FILED

February 13, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1997

CHARLES EDWARD ORREN, )

) No. 03C01-9704-CR-00141

Appellant )

) JOHNSON COUNTY

vs. )

) Hon. LYNN BROWN, Judge

HOWARD CARLTON, Warden )

and STATE OF TENNESSEE, )

) (Writ of Habeas Corpus)

Appellee )

For the Appellant: For the Appellee:

Charles Edward Orren, Pro Se John Knox Walkup

N.E.C.C. #108907 Attorney General and Reporter

P.O. Box 5000

Mountain City, TN 37683 Michael J. Fahey, II

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

OPINION FILED: 

AFFIRMED 

David G. Hayes

Judge
2

O P I N I O N

The appellant, Charles Edward Orren, appeals the Johnson County Criminal

Court’s dismissal of his pro se petition for writ of habeas corpus. The appellant was

originally indicted by the Washington County Grand Jury for aggravated rape on

May 6, 1985. He pled guilty to this charge in August, 1985 and received a sentence

of thirty years imprisonment. The instant petition was filed on February 10, 1997. In

seeking issuance of the writ of habeas corpus, the appellant contends that the

judgment entered against him is void because the indictment failed to allege the

mens rea of the offense charged. The trial court dismissed the appellant’s petition

finding that the allegations concerning the sufficiency of the indictment are not

cognizable in habeas corpus proceedings and should have been raised on direct

appeal. Additionally, the court included in its findings that, at the time of the offense,

proof of a culpable mental state was not required. The appellant appeals the trial

court’s ruling.

ANALYSIS

A. Grounds for Habeas Corpus Relief

We first address the question of whether the sufficiency of an indictment can

be reviewed or tested in a habeas corpus proceeding. It is well-established that, in

Tennessee, habeas corpus relief is only available when a conviction is void because

the convicting court was without jurisdiction or authority to sentence a defendant, or

that a defendant’s sentence has expired and the petitioner is being illegally

restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). A void judgment is

one which shows “upon the face of the judgment or the record of the proceedings

upon which the judgment is rendered” that the convicting court was without

jurisdiction. Lack of jurisdiction was addressed by a panel of this court in State v.

Nixon, No. 02C01-9612-CC-00484 (Tenn. Crim. App. at Jackson, Dec. 3, 1997),
1

In the case before us, it is undisputed that the Washington County Criminal Court had

exclus ive original jurisd iction of the ind icted crim inal offens e. See Tenn. Code Ann. § 16-10-

102(1994).

2

The cases commonly cited for the proposition that challenges to the sufficiency of an

indictment may not be reviewed in habeas corpus proceedings are Hagg ard v. State , 475 S.W.2d 

186, 187-88 (Tenn. Crim. App. 1971) and Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim. App.

1969). Both Haggard and Brown involved challenges not pertaining to the court’s subject matter

jurisdiction or whether the indictment failed to state an offense. Defects in the indictment, other

than those challenging subject matter jurisdiction or failure to state an offense, are waived unless

raised prior to trial. See Tenn. R. Crim. P. 12(b)(2).

3

wherein we held:

‘Lack of jurisdiction’ refers to subject matter jurisdiction which a

defendant has no power to waive. Pon v. U.S., 168 F.2d 373, 374

(1948). See also State v. Seagraves, 837 S.W.2d 615, 628 (Tenn.

Crim. App. 1992). Subject matter jurisdiction is the power of the court

to hear and decide a particular type of action.[1] . . . In reference to

objections alleging failure to state an offense, the rationale is that if the

indictment fails to include an essential element of the offense, no

crime is charged and, therefore, no offense is before the court. See

State v. Perkinson, 867 S.W.2d 1, 5-6 (Tenn. Crim. App. 1992).

Thus, when the mental state is an essential element of the offense and the requisite

mental state cannot be fairly imported from the language of the charging instrument,

the trial court is divested of the jurisdiction necessary to proceed with the criminal

prosecution. See State v. Hill, 954 S.W.2d 725 (Tenn. 1997) (holding that the

requisite mental state can be logically inferred from the alleged criminal conduct.);

State v. Marshall, 870 S.W.2d 532, 537 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1993); State v. Dison, No. 03C01-9602-CC-00051 (Tenn. Crim. App. at

Knoxville, Jan. 31, 1997) perm. to appeal denied, (Tenn. Dec. 1, 1997) (holding that

under our current criminal code culpability for aggravated rape is not an essential

element of the offense). In its “Order of Dismissal,” the trial court held that “a defect

in an indictment is a matter which must be raised in the trial court and on direct

appeal.” While we acknowledge that various panels of this court have held that

allegations concerning the sufficiency of an indictment cannot be reviewed in

habeas corpus proceedings, we are constrained to note that this holding paints with

too broad a brush.2

 In accordance with Archer, we hold that the validity of the

indictment may be challenged in a habeas corpus proceeding only upon grounds 
3

It is the policy of this court to refer to minors who are victims of sexual abuse by the use

of their initials to pro tect their iden tity. See State v. Schimpf, 782 S.W.2d 186, 188 note 1 (Tenn.

