FILED

September 28, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

GEORGE A. RUFF ) FOR PUBLICATION

)

Appellant ) FILED: SEPTEMBER 28, 1998 

)

) BLOUNT COUNTY 

v. )

) HON. D. KELLY THOMAS, JR., 

) JUDGE

STATE OF TENNESSEE )

 ) NO. 03-S-01-9711-CC-00140

 Appellee )

AT JACKSON

BILLY JOE SMITH ) 

)

Appellant ) 

)

) UNICOI COUNTY 

v. )

) HON. ARDEN L. HILL, 

) JUDGE

STATE OF TENNESSEE )

 ) NO. 03-S-01-9711-CC-00135

 Appellee )

For Appellant Ruff: For Appellee:

CHRIS RALLS JOHN KNOX WALKUP 

Maryville, TN Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

TIMOTHY F. BEHAN

Assistant Attorney General

Nashville, Tennessee

MICHAEL L. FLYNN

District Attorney General

Maryville, Tennessee

For Appellant Smith: For Appellee:

JOSEPH LIDDELL KIRK JOHN KNOX WALKUP 

Knoxville, Tennessee Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

KATHY MORANTE

Deputy Attorney General

MARVIN E. CLEMENTS, JR.

Assistant Attorney General

Nashville, Tennessee

DAVID E. CROCKETT

District Attorney General

Johnson City, Tennessee

LISA D. NIDIFFER

Assistant District Attorney General

Erwin, Tennessee

STEVEN R. FINNEY

Assistant District Attorney General

Elizabethton, Tennessee

OPINION

AFFIRMED BIRCH, J.
We granted the appellants, George Ruff and Billy Joe

Smith, permission to appeal and consolidated their cases to address

the validity of indictments that failed to charge a specific

culpable mental state. For the reasons set forth herein, under the

controlling case of State v. Hill, 954 S.W.2d 725 (Tenn. 1997), we

hold that the indictments are sufficient. Accordingly, the

convictions resulting from these indictments are valid.

In addition to the above issue, each appellant raises a

separate second issue. Ruff contends that the testimony of a

Department of Human Services (DHS) investigator concerning certain

statements made to her by the victim was inadmissible. We find

that admission of these hearsay statements was error. However, in

light of the strength of the State's proof, this error does not

appear to have affirmatively affected the result of the trial.

Smith challenges the trial court's denial of a motion

requesting an ex parte hearing to establish his particularized need

for access to a psychiatric expert. We find no error. In

consideration of our holdings on these respective issues, the

judgments entered by the trial courts and sustained by the Court of

Criminal Appeals are affirmed.

I

Because the issues before us are questions of law, our

review is de novo. State v. Davis, 940 S.W.2d 558, 561 (Tenn.

1997). First, Ruff contends that the conviction for aggravated

sexual battery is void because the indictment failed to charge a

culpable mental state. This issue was first raised by Ruff in his

application for permission to appeal to the Court under Tenn. R.
1Due to the age of the victim and the nature of the offense, we

identify the victim by initial only. 

3

App. P. 11. Defenses based on defects in the indictment are

usually foreclosed if not raised prior to trial; however, a court

may notice at any time during the pendency of the proceedings the

defense that the indictment fails to show jurisdiction or fails to

charge an offense. Tenn. R. Crim. P. 12(b) and (f). Ruff asserts

that the omission from the indictment of the culpable mental state

deprived the trial court of “an essential jurisdictional element

without which there can be no valid prosecution.”

The indictment against Ruff states:

GEORGE ANTHONY RUFF, on the 27th day of March,

1991, in Blount County, Tennessee, and before

the finding of this indictment, did unlawfully

engage in sexual contact with [A.K.],1 a person

less than thirteen (13) years of age, in

violation of Tennessee Code Annotated, Section

39-13-504, all of which is against the peace

and dignity of the State of Tennessee.

