# FILED February 3, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1997

GEO RGE F. JON ES, JR ., ) C.C.A. NO. 03C01-9702- CR-00062 ) Appe llant, ) ) JOHNSON COUNTY ) V. ) ) HON. LYNN W. BROWN, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (HABEAS COR PUS)

FOR THE APPELLANT : FOR THE APPELLEE : GEORGE F. JONE S, JR. , pro se JOHN KNOX WALKUP #16327 4 NECC Attorney General& Reporter P.O. Box 5000 Mountain City , TN 37683-5000 SANDY COPOUS PA TRICK Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 DAVID CROCKETT Distri ct Attor ney General Route 19, Box 99 Johnson City, TN 37601

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Petitioner, G eorge F . Jones, J r., appea ls as of right t he tr ial cou rt’s dismissal of his pet ition f or writ of habeas corpus reli ef. We affir m the judgment of the trial cou rt.

Petiti oner was indicted on multipl e counts of aggr avated rape in viol ation of Tennessee Code A nnotated se ction 39-13-50 2. All offenses we re alleged to have been committed in November of 1989. Foll owing a jury tri al, Peti tioner was convicted on four (4) counts of aggr avated rape and sentenced to four (4) concurrent sentences of twenty

(20) years. On December 5, 1996, Petit ioner fi led a peti tion for habeas corpus reli ef in the Johnson County Crimi nal Cour t which is the subj ect of this appeal. I n essence, Peti tioner ar gues that hi s sentence is void because t he culpa ble mental state for the of fense ofaggravat ed rape was not al leged in t he indictme nts.

In support of

his argument, Petiti oner reli es upon the de cision of this C ourt in State v. Rog er Da le Hill , C.C.A. No. 01C01-9508-CC-00267, Wayne County (Tenn. Cri m. App., Nash ville, Jun e 20, 1 996). H owev er, our supre me c ourt re verse d this Cou rt’s decision i n Hill
. See Stat e v. Hill , 954 S.W.2d 725 (Tenn. 1997). The Tennessee Supreme Court held i n Hill as follows : [F]or offenses whi ch neither expressly require nor plainly d ispense with the requirement f

or a culpabl e men tal state , an ind ictme nt whic h fails to allege such mentalstate wil l be suff icient to support p rosecution and convicti on for that

offense so l ong as (1) the language of t he indict ment is suff icient to meet the constit utional requirements of notice to the accused of t he charge against whi ch the accused must defen d, ade quate basis-3- forentry of

a pr o per jud gme nt, and protec tion from doub le jeopardy; (2) the form of theindict ment meets the requi rements of Tenn. Code Ann. § 40-13-202; and (3) the mental state can be logically inferred f rom the co n duct alleged. Id . at 726-2 7.
The issue b efore th is Cou rt is the same issue addres sed by the suprem e court in Hill , that is, w hethe r an ind ictme nt cha rging a ggrav ated ra pe wa s void forfailure to allege a cul pable mental state. Tennessee Code Annotated section § 39- 13- 502(a) (3)(A) defines aggr avated rape asthe “un lawful s exual p enetra tion of a victim by the defendant” wher e the “defendant

is aided or

abetted by

one (1) or more ot her persons; and [f]or

ce or coerci on is used to accompli sh the act. ” This stat ute does not specify a me ntal state, but the requir

ed mental state may be inferr ed from the nature of the criminal conduct alleg ed in the i ndictments i n the Petit ioner’s case. The indictments alleg ed that Petitioner o n four dif ferent d ays did “unlaw fully, sex ually penetra te [the victi m] by force or coercion whi le aided and abet ted by one or

more persons, in vi olat ion of T.C.A. § 39-13-50 2, contrary to the statute, and aga inst the peace and dign ity of the State of Tenn essee ." Obviously, the act for which Peti tioner is indicted, “unlawf ully, sexually penetrat[ ing]” a v ictim, is “committable only if the principalactor’s mens rea is intentional, knowing , or reckless.” Hill , 954 S.W.2d at 729. Also, the language of t he i n dictment suf ficien tly appr ised Defendant of the offenses charged, and were stated in ordinary and co ncise lan guage so that a person of common understanding would know what was intended. Tenn. Code Ann. § 40-13-2 02. Furth ermor e, the langu age in the indictme nts ade quately p rotects Defendant against subsequent reprosecuti on for this sam e offense
. Hill , 954 S.W.2d-4-

at 727, 729. Therefore, the indi ctments in t his case meet const ituti onal and statutory requirements of

notice and form and are, ther efore, valid.

Petition er’s petiti on may be dism issed su mm arily if the petition fails to state a cogniza ble claim
. See Passa rella v. State , 891 S.W .2d 619 , 627 (T enn. Cr im. App. 1994); Tenn. Cod e Ann. § 29 -21-109. The t rial cour t properl y dismissed Petiti oner’s petition.
Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ DAVID G. HAYES, Judge