# FILED
February 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1997

CHARLES EDWARD ORREN, ) ) No. 03C01-9704-CR-00141 Appellant ) ) JOHNSON COUNTY vs. ) ) Hon. LYNN BROWN, Judge HOWARD CA

RLTON, Warden ) and STATE OF TENNESSEE, ) ) (Writ of Habeas Corp us) Appellee )
For the Appellant : For the Appellee : Charles Edward Orren , Pro Se John Knox Walkup N.E.C.C. #108907 Attorney General and Repor ter P.O. Box 5000 Mountain City, TN 37683 Michael J. Fahey, II Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493

OPINION FILED: AFFIRMED
David G. Hay

es Judge2 O P I N I O N
The appellant, Charles Edwa rd Orren, appeals the Johnson County Criminal Court’s dismissal of his pro se petition for writ of habeas c orpus. The appellant was originally indi cted by the Washington County Grand J ury for aggravate d rape on May 6, 1985. He pled guilty to this charge in August, 1985 and received a sentence of thirty years impr

isonment. The instant petition w as filed on February 10, 1997.In seeking issuance of the writ of habeas corpus, the appell ant contends that the judgment entered against hi m is void because the indi ctment failed to allege the
mens rea

of the offense charged. The trial cour t 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, th e court included in its findi ngs that, at the time of the offense, proof of a culpable mental state was not required. The appellant appeals the trial court’s ruling.

ANAL YSIS

A. Grounds f

or Habeas Corpus Relief We first address the question of whether th e 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 juri sdiction 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, 16 4 (Tenn. 1993). A void judgment is one which shows “upo n the face of the judgment or the record of th e proceedings upon which the judgment is rendered” that the convi cting court was w ithout jurisdiction. Lack of jur isdiction was address

ed by a panel of this court i n State v. Nixon , No. 02C01-9612-CC-00484 (Tenn. Crim. App. at Jackson, Dec. 3, 19 97),1 In the case bef ore us, it

is undisput

ed that t he 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 proposi tion t hat chall enges to the suf ficiency of an indict ment may not be reviewed in habeas corpus pr oceedings 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. Cr im. App. 1969). Both Haggard and Brown involv ed challenges not pertai ning to t he court’s subject matter jurisdi ction or whether the i ndictment fai led to st ate an offense. Defects in t he indict ment, other than those chal lenging subj ect matter jur isdict ion or fai lure to st ate an offense, are waived unl ess raised pr ior to trial. See Tenn. R. Crim. P. 12(b)(2). 3 wherein we held: ‘Lack of jurisdiction’ r

efers to subject matter jurisdic tion which a defendant has no power to wai ve. 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 particula r type of action.[ 1 ] . . . In reference to objections alleging failure to state an offense, the rational e is that if the indictment fails to include an essential element of the offense, no crime is charged and, ther efore, no offense is before the court. See State v. Perkinson , 867 S.W.2d 1, 5-6 (Ten n. Crim. App. 1992). Thus, when the mental state is an essential element of the offense and the req uisite mental state cannot be fairly imported from the language of the char ging instrument, the trial court is div

ested of the jurisdiction neces sary 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) (holdi ng that under our current crimin al 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 can not 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 vali dity of the indictment may be challenged in a habeas corpus proceeding only upon grounds3 It is the poli cy of this court to r efer to minors who a re vict ims 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 proper ly charge an offense or (2) the convicting cour

t 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 penetrati on of NLF,[ 3 ] a female of eleven (11) year s 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 agg ravated rape in the wo rds 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 off ense because it has omitted the mens rea of the offense charged, it is first necessary to establish whether the crime occur red 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 C ODE , marked a substantial departure from the old code which was common law in ori gin. Those offenses which occu rred after November 1, 1989, the effective date of our current c ode, are governed by o ur 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 alway s fatal to the indictment. Id . at 726. A post-1989 indictment is legally sufficient if: (1) the language satisfies the cons titutional requirement of noti ce to the accused, (2) its form meets the requirement set forth in Ten n. Code Ann. § 40-13-202 (Supp. 1996), and (3) the requisite ment al state can be logicall

y inferred from the alleged criminal conduct. Id . at 726-727.4 We note that, as a basi s for it s rational e, the deci sion in Hill relie s upon Tenn. Code Ann. § 39-11-301(c) ( 1991) (requi rements of culpabi lit y and the mentalstates of i ntenti onal, knowi ng or reckless). Obviously , to the extent t hat Tenn. Code Ann. § 39- 11-301(1) and t he mental states of “intent ional, knowing or reckl ess,” as they exist under