The aggravated sexual battery statute, Tenn. Code Ann. § 39-13-504

(1991), does not describe a culpable mental state. It simply

defines aggravated sexual battery as “unlawful sexual contact”

accompanied by certain aggravating circumstances. However, the

definition of “sexual contact” in Tenn. Code Ann. § 39-13-501(6)

(1991) does describe the culpable mental state:

 (6) “Sexual contact” includes the

intentional touching of the victim’s, the

defendant’s, or any other person’s intimate

parts, or the intentional touching of the

clothing covering the immediate area of the

victim’s, the defendant’s, or any other

person’s intimate parts, if that intentional

touching can be reasonably construed as being

for the purpose of sexual arousal or

gratification; . . . . 
4

Thus, to establish the offense of aggravated sexual battery, the

perpetrator must have acted with intent.

In Hill, a defendant convicted of aggravated rape

insisted that the omission of a culpable mental state from the

indictment rendered his conviction invalid. We rejected Hill’s

argument and established the following rule: 

for offenses which neither expressly require

nor plainly dispense with the requirement for

a culpable mental state, an indictment which

fails to allege such mental state will be

sufficient to support prosecution and

conviction for that offense so long as

(1) the language of the indictment

is sufficient to meet the

constitutional requirements of

notice to the accused of the charge

against which the accused must

defend, adequate basis for entry of

a proper judgment, and protection

from double jeopardy;

(2) the form of the indictment meets

the requirements of Tenn. Code Ann.

§ 40-13-202; and

(3) the mental state can be

logically inferred from the conduct

alleged.

954 S.W.2d at 726-27. 

Like the aggravated rape statute in Hill, the aggravated

sexual battery statute in Ruff’s case does not expressly require a

culpable mental state. Rather, one must ascertain the requisite

mental state by referring to the definitions in Tenn. Code Ann. §

39-13-501, found in the same chapter. The sole distinction in Hill
2Because the statute in Hill neither expressly required nor

plainly dispensed with the requirement of a culpable mental state,

Tenn. Code Ann. § 39-11-301(c)(1991) supplied the requisite mental

state: “intent, knowledge or recklessness.”

3Tennessee Code Annotated § 40-13-202 (1990) provides that an

indictment must:

state the facts constituting the offense in ordinary and

concise language, without prolixity or repetition, in such

a manner as to enable a person of common understanding to

know what is intended, and with that degree of certainty

which will enable the court, on conviction, to pronounce

the proper judgment; . . . . 

5

is the fact that a different provision supplied the mental state.2

This distinction is not pertinent here. Therefore, we find Hill

completely analogous and applicable to the case under submission.

Applying the three prongs of Hill, we first find that the

specific reference to the statute prohibiting aggravated sexual

battery placed Ruff on sufficient notice of the offense with which

he was charged. Likewise, the language of the indictment provided

the trial court with ample information upon which to base a proper

judgment and to protect Ruff from reprosecution for the same

offense. Second, the language was clear and concise. It met the

requirements of form outlined in Tenn. Code Ann. § 40-13-202

(1990).3 Third, in Hill we determined that recklessness,

knowledge, or intent may be inferred from the conduct alleged in

that case--unlawful sexual penetration. Id. at 729. Similarly, we

determine here that the intentional nature of aggravated sexual

battery may be inferred from the conduct alleged in the

indictment--unlawful sexual contact. Therefore, the indictment

against Ruff clearly satisfies the requirements set forth in Hill,

and the conviction based on it is valid.

II
6

Next, we address Ruff's contention that the admission of

the victim’s hearsay statements to the DHS investigator was plain

error requiring a new trial. Juanita Flynn, an investigator for

the DHS, testified as to the details of her interview with the

victim on April 2, 1991. Referring to her notes, Flynn testified

that the victim told her that the defendant had touched her on her

private parts some twenty times. Flynn gave explicit details of

some of the alleged incidents. Ruff’s counsel objected twice to

this testimony, first because Flynn was “testifying from her

notes,” and second because Flynn was describing alleged incidents

of sexual abuse which had not been charged. The trial court

overruled both objections. 

