FILED

December 23, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OCTOBER SESSION, 1997

TIMOTHY WAYNE ) C.C.A. NO. 03C01-9611-CR-00443

JOHNSON, )

)

Appellant, ) BLEDSOE COUNTY

)

)

VS. )

) HON. BUDDY PERRY

JAMES A. BOWLEN, ) JUDGE

WARDEN, )

)

Appellee. ) (Habeas Corpus)

ON APPEAL 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 General and Reporter

Route 4, Box 600

Pikeville, TN 37367 MICHAEL J. FAHEY, II

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

J. MICHAEL TAYLOR

District Attorney General

JAMES W. POPE, III

Assistant District Attorney General

Corner of Third and Market

First American Bank Building

Suite 300

Dayton, TN 37321

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
-2-

OPINION

The Petitioner, Timothy Wayne Johnson, appeals the trial court’s order

denying him habeas corpus relief. He was indicted for aggravated rape, which

led to his conviction. He argues that his conviction is void because the indictment

charging him with the offense of aggravated rape is fatally defective because it

fails to allege the requisite mens rea. We affirm the judgment of the trial court

dismissing the petition.

In his habeas corpus petition, the Petitioner alleges that the indictment

failed to specify the mens rea for the offense of aggravated rape and thus, his

conviction was void. We note that the record does not contain a copy of the

judgment form, which prevents us from adequately reviewing his claim for relief.

However, he has stated in his petition that he was convicted of aggravated rape

and sentenced on April 6, 1994, to twenty years incarceration. The Petitioner

filed a petition for a writ of habeas corpus on September 10, 1996. The State

submitted a motion to dismiss the petition on September 18, 1996. The

Petitioner requested a writ of mandamus from this Court to compel the Circuit

Court of Bledsoe County to issue its decision on the petition, which a panel of this

Court denied in an order dated December 6, 1996. The trial court entered an

order on December 17, 1996, denying the petition. The Petitioner now appeals.

An indictment or presentment must provide notice of the offense charged,

an adequate basis for the entry of a proper judgment, and suitable protection

against double jeopardy. State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996);
-3-

State v. Byrd, 820 S.W .2d 739, 741 (Tenn. 1991); State v. Lindsay, 637 S.W.2d

886, 890 (Tenn. Crim. App. 1982). The indictment “must state the facts in

ordinary and concise language in a manner that would enable a person of

common understanding to know what is intended, and with a degree of certainty

which would enable the court upon conviction, to pronounce the proper

judgment.” Warden v. State, 381 S.W.2d 244, 245 (Tenn. 1964); Tenn. Code

Ann. § 40-13-202. 

A lawful accusation is an essential jurisdictional element, thus, a

prosecution cannot proceed without an indictment that sufficiently informs the

accused of the essential elements of the offense. State v. Perkinson, 867 S.W.2d

1, 5 (Tenn. Crim. App. 1992); State v.Morgan, 598 S.W.2d 796, 797 Tenn. Crim.

App. 1979). A judgment based on an indictment that does not allege all the

essential elements of the offense is a nullity. Warden v. State, 381 S.W .2d at

245; McCracken v. State, 489 S.W.2d 48, 53 (Tenn. Crim. App. 1972).

Furthermore, the Tennessee Code provides that "[i]f the definition of an offense

within this title does not plainly dispense with a mental elem ent, intent,

knowledge, or recklessness suffices to establish the culpable mental state." 

Tenn. Code Ann. § 39-11-301(c). 

The Petitioner cites a recent decision of a panel of this Court that held an

indictment invalid which charged the offense of aggravated rape in language

similar to that in the case sub judice. See State v. Roger Dale Hill, C.C.A. No.

01C01-9508-CC-00267, Wayne County (Tenn. Crim. App., Nashville, June 20,

1996), rev’d, ___ S.W.2d ___ (Tenn. 1997). He asserts that the indictment only

alleges that he “unlawfully, with force or coercion, did sexually penetrate” the
-4-

victim. He argues that the indictment fails to assert a reckless, knowing or

intentional mental state as required by Tennessee Code Annotated section

39-11-301(c). The indictment reads as follows:

The GRAND JURORS OF COFFEE County, Tennessee, duly

empaneled and sworn, upon their oath, present that TIMOTHY WAYNE

JOHNSON on the ___ day of AUGUST, 1993, in COFFEE COUNTY,

Tennessee, and before the return of this indictment, unlawfully, with

force or coercion, did sexually penetrate MELANIE DICKINSON, in

violation of T.C.A. 39-13-502, while armed with a weapon or an article

used or fashioned in a manner to lead the said MELANIE DICKINSON

reasonably to believe it to be a weapon, and against the peace and

dignity of the State of Tennessee.

Our supreme court recently provided guidance on this issue in its opinion

reversing Hill:

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.

Hill, ___ S.W.2d ___ (Tenn. 1997).

Here, the indictment clearly satisfies the constitutional notice requirements.

There was adequate notice that the Defendant was charged with the statutory

offense of aggravated rape as codified in Tennessee Code Annotated section

39-13-502(a)(1), which contains the essential elements of the offense. Here too,

is sufficient information by which the trial judge could pronounce judgment for the

offense of aggravated rape. Finally, the Defendant is adequately protected
-5-

against a second prosecution for an offense of aggravated rape of the victim

occurring during August, 1993.

Regarding the second requirement, it is also apparent that the indictment

was drafted such that a person of ordinary intelligence could understand with

what offense he was charged. The indictment also sufficiently stated the factual

circumstances by alleging the identity of the victim and what specific act of

forcible sexual penetration the Defendant was called to defend against. Likewise,

the third requirement, that the mental state be logically inferred from the

indictment, has been satisfied. The allegation of “force” or “coercion”

contemplates a mental state. As defined in the Code, “‘[f]orce’ means

compulsion by the use of physical power or violence and shall be broadly

construed to accomplish the purposes of this title.” Tenn. Code Ann. § 39-11-

106(a)(12). Force implies that the power is directed toward an end and without

the consent of the victim. Lundy v. State, 521 S.W.2d 591, 594 (Tenn. Crim.

App. 1974). Likewise, “coercion" means "threat of kidnaping, extortion, force or

violence to be performed immediately or in the future or the use of parental,

custodial, or official authority over a child less than fifteen (15) years of age."

Tenn. Code Ann. § 39-13-501(1). Thus, the elements of the charged offense

imply that the Defendant possessed the necessary awareness of his actions that

would satisfy proof of a culpable mental state under section 39-11-301(c). 

Sexual penetration by force or coercion necessarily implies the sexual

penetration would occur intentionally or knowingly. Therefore, we conclude that

the indictment in this case adequately informed the Defendant of the charges

against him and does not support his claim for habeas corpus relief. 
-6-

Accordingly, we affirm the judgment of the trial court dismissing the

petition.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

GARY R. WADE, JUDGE

___________________________________

JERRY L. SMITH, JUDGE