Crim. App. 1989).

4

that (1) it fails to properly charge an offense or (2) the convicting court was without

jurisdiction.

B. Sufficiency of Indictment

The indictment in the instant case charged as follows:

[t]hat CHARLES EDWARD ORREN heretofore, to wit, on or about the

latter part of May, 1984, in the County aforesaid, did engage in

unlawful sexual penetration of NLF,[3

] a female of eleven (11) years of

age, in violation of Section 39-2-603, Tennessee Code Annotated, and

against the peace and dignity of the State of Tennessee.

The above language sets forth, verbatim, the crime of aggravated rape in the words

of the corresponding statute as it existed on the date of the offense. See Tenn.

Code Ann. § 39-2-603 (1982).

In determining whether an indictment fails to charge an offense because it

has omitted the mens rea of the offense charged, it is first necessary to establish

whether the crime occurred under the old or the new criminal code, i.e., before or

after November 1, 1989. The new criminal code which, in large part, is an adoption

of the MODEL PENAL CODE, marked a substantial departure from the old code which

was common law in origin. Those offenses which occurred after November 1, 1989,

the effective date of our current code, are governed by our supreme court’s recent

decision in State v. Hill, 954 S.W.2d at 725. In Hill, the court concluded that the

omission of the mens rea element from an offense is not always fatal to the

indictment. Id. at 726. A post-1989 indictment is legally sufficient if: (1) the

language satisfies the constitutional requirement of notice to the accused, (2) its

form meets the requirement set forth in Tenn. Code Ann. § 40-13-202 (Supp. 1996),

and (3) the requisite mental state can be logically inferred from the alleged criminal

conduct. Id. at 726-727. 
4We note that, as a basis for its rationale, the decision in Hill relies upon Tenn. Code Ann.

§ 39-11-301(c) (1991) (requirements of culpability and the mental states of intentional, knowing or

reckless). Obviously, to the extent that Tenn. Code Ann. § 39-11-301(1) and the mental states of

“intentional, knowing or reckless,” as they exist under our current criminal code, were not a part of

our com mon law code prior to 198 9, Hill is inapplicable to pre-1989 indictments. Although we find

Hill not controlling for pre-1989 offenses, the principles of Hill are applicable. It has long been the

rule in this state that where a statute creates an offense, the indictment must charge the facts and

circum stance s which constitute the offen se as m entioned in the statute . Hill, 954 S.W.2d at 729;

see also Cam pbell v. State , 491 S.W .2d 359, 3 61 (Te nn. 1973 ); Peek v. State, 21 Ten n. (2 Hum .)

78, 85-86 (184 0). Alth ough it is be tter to strictly p ursu e the word s of th e statute, it is sufficient if

words of equiva lent imp ort or of m ore com prehen sive imp ort are us ed. See Cam pbell, 491

S.W .2d at 361 ; Peek, 21 Tenn. (2 Hum.) at 86.

5

See, e.g., Tenn. Code Ann. § 39-2401 (murder required that the killing be malicious);

Tenn. Code Ann. § 39-4202 (larceny required a felonious taking); Tenn. Code Ann. § 39-4217

(forgery required a fraudulent making); Tenn. Code Ann. § 39-801 (bribery required a corrupt

offer); Tenn. Code Ann. § 39-501 (arson required malice). In sum, over twenty different terms are

used th rougho ut the pre- 1989 C ode to ex press th e require d me ntal state. D avid L. Ra ybin, The

Propo sed Te nness ee Crim inal Code --Gen eral Interpr etive Pro visions a nd Cu lpability, 41 TENN. L.

REV. 131, 144 (1973). Clearly, one of the objectives in the enactment of our current criminal code

was to alleviate the confusion that existed from the sheer number of different mental states and

their varying definitions. This was accomplished by adopting four mental states which define the

required culpability for the respec tive offens es, i.e., intentional, kn owing, rec kless, a nd neg ligent. 

