# FILED
October 31, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE SEPTEMBER 1997 SESSION

I. G. COURTNER, ) ) C.C.A. NO. 03C 01-9701-CR-00005 Appellant, ) ) JOHNSON COUNTY VS. ) ) HON. LYNN W. BROWN, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Habeas corpus)

FOR THE APPE LLANT: FOR THE APPELLEE:
ISAAC G. COURTNER, pro s e JOHN KNOX WALKUP TDOC no. 132603, Unit 10 Attorney General & Repor ter Northeast Correctional Center P.O. Box 5000 MARVIN E. CLEMENTS, JR. Mountain City, TN 37683- 5000 Asst. Attorney General

450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 DAVID CROCKETT District Attorney General Rt. 19, Box 99 Johnson City, TN 37601

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 O P I N I O N

The petitioner filed his “Mo tion to Dismiss and for

Immediate Release” on September

18, 1996, alleging that his 1990 conviction for aggr avated rapemust be set aside pursuant to

this Court’s opinion i n State v. Roger Dale Hill, Sr. , No. 01C01-9508- CC-00267, Wayne County (Tenn. Crim. Ap p. f iled June 20, 1996, at Nashville). Specifical ly, he claims that the indictment c harging him with a

ggravated rape fails to allege an essential element of the crime

and his conviction must therefore be set aside. The court below treated the petiti oner’s motion as a petition for writ of habeas corpus and denied it on the grounds that it failed to state a basis for relief. The petitioner appeals, claiming that the court below err ed in treat ing his petit ion as one for a writ of habeas corpus and further contending th a t he is entitled to relief under Hill . We affirm the judgmen t below.

The indictment against the petitioner provides tha t he “did unlawfully and feloniously have sexual intercourse with [the vict im], by the use of force and coercion, and did cause bodily injury, in violation of ” T.C.A. § 39-2-6 03. In Hill , the indictment alleged merely that the defendant had “unl awfully sexually penetrate[d] [the victim] a person less than thirteen (13) years of age.” This Court found that the use of the word “unlawfu lly” was not

sufficient to allege the defendant’s mens rea , an essential element of the offense. Accordingly, the indictment was found fatally defective.

The indictment in the petitioner ’s case is significantly different. In addition to alleging that the cr

ime was committed“unlawf ully,” the indictment pr ovides that the defendant committ ed the of fense “feloniously” and “by the use of force and coercion.” As pointed out by the State, Judge Tipton ofthis Cour t has previously c

onsidered1 Und er the reas oning of this cas e, the resu lt wou ld be th e sam e wh ethe r the p etition er’s “m otion ” was treate d as a writ of habe as c orpu s or a s a pe tition fo r pos t-con viction relief. Acc ordin gly, we find it unn ecess ary to addre ss the p etitioner’s co ntention tha t the lower c ourt erred in its characterization of his claim for relief. 3 allegations

similar to those of

the petitioner’s in w

hich the defendant had been charged with “unlawfu lly an d feloniously sexually penetrat[ing] [the vic

tim] by use of force or
coer cion.” See Charles Gates v. State , No. 03C01-9510-CC-00313, Bradley Cou nt y (Tenn. Crim. App. Order filed Aug . 16, 199 6 , at Knoxville). In that case, Judge Tipton ruled as follows:

Historica lly, th e word <

feloniously’ has meant < [p]roceeding from an evil heart or purpos e; done with a deliberate intention of committing a crime.’

As our supreme court has previously noted, < one meaning attached to the word is : “In a legal sense, done with the intent to commit a c rime .” ’ Certain ly, these mental states that are necessarilyinherent in the word < feloniously,’ as recog nized in Tennessee for the better part of t his century, would include a reckless mens r ea, as suc h exists in th e presen t law. An indictment is no less valid for failin g to allege the offense in the words of the statute if it alleges the equivalent to those terms. Thus, the ind ictment, in charging a ggravated rape, was and is jurisdictionally sufficient to support the entryof a judgment of conviction for r ape. . . . Id. (citations omitted). See also State v. John Haws Burrell , No. 03C01-9404-CR-00157, Anderson County (Tenn. Crim. App.filed Feb. 11, 1997, at Knoxville) (in which a panel of this Court adopted with approv al Judge Tipton’s conclusi on thatthe term “feloni ously” necessarilyimplies the mens rea of intentional, knowing or rec kl ess). The sa me reasoning applies in thi s case. This issue is w ithout merit.

The indictment charging the petitioner with agg ravated rape is sufficient on which to base a vali d conviction. The judgment below is therefore affirmed. 1

____________________________________ JOHN H. PEAY, Judge4

CONCUR:

______________________________ DAVID G. HAYES, Jud ge

______________________________ WILLIA M M. BARKER, Judge