In the Court of Criminal Appeals, Ruff challenged only

the fact that Flynn used her notes to testify. A majority of the

court ruled that Flynn properly referred to the notes, pursuant to

Tenn. R. Evid. 803(5), in order to refresh her memory. Judge Wade

dissented, finding that Flynn’s testimony was inadmissible hearsay

and that its admission was plainly erroneous under Tenn. R. Crim.

P. 52(b). Ruff has now adopted Judge Wade’s position. 

In State v. Livingston, we held that “in cases where the

victim is a child, neither the fact of the complaint nor the

details of the complaint to a third party is admissible under the

fresh-complaint doctrine.” 907 S.W.2d 392, 395 (Tenn. 1995).

Moreover, because a prior complaint constitutes hearsay, it is not

admissible as substantive evidence unless it satisfies some hearsay

exception, and it is not admissible as corroborative evidence

unless it satisfies the prior consistent statement rule. Id. at

395, 398. In this case, the DHS investigator related the victim's
7

statements concerning sexual acts committed upon her by the

defendant. This was hearsay not admissible under any hearsay

exception. Therefore, the admission of Flynn’s testimony was

error. 

The remaining question is whether admission of this

testimony constitutes reversible error. In this case, the jury

heard substantial testimony from both the victim and the victim’s

sister, who witnessed the specific incident for which Ruff was

charged. The victim testified that in late March 1991, Ruff came

into the bedroom where she was in bed with her twelve-year-old

sister. He reached under the covers and touched her on her lower

private parts and her breasts. When the victim’s sister got out of

bed and went into another room, he then got into bed with the

victim and began touching her again. The victim’s sister testified

that she saw Ruff’s hand moving under the covers on her sister.

She knew his hand was underneath the victim’s clothes because she

could hear the panty elastic pop.

Considering this evidence and the entire record, we

cannot find that the admission of the hearsay more probably than

not affected the judgment or would result in prejudice to the

judicial process. Tenn. R. App. P. 36(b). Nor can we find that

the error affirmatively affected the result of the trial on the

merits. Tenn. R. Crim. P. 52(a); Livingston, 907 S.W.2d at 399.

Accordingly, in light of the strength of the State's case against

Ruff, we affirm the judgment of the Court of Criminal Appeals

upholding the conviction. 
4Smith was also charged and convicted of aggravated robbery,

but he has not challenged that count in this appeal.

8

III

We move now to an analysis of the indictments against

Billy Joe Smith charging aggravated kidnaping, two counts of

aggravated rape, and the aiding and abetting of aggravated rape.4

Smith challenged the indictments for the first time in the Court of

Criminal Appeals, where he argued that the indictments were

defective because they omitted the culpable mental state. The

Court of Criminal Appeals found it appropriate to consider the

issue under Tenn. R. App. P. 13(b), which requires sua sponte

consideration of the subject-matter jurisdiction of a trial or

appellate court. The court then rejected Smith’s argument, finding

the convictions valid under Hill, 954 S.W.2d 725.

The indictment charging Smith with aggravated kidnaping

provided:

that BILLY JOE SMITH and TERRY DEAN SNEED, on

or about the 29th day of November, 1992, in

the County [Carter] and State aforesaid, and

before the finding of this Indictment, did

unlawfully remove Karen Rios from her place of

employment, so as to substantialy [sic]

interfere with Karen Rios’ liberty, while the

said BILLY JOE SMITH and TERRY DEAN SNEED were

armed with a deadly weapon, to-wit: a Knife,

in violation of Section 39-13-304 of the

Tennessee Code Annotated, all of which is

against the peace and dignity of the State of

Tennessee.

Unlike the aggravated rape statute in Hill, the aggravated

kidnaping statute, Tenn. Code Ann. § 39-13-304 (1991), refers to a

culpable mental state by defining kidnaping as “false imprisonment,
9

as defined in § 39-13-302,” accompanied by certain aggravating

circumstances. Section 39-13-302 (1991), in turn, defines false

imprisonment as the knowing removal or confinement of another,

unlawfully, so as to interfere with the person’s liberty. We think

that the reasoning in Hill applies with even greater force here

because the mental state was provided by the statute cited in the

indictment, thereby placing Smith on notice that knowledge is an

element of the offense. 

