# FILED
March 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

FREDDIE EVERETT RUSSELL , ) ) Petitioner, ) C. C. A. NO. 02C01-9710-CR-00403 ) vs. ) SHELBY COUNTY ) STATE OF TENN ESSEE, ) No. P-17626 ) Respondent. )

O R D E R

This matter is before the Court u pon the state’s motion to affirm the judgment of the trial court i n accordance with Rule 20, Rules of the Court of Crimi nal Appeals. In June 1987, the petiti oner was indicted on one c ount of aggravated rape, one count of incest, and one count of cri me against nature. The petitione r was subsequently convi cted on all three counts. The pet itioner has since filed a petition for a writ of habeas corpus challenging the sufficiency of the indictmen t entered against him. The trial c

ourt den ied rel ief.
On appeal, the petitioner argues that the indictment is invalid because it failed to assert an essential element of the o ffenses, i.e., the mens rea, and that his convictions, therefore, c annot stand.
At the time of the offenses in this case, aggravated rape w as the unlawful sexual penetration of another accompanied b y several enumerated circumstances, including that the vi ctim was less than thir teen years of age. T.C.A. § 39- 2-603 (1982). T.C.A. § 39-4-306 (1982), defining incest, prohibited any man from having carnal knowledge of his daughter, and T.C.A. § 39-4-306 (1982) provided that crimes a gainst nature were punishable by imprisonment in the penitentiar y.
The indictment at issue before us charged that the petitioner “unlawfully1 The decision i n Hill is based upon t he Court’s i nterpretation of T.C.A. § 39-11-3 01, which was ena cted in 198 9. Th at sta tute p rovid es, in pertin ent p art, th at “[a] culpa ble m enta l state is req uired within this t itl e unless the def init ion of th e offense plai nly di spenses with a mentalelement.” Pri or to 1989, however, the

Criminal Code di d not contai n a comparable provi sion. 2 and feloniou sly did have sexual pen etration of [t he victim], a fem ale child under t he age of 13 years,“ ”did unlaw fully and feloniously hav e carnal knowledge of [the victim], the said defendant’s daughter,” and “ did unlawfully and felonious ly violate the law s of nature by performing cunni lingus on [the victi m], and further did violate the laws of nature by having and making [the victim] perform fellatio on the said def endant.”

This language was suffici ent under the law as it ex isted at the time. The statutory requirements

for an indictment were found in § 40-13-202, which prov ided simply that:
The indictment must state the facts const ituting the offense in ordinary and concise l anguage, without prol ixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degr ee of certainty which w ill enable the court, on conviction, to pronounce the proper judgment.

Furthermore, in Campbell v. State , 491 S.W.2d 359, 36 1 (Tenn. 1973) (emphasis supplied), while addr

essing the sufficiency of an i ndictment charging the offense of murder, our Sup reme Court stat ed the following:

While it seems clear that the indictment i n Witt was insufficient in that it failed to charge an el ement, that the murder was committed unlawfully, in either

the language of the statute or common law or words of equivalent import, the dec ision is confusing because of the language, ‘fatally defective in omitting the charge that the offense was committed feloniously, or with malice aforethought; and containi ng no words of equivalent import.’ It is clear, however, that h ad the indictment used the words ‘feloniously’

or ‘unlawfully’

, it would have been sufficient.
We agree with this proposition. B y containing the w

ords found in the language of the statute, the indictment at iss ue here sufficiently apprise d the petitioner of the offenses charged under the law at the time, and is therefore val id.
Although not controlling in the present case, 1 the Supreme Court’s recent3

opinion in State v. Hill , No. 01S01-9701-CC-00005 ( Tenn., Nov. 3, 1997) supports our conclusion. The Court stated that “an indictment nee d not conform to traditionally strict pleading requirements” and that “in modern practice,it is unnecessary to charge guilty knowledge unless it is included in the statutory definition of the off ense.” Moreover, having reviewed the language of the indictment in this case, we find that it would suffice under the Supreme Court’s analy sis of the current statutory requirements of notice and form.
Accordingly, w e find that the indictment at issue meets constitutional and the then-existing statutory requirements, and is therefore valid. It is therefore ORDERED that the judgment o f the trial court is affirmed in accordance with Rule 20 , Rules of the Court of Criminal Appeals.

Enter, this the ___ day of Febr uary, 1998.

___________________________ DAVID G. HAYES, JUDG E

___________________________ PAUL G. SUMMERS, JUD GE

___________________________ JOE G. RILEY, JUDGE