# FILED
January 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON NOVEMBER SESSION, 1997

ROGER LEE KIMMEL, ) ) No. 02C01-9701-CR-00006 Appellant ) ) SHELBY COUNTY vs. ) ) Hon. JOSEPH B. DAILEY, Judge STATE OF TENN ESSEE, ) ) (Writ of Habeas Corp us) Appellee )

For the Appellant : For the Appellee : Roger Lee Kimmel , Pro Se Charles W. Burson P. O. Box 1000 Attorney General and Repor ter Henning, TN 38041-1000 Kenneth W. Rucker Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 William David Bridgers Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243

OPINION FILED: AFFIRMED

David G. Hay

es Judge1 Initially, we n ote tha t the pe titioner d id not tim ely file his n otice o f appe al. The trial cou rt's order was enter

ed on October 12, 1996,but the not ice of appeal was not filed until

December 12, 1996. In t he interest

of justi ce, however, we have decided t o waive the timely fi ling of the noti ce of appeal. See Tenn. R. Ap p. P. 4(a). 2 OPINION

The appellant, Roger Lee Kimmel, appeals the Shelby County Criminal Court’s dismissal of his pro se application for writ of habeas corpus. In 1996, a Lake County Grand Jury r

eturned a two count indictment charging the appellant with the offenses of rape of a child and aggrav ated sexual battery. O n March 25, 1996, the appellant pled guilty to the offense of aggravated sex ual battery and was s

entenced to eight years in the Department of Correction. The appellant is currently incarcerated at the Mark H. Luttrell Reception Center in Memphis.

On September 13, 1996, the appellant fil ed an application for a wri t of habeas corpus alleging that the judgment entered against him on the charge of aggrav ated sexual battery is v

oid because the indictment failed t o allege the mens rea

of the offense charged. Finding that the appellant’s petition “fail ed to state a claim upon which relief may be g ranted,” the trial court dismissed the appellant’s ap plication. The appellant now appeals this decision alleging that the trial court erred in dismissing his petiti on and, in the alternative,that the indictment is fatally defective. 1

After a review of the rec ord, we affirm the decision of the trial court.

I. Dismissal of Application for Writ of Habeas Corpus

The appellant first contests, r egardless of the merits of his claims and with disregard of the court’s finding that the petition failed t o state a cognizable g round for relief, the court’s dismissal of his application for writ of habe as corpus for failure2 "The true test of the sufficiency of

the indi ctment is not whether it cou ld have been made more definite and certai n, but whet her it con tains t he elements of the offense int ended to be cha rged , and ‘suff icient ly appr ises the d efen dan t of wh at he mu st be prep ared to m eet, a nd, in case any o

ther pr oceeding s are takenagainst him for a si milar of

fense, wh ether t he record shows with accuracy to what extent he ma y plead a former acquittal or conviction.” Hagner v. Unit ed States , 285 U.S. 427, 431, 52 S.Ct. 417, 419 (1931 ) (citations omitted). 3 to cite to any autho rity. The a ppellan t argues th at the ind ictment is fatall y defecti ve for failure to allege the mental state of the offense charged. In other w ords, the appellant contends that the indic tment failed to charge an offense and, ther efore, no offense is before the court. See Tenn. R. Crim. P. 12(b) ( a defect alleging the subject matter jurisdic

tion or failure to allege an offense may be raised at any ti me). See also State v. Perkinson , 867 S.W.2d 1, 5-6 (Ten n. Crim. App. 1992).

