri m. App., Nashvil le, June 20, 1996), rev’d , ___S.W .2d __ _ (Te nn. 19 97). H e ass erts tha t the ind ictme nt only
a ll eges that he “unl awfully , with f orce or coerci on, did sexual ly penetr ate” the-4-

vi cti m. He argues that the indict ment fails to a ssert a reckless, knowi ng or intenti onal mental state as required by Tennessee Code Annotated sect ion 39-11-301(c). The indictment reads as follows: T he GRAND JURORS OF COFFEE County, Tennessee, dul y empaneled and sworn , upon their oath, pre sent tha t TIMOTHY WAYNE JOHNSON on the __ _ day of AUGUST , 19 93 , in COFFEE COUNTY , Tennessee, and before the ret ur n of this indic tment, u nlawfully, with force or coercion , did s exually penetrate MELANI E DICK INSON , in violat ion of T.C .A. 39- 13-50 2, while armed with a weapon or an artic le used or fashion ed in a mannerto lead the said MELANI E DICK INSON reaso nably to believe it to be a weapon, and agai nst the peace and dignity of the State of Tennessee.
Our supre me c ourt re cently provided gui dance on this i ssue in its opinion reversi ng Hill : foroffenses wh ich neither expres sly require nor plainly di spense with the requirement

for a culpable mental state, an indictment which fails to all ege such men tal state will be suffi cientto support p rosecution and convicti on for that offense so l ong as (1) the language of the i ndictmen t is suf ficien t to meet the constit utional requirements of notice to the accused of the c harge against which the accusedmust defen d, adequa te basis for entry of a proper judg ment, and protection from d ouble jeopa rdy; (2) the form of the indict ment meets the requir ements of Tenn. Code Ann. § 40-13-202; and (3) the mental state can be logi cally i nfer red from the conduct alleged.
Hill , ___ S.W .2d ___ (Te nn. 1997).
Here, the ind ictme nt clea rly satisfie s the c onstitu tional n otic e requirem ents
. There was adequate notice that the Defendant was chargedwi t h the statutory offense of agg ravate d rape as cod if ied in Tennessee Code Annotated sec tion 39-13-502 (a)(1), which contai ns the essentialelements of t he offense. Here too, is suffic ient inf

ormation by whi ch the trial j udge could pronounce judgment for the
o ffense of aggravated rape. Final ly, t he Defendant is ad equately pr otected-5-

agains t a seco nd pro secu tion for a n offen se of a ggrav ated ra pe of th e vic ti m occurring during August, 199 3.
Regarding the second requi rement, it is also appar

ent that the indict ment
was drafted suc h that a pers on of ordinary i nt elligence could un derstan d with what offense he was char ged. The indictment also suff icient ly stated the factual circumstancesby alleg ing the identity o f the victim and w hat sp ecific act of f orcible se xual penetr

ation the Defendant was call ed to defend agai nst. Li kewise, the third req uirem ent, tha t the m ental s tate be logica lly in f erred fro m the indictme nt, has b een s atisfied . The a lle g ation of “ force” or

“coercion” contemplatesa mental state. As define d in the Code, “ ‘[f] or ce ’ means compulsion by the use of physicalpowe r or viole nce a nd sh all be b roadly construed to accomplish the p ur poses of thi s titl e.” Tenn. Code Ann. § 39- 11- 106(a)(12). Force impli es thatthe power is directed toward an e nd and without the conse nt of the victim

. Lundy v. S tate , 521 S .W. 2d 59 1, 5 94 (Tenn . Cr im. App. 1974). Likewise, “coercion"means "threat of kidnaping, extort ion, for ce or violence to be performe d imm ediate ly or in the future o r the us e of pa rental, custo dial, or offi cial aut horit y over a ch ild less than fifteen (15) ye ars of ag e." Tenn. Code A nn. § 39-13-5 01(1). Thus , the elemen ts of the charg ed offe nse imply that the Defendant possessed the necessary awareness of his act ions that would sat isf

y pr oof of a cul pabl e me nta l state und er section 39-11-3 01(c). Sexual penetrati on by force or coercion necessa rily impliesthe sexual penetrati on would occu r intentio nally or knowingl y. Therefor e, we conclude t hat t he indict ment in thi s case adequately informed the Defendant of t he charges agains t him and does n ot supp ort his claim for habe as corp us relief.-6- According ly, we affirm the judgment of the t rial court di smiss ing the petiti on.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ JERRY L . SMI TH, J UDGE