# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1997
DARRE LL DO UGLAS ) C.C.A. NO. 03C01-9701-CR-00031 SHEETS, ) ) Appellee, ) ) JOHNSON COUNTY VS. ) ) HON.LYNN BROWN HOWARD CARLTON, ) JUDGE WARDEN, and ) STATE OF TENNESSEE ) ) Appe llant. ) (Habeas Corpus)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF JOHNSON COUN TY
FOR THE APPELLANT : FOR THE APPELLEE : DARRELL D. SHEETS JOHN KNOX WALKUP Pro Se Attorney Generaland Reporter P.O. Box 5000 Mountain City , TN 37683 MICHAEL J. FAHEY Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 C. BERKELEY BELL Distri ct Attorney General Route 19, Box 99 Johnson City, TN 37601
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Petitioner, Darrell Douglas Sheets, a ppeals the t rial cour t’s order den ying him habeas corpus rel ief. He was i ndicted for and convicted of aggravated rape. He argues tha t his conv ictionis void because the indi ctment charging him with the offen se of aggrava ted rape is fatally defective beca use it failedto all ege the requis ite mens rea. W e affirm the judgm ent of the trial court dismissing t he petiti on.

In his habeas corp us pet ition, the Petit ioner all eges that t he indict ment failedto specif

y the mens rea for

the offens e of ag gravated rape a nd thu s, his convicti on was void. The Pet itioner was indicted for aggravated rape on May 4, 1992. He plea ded gu ilty to that o ffense on September 23, 1992, an d was sentenced to fifteen years i ncarcera tion. He f iled a pet ition f or writ of habeas corpus on August 19, 1996. The trialcourt dis missed the petition on September 9, 1996, without

a hearing. The Petiti oner fil ed a motion to set asi de the order of dismissal and a motion for entry of

find ings of fact and conclusions of law on October1, 1996
. The trialcourt deni ed the motion on December 10, 1996. The Petitioner now appeals.

The Petitioner a rgues th at his convic tion for a ggrav ated ra pe is vo id because the indi ctment did notall ege therequi sit e mens rea for t he offense. An indict ment or presentment must provide not ice of t he offense cha rge d, an adequ ate basis for

the entry

of a proper judgment, and suitable protection against doub le jeopard y. State v . Trusty , 919 S.W .2d 305 , 310 (T enn. 19 96); State v.-3-

Byrd , 820 S.W.2d 739, 741 (Tenn . 1 991); State v. Lindsay , 637 S.W.2d 886, 890 (Tenn. Crim . App. 1982 ). The indictme nt “must state the facts in ordinary and co ncise l anguage in a manner that would enable a per son of common understandingto know what i s intended, and with a degree of c ertainty which would enable the cour t upon co nvicti on, t o pronoun ce the prope r judgmen t.” Warden v. State , 381 S.W.2d 244, 245 (Tenn. 1964); Tenn. Code Ann. § 40-13- 202.

A lawful accusation i s an essen tial jurisdictiona l elemen t, thus, a prosecutioncanno t procee d withou t an indictm ent that su fficientl y inf orms the accused of the essenti al eleme nts of the o ffense. State v. Perkinson , 867 S.W.2d 1, 5 (Tenn. Crim. App . 1992); State v.Mor gan , 59 8 S. W.2d 7 96, 797 Tenn . Cr im. App. 1979). A judgment based on an indic

tment that does

not all ege all t he essentialeleme nts of the o ffense is a nullity. Wa rden v. Sta te , 381 S.W .2 d at 245; McCracke n v. Stat e , 489 S.W .2d 48, 53 (T enn. Crim. A pp. 1972). Furthermore, the Tennessee Code provides that "[ i]f the def inition of an offense within this title does not plainly d ispense with a m ental elem ent, intent, knowledge, or recklessness suff ices to es tablish the culpable menta l state." Tenn . Code Ann. § 3 9-11-30 1(c).

The Petitioner c ites a rece nt decisio n of a pane l of this Court that held an indict ment invali d which charged t he offense of aggravated r ape in language nearly identical to that in the case sub judice

. See State v. Rog er Da le Hill , C.C.A. No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App

. , Nashvil le, June 20, 199 6), r ev’d , ___ S.W.2d ___ (Tenn. 1997). He argues that t he ind ictme nt fails

to assert a reckless, knowing or i ntentionalmental state as-4-

required by Tennessee Code Annotated sect ion 39-11-301(c). The indict ment reads as follows: The Gran d Juro rs of the afores aid Sta te and Coun ty duly empaneled and sworn, upon their oa th, pres ent tha t: Darre ll D ou glas Sheets bet ween November 1991 and February, 1 992 in the State and County aforesaid, and before the finding of t he indict ment, did unl awfully have sexual penetrati on of [A.M.L.], a victi m less than 13 year s of age, contrar

y to the statute, and all of w hich is ag ainst the p eace a nd dign ity of t he State o f Tennessee.
Our supreme court recen tly provid ed gu idanc e on th is issue in its opini on reversi ng Hill : foroffenses which neither ex pressly re quire no r plainly dispe nse with the requirement

for a cul pable mental state, an in dictmentwhich fails to all ege such me ntal state will be sufficient to supp ort prosecuti on and convicti on for that offense so l ong as (1) the l anguage of the ind ictment i s suffi cient to meet the cons tit uti onal requirements of notice to the accused of t he charge against which the accusedmus t defen d, ade quate basis for entr y of a proper judg ment, and protection from d ouble jeopa rdy; (2) the form of t he indict ment meets the requi rements of Tenn. Code Ann. § 40-13-202; and (3) the mental state can be logi cally i nferred f rom th e conduct alleged.
Hill , ___ S.W .2d ___ (Te nn. 1997).
Here, the indictment clearly satisf ies the constit utional notice req uirements. There was ade q uate notice that the Defenda nt was charg ed with the statutory offense of aggravated rape as codif ied in Tennessee Code Anno tated sect ion 39-13-502(a)(4) (1991), whi ch contained the essenti al elements of the offens e. Here too, is su fficient in forma tion by w hich th e trial ju dge could pronounce judgment for the offen se of agg ravated ra pe. Fina lly, t he Defe ndan t is adeq uately protected agai nst a second prosec ution for an offense of

aggravated-5-

rape of the victim occurri ng during the period of No vember 1 991 to Feb ruary 1992.
Regarding the second requi rement, it is also appar

ent that t he indict ment
was drafted suc h that a pers on of or dinary i nt elligence could un derstan d with what offense hewas charged. The l anguage in theindict ment clearl y tracks t he language of the statute. Li kewise, t he thi rd requi reme nt, that the m ental state be logical ly inferred fro m the indi ctment, has been satisf ied. One can i nfer fr om the charged act t hat the Petiti oner“did unlawfully have sexual penet ration” , that the required mental state of reckless, knowing, or intenti onal was present inthe nature o f the allege d crimina l conduc t. Hill , ___S.W.2d at ___. Therefor e, we conclude that

the indict ment in thi s case adequately informed the Defendant of the charg es ag ainst h im and does not provi de suffi cient grounds for his claim for habea s corpu s relief.
According ly, we affirm the judgm ent of the tria l court d ism i ssing the petiti on.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ JERRY L . SMI TH, J UDGE