The indictment against the appellant reads: . . .[T]he defendant, ROGER LEE KIMM EL, on or about October 30, 1995, . . . unlawfully had sexual contact with [the victim], a child less than thirteen (13) years of age at the time of the commission of the offense . . . .
Habeas corpus relief is av ailable only when it appears upon the face of judgment or record of proceedi ngs upon which judgment is rendered that the convicting court w

as without jurisdic

tion or authority to sentence a defendant, or that a defendant's sentence of imprisonment or other restraint has exp ired. Archer v. State , 851 S.W.2d 157, 164 (Tenn.1993). If, from the face of the petition, the reviewing cour

t finds nothing to indicate th at the appellant’s challenged conviction might be void, the court may refuse the application w ithout a hearing. See Tenn. Code Ann. § 29-21-101, -109 (1980)

.
In order to satisfy both con stitutional and statutory guidelines, an indictment must contain the material elements of the offense and must sufficiently appris e the accused of the offense he is called upon to defend. 2 State v. Tate , 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995); see also Tenn. Code Ann. § 40-13-202 (1990); State v. Perkinson , 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992). When an offense “neither expressly requi res nor plainly dispenses with the requi rement for a culpable mental3 W e also ack now ledge the p revio us ru lings o f this c ourt h olding that “t he te rm ‘unlaw ful’ does not suffi cientl y all ege the mens rea of intent.” State v. Jones , No. 02C01-9503-CR-00061 (Tenn . Crim. A pp. at Jac kson , Mar. 7, 19 97); State v. Hill , No. 01C01-9508-CC-00267 ( Tenn. Crim . App. at N ashville, Jun e 20, 199 6); State v. W hite , No. 0 3C0 1-94 08-C R-0 027 7 (T enn . Crim

. App. at Knoxville, June 7, 1995). The term “‘unlawfully’ does not in the ordinary use of the word connote me ntal culpability.” Id

. 4 state, an indictment whic h fails to allege such mental state will be sufficient to support prosecution and conviction for that off ense so long as: (1) the language of the indi ctment is sufficient to meet the constitutiona l requirements of notice to the ac cused of the c harge against which the accused must defend, adequate basis for entr y of proper ju dgment; and prote ction fr om doub le jeopar dy; (2) the form of the indictment meets the requirements of Tenn. Code Ann. § 40-13-202; and (3) the mental state can be log ically inferred from the c onduct alleged. State v. Hill , No. 01S01-9701-CC-00005 (Tenn. Nov. 3, 1997) ( for publication ).

The conduct in the indictment before us alleges that the defendant had “sexual contact” with the victim. Thus, the relevant question is whether from this alleged conduct it “can be logically inferr ed” that the appellant was acting in te nt io na ll y, kn ow in gl y o r r ec kl es sl y. Te nn . C od e A nn . § 39 -1 1- 30 1( c)(1 99 1) . We find no such inference. In Hill , our supreme court found the lang uage “unlawful sexual penetration” sufficie ntly encompassing to supp ort an inference that the penetration was committed i ntentionally, knowi ngly or reckless ly. This is to say that, logically, for penetr

ation to occur, it cannot be c ommitted accidently or in any manner other than intentionally, knowingly or recklessly. How ever, the alleged conduct in the instant case i s factually distingui shable.

The phrase “sexual contact” infers no mental state. 3 Moreover, we note that sexual battery is n ot a crime of strict liabi lity. We are, therefore, unable to concl ude that the language “sex

ual contact” excludes al l inferences other than that the offense of aggravated sexual battery was committed intentionally, knowingly or4 We likewise reject importati on of the defi niti on of the ter m “sexual contact”

to supply

the mens rea to the statutory defini tion of the offense. A majority of j urisdictions have hel d that t he omission of an essent ial el ement from the charging i nstrument cannot be cur ed by a cit

ation or referen ce to the re levant statu te. State v. Ma rsha ll , 870 S.W.2d 532, 537 (Tenn. Crim. App. 1993)(cit ing United Stat es v. Pupo , 841 F.2 d 1235 (4th Cir. 19 88)). See also U.S. v. Hooker , 841 F.2d 1225 , 122 7-12 28 (4 th Cir . 198 8)(c iting a t leas t eigh t fede ral circ uits in acc ord w ith this rule and “the vast

majority

of the stat

e courts”).“[I]t is t he statement of facts in t he pleading,rather than the statutory citation that is controlling.” Hooker , 841 S.W.2d at 1227-1228 ( citi ng United States v. Wuco , 535 F.2 d 1200 , 1202 n. 1 (9th Cir. 19 76); United Stat es v. Hutcheson , 312 U.S. 219, 229, 61 S.Ct. 463, 464 (1941)).