our current

criminal cod e, were not a part of our com mon law code prior to 198 9, Hill is inappl icable t o pre-1989 in dictments. Although we fi nd Hill not controlling for pre-1989 offenses, the principles of Hill are appli cable. I t has long beenthe rule i n this st

ate that where a statut e creates an off

ense, the i ndictment must charge t he 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, 8 5-86 (184 0). Alth oug h it is be tter to strictly p ursu e the word s of th e sta tute, it is suff icient if words of equiva lent imp ort or of m ore com prehen sive imp ort are us ed. See Cam pbe ll , 491 S.W .2d at 361 ; Peek , 21 Tenn. (2 Hum.) at 86. 5 See, e.g. , Tenn. Code Ann. § 39-2401 (murder requir ed that t he kill ing be malicious ); Tenn. Code Ann. § 39-4202 ( larceny required a felonio us taking); Tenn. Code Ann. § 39-4217 (forgery required a fraudulent making); Tenn. Code Ann. § 39- 801 (briber y requi red a corrupt offer); Tenn. Code Ann. § 39-501 (arson requir ed 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 T ENN
. L. R EV
. 131, 144 (1973). Cl early,one of the obj ectives i n the enactment of our current cri minal code was to all eviate t he confusion t hat existed from the sheer number of di fferent mental states and their v arying definitions. This was accomplished by adopting four mental states whi ch define t he required culpability for the respec tive offens es, i.e. , intentional, kn owing, rec kless, a nd neg ligent. 5 If, however, the offense occurr ed prior to November 1, 1989, a different analysis is requi red. 4 Under the pre-1989 Crimi nal Code, the requisite ment al 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 w hether the challenged indictment tracks the lang uage of the statutory offense charged. Recitation of the statutory language gives rise to the presumption that the indictment sufficien tly apprises the defendant of the mental element r equired. Cf

. Campbell v. State , 491 S.W.2d 359, 361 (T enn. 1973). A number of the statutory off enses under our old code, however, containe d no defined mental state. This case, i nvolving agg ravated rape, illustrates one suc h example. Although no mens rea is included in the definition of the offense of aggravated r ape, this does not mean, howev er, that none is required. If this w

ere the situation then the cri me of aggravated rape w ould 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, t o its finding that, prior

to November 1, 1989, “the law . . . di d not require the State to pr ove a culpable mental state” with respect to the offense of aggravated rape. This f inding 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 crime s denounced.” Morissette v. Unit

ed States , 342 U.S. 246, 263, 72 S.Ct. 240, 250 (1952); see also6

Liparota v. United States , 471 U.S. 419, 426, 105 S.Ct. 2084, 2088 (1985) (“eliminating the mens rea requirement would cr

iminalize a broad rang e 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 dec ision in Dennis v. United States , 341 U.S. 494, 500, 71 S.Ct. 857, 862 (1951), obse rved: “[t]he exist ence 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, g enerally constituted onl y from concurrence of an evil-meani ng mind with an evi l-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the stat es codified the common law of cri mes, even if their enactments were si lent on the subject, their c ourts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offe nse that it required no statutory

affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses tha t were taken over from the c ommon law. Morissette , 342 U.S. at 251-252, 72 S.Ct. at 244. The Suprem e Court’s decision in Morissette

applied c ommon la w mens rea to statutory crimes. Morissette , 342 U.S. at 263, 72 S.Ct. at 251. Moreov er, there is an interpretive presumption that a mens
rea is required for those cr imes which have their

origin in the common law

. Id

. Thus, in those statutory cr imes, originating from the common law, which do no t expressly include

scienter in their definition, the mens rea to be applied is that mens
rea required for the offense under the c ommon 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 the6 At common law, rape was defi ned as “the unl awful carnal knowledge of a woman over the age of te n years for cibly and without

her consent, or, as other wise expressed, by force, or forcibly, and agai nst her wil l, or such knowledge of a female chi ld under t he age of ten y ears either with or without her consent.” Wilkins , 655 S.W.2d at 916 (ci tationomitted). We note that the offense in t he present case i s aggravated r ape and not rape. Our supreme court has recogni zed, however, tha

t the offense of aggravated rape is but an aggravated f

orm 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, r ape 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 accuse d unlawfully sexually pe netrate d a victim u nder the age of th irteen. A gain, the necessar y mens
rea is the intent to commit the unlaw ful act. Based upon the foregiong , we conclude that the language of the challen ged indictment sufficiently informed the accused of the charge against him.
The judgment of the trial court i s affirmed.

____________________________________ DAVID G. HAYES, Jud ge
CONCUR:

________________________________ DAVID H. W ELLES, Judge

________________________________ THOMAS T. W OODALL, Judge