5

If, however, the offense occurred prior to November 1, 1989, a different

analysis is required.4 Under the pre-1989 Criminal Code, the requisite mental state

of the crime was often found in the statutory definition of the particular offense.5

Thus, the court must review the indictment to determine whether the challenged

indictment tracks the language of the statutory offense charged. Recitation of the

statutory language gives rise to the presumption that the indictment sufficiently

apprises the defendant of the mental element required. Cf. Campbell v. State, 491

S.W.2d 359, 361 (Tenn. 1973). A number of the statutory offenses under our old

code, however, contained no defined mental state. This case, involving aggravated

rape, illustrates one such example. Although no mens rea is included in the

definition of the offense of aggravated rape, this does not mean, however, that none

is required. If this were the situation then the crime of aggravated rape would be

one of strict liability. See Dison, No. 03C01-9602-CC-00051. We note that the trial

court’s dismissal of this case was due, in part, to its finding that, prior to November

1, 1989, “the law . . . did not require the State to prove a culpable mental state” with

respect to the offense of aggravated rape. This finding is erroneous. “[The] mere

omission [from the statutory definition of the offense] of any mention of [the mental

state] will not be construed as eliminating that element from the crimes denounced.” 

Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250 (1952); see also
6

Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088 (1985)

(“eliminating the mens rea requirement would criminalize a broad range of

apparently innocent conduct.”).

The requirement that scienter is a necessary element in the proof of every

crime in both common law offenses and statutory offenses is fundamental. The

United States Supreme Court decision in Dennis v. United States, 341 U.S. 494,

500, 71 S.Ct. 857, 862 (1951), observed: “[t]he existence of a mens rea is the rule

of, rather than the exception to, the principles of Anglo-American criminal

jurisprudence.” Again, speaking on the necessity of scienter, the Supreme Court

held:

Crime, as a compound concept, generally constituted only from

concurrence of an evil-meaning mind with an evil-doing hand, was

congenial to an intense individualism and took deep and early root in

American soil. As the states codified the common law of crimes, even

if their enactments were silent on the subject, their courts assumed

that the omission did not signify disapproval of the principle but merely

recognized that intent was so inherent in the idea of the offense that it

required no statutory affirmation. Courts, with little hesitation or

division, found an implication of the requirement as to offenses that

were taken over from the common law. 

Morissette, 342 U.S. at 251-252, 72 S.Ct. at 244. The Supreme Court’s decision in

Morissette applied common law mens rea to statutory crimes. Morissette, 342 U.S.

at 263, 72 S.Ct. at 251. Moreover, there is an interpretive presumption that a mens

rea is required for those crimes which have their origin in the common law. Id. 

Thus, in those statutory crimes, originating from the common law, which do not

expressly include scienter in their definition, the mens rea to be applied is that mens

rea required for the offense under the common law. See Morissette, 342 U.S. at

263, 72 S.Ct. at 251; United States v. United States Gypsum Co., 438 U.S. 422,

437, 98 S.Ct. 2864, 2873 (1978). 

The offense of aggravated rape is a crime which has its origins in the
6At common law, rape was defined as “the unlawful carnal knowledge of a woman over

the age of ten years forcibly and without her consent, or, as otherwise expressed, by force, or

forcibly, and against her will, or such knowledge of a female child under the age of ten years either

with or without her consent.” Wilkins, 655 S.W.2d at 916 (citation omitted). We note that the

offense in the present case is aggravated rape and not rape. Our supreme court has recognized,

however, that the offense of aggravated rape is but an aggravated form of the common law

offens e of rape . Wilkins, 655 S.W.2d at 916.

7

common law.6

 See State v. Wilkins, 655 S.W.2d 914, 916 (Tenn. 1983) (citations

omitted). At common law, rape was a general intent crime. See 75 C.J.S. Rape §

9 (1952). Accordingly, no intent is required other than that evidenced by the doing

of the acts constituting the offense. Id.; see also Wilkins, 655 S.W.2d at 916;

Walden v. State, 156 S.W.2d 385, 387 (Tenn. 1941). Thus, for the indictment to be

sufficient in the present case it need only charge that the accused unlawfully

sexually penetrated a victim under the age of thirteen. Again, the necessary mens

rea is the intent to commit the unlawful act. Based upon the foregiong, we conclude

that the language of the challenged indictment sufficiently informed the accused of

the charge against him. 

The judgment of the trial court is affirmed.

____________________________________

DAVID G. HAYES, Judge

CONCUR:

________________________________

DAVID H. WELLES, Judge

________________________________

THOMAS T. WOODALL, Judge