# FILED
April 9, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

JOHNNY W. BROWN, ) ) Petitioner, ) C. C. A. NO. 02C01-9612-CC-00463 ) vs. ) LAKE COUNTY ) STATE OF TENN ESSEE, ) No. 96-7556 ) 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 und er Rule 20, Rules of the Cour t of Criminal Appeals. The case before this Court repre sents an appeal from the trial co urt’s denial of the petitioner’s petition for w rit of habeas corpus. The recor d was filed on December 17, 1996, and the petitioner was allowed to late-file hi s brief on February 5, 1997. The petitioner was orig inally indicted on one c ount of aggravated rape in February 1985, and was apparently convicted of the same in December 1985. In the prese nt appeal, the petitioner, relyi ng in part upon State v. Roger Dale Hill , No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996), contends the jud gment entered against him is void because the indictment failed to al lege the mens rea of the offense charged.

Having reviewed the state’s motion in light of the petitioner’s response and the entire record on appeal, we conclude that the motion is well-taken and should be granted. The trial judg e dismissed the petitioner’ s petition stating that “[a]llegations concerning the insufficiency of an indictment are not subject t o habeas corpus relief.” It is well established that challenges to the sufficienc y of an indictment cannot be tested in a habeas corpus proceeding

. See Haggard v. State , 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown v. State , 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). A panel of this Court recently held the same in a capital cas e. Barber v. State , No. 01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 199 5).2 Nonetheless, we have considered the substance of the petition er’s claim and determine it to be witho ut merit. Hill represents a direct appeal from a case involving an indi ctment rendered subsequent to the 1989 revisions to the C riminal Code. Conversely, the appeal in the present case s tems from a denial of a petition for writ of habeas corpus and involves an indictment issued prior to the 1989 changes in the Code. The opinion in Hill was based upon this Cour t’s interpretation of T.C.A. § 39- 11-301(c), which w

as enacted in 1989. That statute prov ides, in pertinent part, tha t “[a] culpable mental state is required within this title unless the definition of the offense plainly dispenses w

ith a mental element.” Prior to 1989, however, the C riminal Code did not contain a comparable stat ute. Accordingly, the decision in Hill does not control our review of the iss ue raised herein.

At the time of the offense in this case, ag gravated rape was defined as the “unlawful sexual pene tration of another accompanied” by certain enumerated aggravating ci rcumstances, including that the defendant was aided or abette d by one or more other persons and force or c oercion was used to accompl ish the act. T.C.A. § 39- 2-603 (19 82). The indictme nt at issu e before us charged that the petition er and two others “unlawfully a nd feloniously did have s exual penetration of [the vi ctim], accompanied by the circumst ances that the Defendants were ai ded and abetted by each other and force or coerci on were used to accomplish the act.” This language was sufficient under the law as it existed at the time. As noted above, the Criminal Code did not contain a provision s imilar to § 39-11-301(c) (1989). The statutory r equirements for an indictment were found in § 40- 1802 (now § 40-13-202 (1990) ), which provided 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, 361 (Tenn. 1973) (emphasis supplied), w hile addressing the sufficien cy of an indictment chargi ng the3

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 wit h 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 issue here suff iciently apprised the appellant of the offen se charged under the law at the time, and is therefore valid. Thus, the petition er’s attack must fail.
For the reasons stated above, it is hereby ORDERED, pursuant to Rule 20, Rules of the Court of Criminal Appeals, that the judgme nt of the trial court dismissing the petition for writ of habeas corpus is affirmed. Costs of this appeal shall be assessed against the petitioner.

Enter, this the ___ day of Mar ch, 1997.

__________________________________ DAVID G. HAYES, JUDG E

__________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ PAUL G. SUMMERS, JUD GE