### FILED August 13, 199

9 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1999 SESSION

WILLIE E. PAYN E, * C.C.A. # 03C01-9809-CR-00336

Appellant, * HAMILTON CO UNTY VS. * Honorable Dougla s A. Meyer, Judge STATE OF TENN ESSEE, * (Post-Conviction)

Appellee. *

FOR THE APPELLANT : FOR THE APPELLEE : ARDENA J. GARTH PAUL G. SUMMERS District Public Defender Attorney General & Repor ter DONNA ROBINSON MILLER MARVIN S. BLAIR, JR. Assistant District P ublic Defender Assistant Attorney Gener al Suite 300, 701 Cherry Str eet 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243-0493 WILLIAM H. COX III District Attorney General Suite 300, 600 Market Street Chattanooga, TN 37402

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIA MS, Judge-2- 

### OPINI ON The petitioner, Willie E. Payne, app eals the trial court’s dismissal of his post-conviction reli ef petition. The petitioner w as convicted by a jur

y of having raped a female under twelve years of age. The trial c ourt sentenced him to death, and the Court of Appeal affirmed his sentence in 1978. Later, Gov ernor Ray Blanton commuted his senten ce to life imprisonment. On Apr il 14, 1997, the petitioner filed a “Petitio n for Writ of Habeas Corpus,” which w as properly treated by the trial court as a motion for post-convicti on relief. The petitioner clai ms that the indictmen t in his case was cons titutionally def ective because it did not allege a specific mens rea; i.e., it did not use the language “intentionally, knowingly, or recklessly.” After review of the record,we affirm the judgment of the tri al court.
Throughout the procedural his tory of his petition, the petitioner relied exclusively up

on a holding of a panel of this Cour t in State v. Roger Dale Hill , No. 01C01-9508-CC-00267 (Tenn. Crim. App. filed June 25, 1996, at Nashville), rev’d , 954 S.W.2d 725 (Tenn. 1997). The Tennessee Supreme Court r eversed this Court’s Hill decision in State v. Hill , 954 S.W.2d 725 (Tenn. 1997). Nevertheless on appeal, the petitioner asserts that the indictment lacked proper notice of the offense alleged.
The petitioner’s reliance o n Hill is inappropriate. That deci sion involved indictments after the Sentencing Reform Act of 1989. Our Supreme Court held that the Hill rationale also applies to pre-1989 indictments in Dykes v. Compton , 978 S.W.2d 528 (Tenn. 1998). Our Supreme Court addres sed Hill ’s application to offenses occurring from 1983 to 1988 in Crittenden v. State , 978 S.W.2d 929 (Tenn. 1998).
Concerning a 1975 indictment, we would follow our Supreme Court’s language in Campbell v. State , 491 S.W.2d 359 (Tenn. 1973), regarding-3- sufficie ncy of an

indict ment. The

langua ge of Campbell is directly on point when the Court stated, “It is c lear, however, that had the indictment used the wor ds ‘feloniously’ or ‘unl awfully,’ it w ould have been sufficient.” Id. at 361. The alleged indictment is this case used both “feloniously” and “unlawfully.”
However, the petitioner’s omission of the pertinent indictment in the record submitted to this Court is dispositive. Since a copy of the indictment is not included in the record, ther e is no evidence of its lang uage other than the allegations contained in the petition. It is the res ponsibility of the petiti oner to provide a copy of the indi ctment that he attacks. See Tenn. R. App. P. 24. By omitting the essential docu ment, the petitioner has wai ved his sole articul ated ground for appeal.
The judgment of the trial court is AFFIRMED.

_____________________________ JOHN EVERETT W ILLIAMS, Judge
CONCUR:

_______________________________ JAMES CURW OOD WIT T, JR., Judge

_______________________________ ALAN E. GLENN, Ju dge