5 In codify

ing the MODEL CODE culpability requ ireme nts, our leg islature ch ose to s ubstitute “intentionally” for “ purpos ely.” 5 recklessly. Clea rly, “sexual contact” could include an acci dental or inadvertent act of contact betw

een the accus

ed and the vi ctim. 4

The supreme court’s ruling in Hill holds that, for offenses which neither expressly requi re nor plainly dispens e with the requirement for a culpable mental state, “the required mental state may be inferred from the natur e of the criminal conduct alleged. Id . at 9. In contrast to Hill , the question before us is di stinguished: Is an indictment facially valid which charges an offense where the statute defining the offense does not contain a mental state and no mental state can be inferred from the conduct alleged? We hold that the challe nged indictment is val id.

The culpability requirements of our criminal code are virtually a verbatim recitation of the culpabilit y requirements of the MODEL PENAL C ODE . See Tenn. Code Ann. § 39-11-301 et. seq . (1991). The corresponding section of the MODEL PENAL
CODE , Section 2.02(3), to our provision Tenn. Code Ann. § 39-11-301(c), provides: (3) Culpability Requi red Unless Otherwis e Provided . When the culpability sufficient to establish a material element of an offense is not prescribed by law , such element is established if a person acts purpose ly, 5 knowingly or r ecklessly with respect thereto.

We find it helpful to review the MODEL PENAL C ODE COMMISSI ON COMMENTARY which follows the abov e subsection for an explanati on of its purpose and objectiv e. Subsection (3) is incl uded as an aid to drafting the definitions of specific crimes. When it is intended that p urpose, knowledge or6 The drafters of the Il linoi s Criminal Code remarked, “ Reference to ‘ general i ntent’crimes seem s unne cessa ry, if the definition of a particular offens e desc ribes ac curately the m ental state involv ed - a specifi c intent

if that is appropri ate, or [

a general i ntent, i .e.,] the knowledge of specified facts or of the natural consequenc es of described acts.” See Comm ittee Comm ents, 720 Ill. Comp. Stat. Ann. 5/4-3 (W est 1993). 6 recklessness suffice for the estab lishment of culpability for a particular offense, the draftsmen need make no provisi on for culpability; it will be supplied by this subsection. There is a rough corr espondence between this provision and the c ommon law requirement of “general intent .” 6

In State v. Dison , No. 03C01-9602-CC-00051 ( Tenn. Crim. App. at Knoxvi lle, Jan. 31, 1997), we held that, becaus e no mental state was incl uded in the definition of the offense, none need be alleged in th e indictment because the offense charged is a general intent crime. Other jurisdictions w hich have codified the culpabi lity requirements of the MODEL PENAL C ODE , as has Tennessee, have followed this approach. See People v. Norris , 88 Cal. App. 2d Supp. 32, 37, 152 C al. Rptr. 134- 137 (1978); State v. Bitting , 291 A.2d 240, 242 (Conn. 1971); People v. Thompson , 466 N.E.2d 380, 384-387 (Ill. A pp. 2nd Dist. 1984); State v. Ayer , 612 A.2d 923, 925 (N.H. 1992). See also United States v. Garret t , 984 F.2d 1402, 1415 (5th Cir. 1993); Tallman v. United States , 465 F.2d 282 (7th Cir. 1972) . Moreover, legal treatises are in agreement with this approach. In modern practice, it is unnecessary to charge guilty knowledge unless it is included in the statutor y definition of the offense. Hill , No. 01S01-9701-CC-00005 ( citing 41 Am.Jur.2d, Indictments and Information , § 126 (1995)). In sum, the mens rea requireme nt, omitted fr om a statutory definition, need not be alleged in the charging instrument beca use it is imputed by the statute. Tenn Code A nn. § 39-11-301(c). The disti nguishing factor is the legislature’s prerogat ive of a mental state from a range of culpabi lity. Dison , No. 03C01-9602-CC-0005. Thus,we conclude that when the legislature has explicitly omitte

