# FILED
January 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE CRIMINA

L COURT OF A PPEALS OF TENN ESSEE 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 APPE LLANT: FOR THE APPELLEE: KENNETH F. IRVINE, JR. JOHN KNOX WALKUP 606 W. Main Street, Suite 350 Attorney General & R eporter P.O. Box 84 Knoxville, TN 37901-008 4 MICHAEL J. FAHEY , II

Assistant Attorney

General 425 5th Avenue North, 2nd Floor Cordell Hull Bui lding Nashville, TN 37243 CH AR LE S E . H AWK District Attorney

General FRANK HARVEY Assistant D istrict Attorney P.O. Box 703 Kingston, TN 37763-0703

OPINION FILED: _____________

AFFIRMED
CURWOOD WITT, JUDGE2 OPINION

The petitioner , Perry Rile y, appeals the dismissal of his habeas corpus petition. He stands convicted of one c ount of aggravated rape and o ne count of aggravated sexual battery. In his habeas corpus petiti on, the petitioner assails the indictment

on the ground that the applicable mens rea elements were not stated, such that the indictme nt is def ective upon the authority of State v. Roger Dale Hill , No. 0 1C01- 95 08 -C C- 00 26 7 ( Te nn . C ri m. Ap p. , N as hv il le , J un e 2 0, 19 96 ). We affirm th e dismis

sal of th e petiti on for habeas cor pus rel ief.
Roger Dale Hill was reversed by our supreme

court. State v. Hill , --- S.W.2d ---, No. O1 -S-01-97 09-CC-00 005 (Ten n. Nov. 3, 1997 ). In Hill , the defe ndan t was indicted for agg ravated rape upon languag e virtually ident ical to count one in the present case. Our supreme court noted in Hill that the statute proscribingthe offense of aggravated rape “ does not r e quire 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 19 8 9 providesthat a culpable mental state is required to es tablish an offense unless the proscribingstatute “plainly dis penses with a mental element,” Tenn. Code Ann. § 39-11-301(b)(1991), the court reason ed 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
s itua tion, the court held, an indictment which does not state a mental state is still sufficient if (1) the language meets the constitutional requirements of no tice of the
c harge, provides an adequate basis for entry of a proper judgment, and protect s against double jeopardy; (2) the form of the indictment satisfies Code section 40-13- 102; and (3) the mental state can be “logically i nferred from the conduct alleged.” Hill , --- S.W.2d at ---, slip op. at 3.3 In the present

case, the petitioner correctl y maintains that count

one, at least, of the indictment i s indistin guishable fr om Hill . The mens rea may be “inferred from the nature of the criminal conduc t alleged,” and the other requisites forsufficiency of the indictment as e numerated 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 dese r ving of a different analysi s. It alleges aggravat ed sexual battery under Tennes see Code Annotated section 39-13- 5 04(a)(4). Although this cod e section does n ot explicitly state a requ ired menta l state, it d efines agg ravated sexual battery as the “unlawful sexual contact” with a victim committed under certain cir cumstances (the circumstance s applicable in the presentcase being that th e victim is less than

thirteen years of age).Tenn. Code Ann. § 39-13-504(a) (Supp. 1997). “Sexua l conta ct” 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
cou nt 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., Nashvil le, June 6, 1997) (observ ing that Co de section 39-13-504 “does not contain a culpable mental state” ), pet . fo r perm. app. filed (Tenn. Aug. 1, 1997). Regardl ess, count two is v alid under another theory that this court has utili zed in reviewi ng indictments brought under section 39- 13-504. When the indictment char gi ng an offense of aggravated sexual battery allegesthat the defendant committed an “unla wful sexual contact,” as the indictment allegesin the present

case, “the use of

the terms ‘sexual contac t’ 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, Mar ch 27, 1997). Under thi s rationale, count two is validly presented.

For

the fore going reas ons, we affirm the trial court’s dismissal of the4

habeas corpus petition.

_______________________ CURWOOD WITT, JUDGE
CONCUR:

___________________________ JOE B. JONES, PRESIDING JUDGE

___________________________ PAUL G. SUMMERS, JUD GE