FILED

January 23, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

NOVEMBER 1997 SESSION

PERRY C. RILEY, )

)

Appellant, ) C.C.A. No. 03C01-9705-CR-00181

)

vs. ) MORGAN COUNTY

)

CHARLES JONES, Warden, )

and STATE OF TENNESSEE, ) HON. E. EUGENE EBLEN, JUDGE

)

Appellees. ) (Habeas Corpus)

)

FOR THE APPELLANT: FOR THE APPELLEE:

KENNETH F. IRVINE, JR. JOHN KNOX WALKUP

606 W. Main Street, Suite 350 Attorney General & Reporter

P.O. Box 84

Knoxville, TN 37901-0084 MICHAEL J. FAHEY, II

 Assistant Attorney General

 425 5th Avenue North, 2nd Floor

 Cordell Hull Building

 Nashville, TN 37243

 CHARLES E. HAWK

 District Attorney General

 FRANK HARVEY

 Assistant District Attorney

 P.O. Box 703

 Kingston, TN 37763-0703 

OPINION FILED: _____________

AFFIRMED

CURWOOD WITT, JUDGE
2

OPINION

The petitioner,PerryRiley, appeals the dismissal of his habeas corpus

petition. He stands convicted of one count of aggravated rape and one count of

aggravated sexual battery. In his habeas corpus petition, the petitioner assails the

indictment on the ground that the applicable mens rea elements were not stated,

such that the indictment is defective upon the authority of State v. Roger Dale Hill,

No. 01C01-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20, 1996). We

affirm the dismissal of the petition for habeas corpus relief.

Roger Dale Hill was reversed by our supreme court. State v. Hill, ---

S.W.2d ---, No. O1-S-01-9709-CC-00005 (Tenn. Nov. 3, 1997). In Hill, the

defendant was indicted for aggravated rape upon language virtually identical to

count one in the present case. Our supreme court noted in Hill that the statute

proscribing the offense of aggravated rape “does not require a culpable mental

state, neither does it plainly state that no such mental state is required.” Hill, ---

S.W.2d at ---, slip op. at 2. Recognizing that the Sentencing Reform Act of 1989

provides that a culpable mental state is required to establish an offense unless the

proscribing statute “plainly dispenses with a mental element,” Tenn. Code Ann. §

39-11-301(b)(1991), the court reasoned that the offense of aggravated rape is

committed if the accused acted with either intent, knowledge, or recklessness. Hill,

--- S.W.2d. at ---, slip op. at 2; see Tenn. Code Ann. § 39-11-301(c) (1991). In this

situation, the court held, an indictment which does not state a mental state is still

sufficient if (1) the language meets the constitutional requirements of notice of the

charge, provides an adequate basis for entry of a proper judgment, and protects

against double jeopardy; (2) the form of the indictment satisfies Code section 40-13-

102; and (3) the mental state can be “logically inferred from the conduct alleged.”

Hill, --- S.W.2d at ---, slip op. at 3.
3

In the present case, the petitioner correctly maintains that count one,

at least, of the indictment is indistinguishable from Hill. The mens rea may be

“inferred from the nature of the criminal conduct alleged,” and the other requisites

for sufficiency of the indictment as enumerated in Hill are present. Hill, --- S.W.2d

at ---, slip op. at 9. As to count one, the petitioner’s claim is meritless.

Count two is perhaps deserving of a different analysis. It alleges

aggravated sexual battery under Tennessee Code Annotated section 39-13-

504(a)(4). Although this code section does not explicitly state a required mental

state, it defines aggravated sexual battery as the “unlawful sexual contact” with a

victim committed under certain circumstances (the circumstances applicable in the

present case being that the victim is less than thirteen years of age). Tenn. Code

Ann. § 39-13-504(a) (Supp. 1997). “Sexual contact” is defined to include the

“intentional touching” of the victim. Tenn. Code Ann. § 39-13-501(6)(1991).

Perhaps Hill may be read fairly to apply in this situation, in which case Hill validates

count two as well as count one. See State v. John Claude Wells, III, No. 01C01-

9505-CR-00146, slip op. at 8 (Tenn. Crim. App., Nashville, June 6, 1997) (observing

that Code section 39-13-504 “does not contain a culpable mental state”), pet. for

perm. app. filed (Tenn. Aug. 1, 1997). Regardless, count two is valid under another

theory that this court has utilized in reviewing indictments brought under section 39-

13-504. When the indictment charging an offense of aggravated sexual battery

alleges that the defendant committed an “unlawful sexual contact,” as the indictment

alleges in the present case, “the use of the terms ‘sexual contact’ in the indictment

is the same as if the definition is set forth in full.” John Claude Wells, III, slip op. at

8; see also State v. John James, No. 01C01-9601-CR-00016, slip op. at 19 (Tenn.

Crim. App., Nashville, March 27, 1997). Under this rationale, count two is validly

presented. 

For the foregoing reasons, we affirm the trial court’s dismissal of the
4

habeas corpus petition. 

_______________________

CURWOOD WITT, JUDGE

CONCUR:

___________________________

JOE B. JONES, PRESIDING JUDGE

___________________________

PAUL G. SUMMERS, JUDGE