d the mental state in the definition of a crime, the crime is one of “general i ntent.” Accordin gly, we find the off ense of aggravated sexual bat tery a general intent crime and no mental state need be alleged in the indictment.7 "Sexual contact” is defined to “ include the intent ional t ouching of t he victi m’s, the defendant’s or any oth er person’s i ntimate part s, or the i ntenti onal touchi ng of the cl othing covering t he immediate area of t he victi m’s, the defendant’s, or any other person’s inti mate parts, if that intent ional t

ouching can be reasona bly const rued as being f or the purpose of

sexual arousal or gratification .” Tenn . Code A nn. § 39- 13-501 (6) (199 1).

8 A greater burd en, theref ore, is then placed upon t he trial courts who bear the responsibi lit

y of deter

mining “ the required mental state,” see Hilll , No. 0 1S0 1-97 01-C C-0 000 5, in hopes that “ the requ ired m enta l state ” sele cted will with stan d app ellate scru tiny. 7 The dilemma is further compounded in the p resent case with the q uestion: If the “required mental state may be inferred,” whi ch mental state is requir ed? Aggravated sexual

battery requires an intentional touching which must be reasonably construed as be ing for the purpose of sexual arousal or gratificati on. Tenn. Code Ann. § 39-13-504 (1991). The elements of the offense of aggravated sexual battery as cha rged by the indictment i n this case requires p roof (1) of sexual contact, which includes the intentional touching of the victim 7 and (2) that the victim was less than thirteen years of age. Thus, the mental state of the first element is that of “intentional” while the mental state for the latter elem ent is either intentional, knowing or reckless because no mental state for that element or the of fense is defined. Tenn. Code Ann. § 39-11-301(a) (1) and (c). Thus, to req uire a finding of only one mental state, for ex ample, recklessness, for the i nstant offense would be inconsistent and irreconcilable with the remaini ng element which req uires intentional culpability. The end res ult is a reckless-i ntentional crime. Indeed, many of our statutory offenses are so str uctured to contain differing mental states for the respective elements. This is further complicated by the fact tha t, as originally enacted, Title 39 of the Criminal Code of 198 9 contained eighty-seven crimes which specify no mental element. Additionally, numerous statu tory offenses exist which contain two mental states, permitting the selection of one. 8 The MODEL CODE and our criminal code clearly contemplate that culpability must be addressed separa tely with respect to each mater ial element. Section 2.02 MODEL PENAL C ODE . “A person commits an offense who acts intenti onally, knowingl y, recklessly o r with criminal negligence as the definition of the offe nse requires with respect to each el ement of the offense .” Tenn. Code An n. § 39-11-301 (a)(1). In reviewing MODEL CODE crimes,8

it must be recognized that the mens rea requirements of a particul ar crime may differ with regard to the different elements of the crime. Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 194(1977)

. See also State v. Parker , 887 S.W.2d 825 (Tenn. Crim. App. 1994) (rec ognizing the mental s

tates of intentional and recklessness in agg ravated sexual battery ). We hold this rationale to be consist ent with our conclusion that the culpability req uirements of our criminal code do not require, as in this c

ase, the inclusion of a desig nated mental state in the charg ing instrument where none is contained in the statutory offense.

For these reasons a nd the pl ethora o f autho rity suppo rting this position , we conclude that the indictment in the present case was cons titutionally sufficient.

____________________________________ DAVID G. HAYES, JUDG E

CONCUR:

( SEE CONCURRING OPINION GARY R. WADE, JUDGE

___________________________________ PAUL G. SUMMERS, JUDGE