Applying the first Hill prong, we find that both Smith

and the trial court were placed on sufficient notice of the offense

upon which a judgment would be entered. In addition, the language

was ample to provide protection from reprosecution for this same

offense. Under the second Hill prong, we find that the form of the

indictment met the statutory requirements of Tenn. Code Ann. § 40-

13-202. Under the final Hill prong, we conclude that the requisite

mental state, knowledge, is easily inferable from the conduct

alleged in the indictment--the unlawful removal of a person while

armed with a deadly weapon. In short, the language of this count

of the indictment charging aggravated kidnaping was legally

sufficient under the Hill criteria; the judgment of conviction is

valid.

The final Hill issue concerns the validity of the

convictions entered against Smith pursuant to indictments charging

two counts of aggravated rape and one count of aiding and abetting

aggravated rape. The two counts of aggravated rape both provided:

that BILLY JOE SMITH heretofore, to wit, on or

about the 29th day of November, 1992, in the

County aforesaid, and before the finding of

this indictment, did unlawfully sexually
5We note that this name is spelled “Sneed” in the indictment

for aggravated kidnaping. We cannot ascertain the correct spelling.

10

penetrate Karen Rios, by forcing her to have

sexual intercourse with him while the said

BILLY JOE SMITH was armed with a deadly

weapon, to-wit: a knife, and did thereby cause

bodily injury to the said Karen Rios, and

further, the said BILLY JOE SMITH, was aided

or abetted in committing this aggravated rape

of Karen Rios by another person, Terry Dean

Snead,5 contrary to Tennessee Code Annotated,

39-13-502, and against the peace and dignity

of the State of Tennessee.

The indictment for aiding and abetting aggravated rape provided:

that TERRY DEAN SNEAD, on or about the 29th

day of November, 1992, in the County aforesaid

and before the finding of this indictment, did

unlawfully sexually penetrate Karen Rios, by

forcing her to have sexual intercourse with

him while the said TERRY DEAN SNEAD was armed

with a deadly weapon, to-wit: a knife and did

thereby cause bodily injury to the said Karen

Rios, and further, the said TERRY DEAN SNEAD,

was aided and abetted in committing this

aggravated rape of Karen Rios by another

person, Billy Joe Smith, contrary to Tennessee

Code Annotated, 39-13-502, and against the

peace and dignity of the State of Tennessee.

(Emphasis added). Because these counts involve charges of

aggravated rape under the Criminal Sentencing Reform Act of 1989,

our analysis is directly controlled by Hill. 

The indictment in Hill stated that the defendant “did

unlawfully sexually penetrate [the victim] a person less than

thirteen (13) years of age, in violation of Tennessee Code

Annotated 39-13-502, . . . .” We found this language sufficient to

support the indictment and subsequent conviction. Id. at 729.

Here, these three counts expressly refer to Tenn. Code Ann. § 39-

13-502. In addition, the culpable mental state is even more easily
6In State v. Hughes, 212 Tenn. 644, 371 S.W.2d 445 (1963), this

Court upheld the dismissal of an indictment that charged that the

defendant “did drive a motor vehicle upon a public highway of

Davidson County . . . in wilful or wanton disregard for the safety

of persons or property upon said highway, by driving said vehicle to

his left across a yellow stripe in said highway.” Id. at 646, 371

S.W.2d at 446. The Court held that the language of the indictment

failed to charge an offense because it was not always unlawful to

drive to the left of the yellow stripe. Id. at 648, S.W.2d at 447.

The holding was thus even though the statute in question, Tenn. Code

Ann. § 59-858 (1955)(the reckless driving statute), prohibited

driving a motor vehicle in wilful or wanton disregard for the safety

of persons or property. To the extent Hughes can be read to

conflict with the principles of Hill, it is overruled.

11

inferable from the present indictments because of the references to

force and use of a deadly weapon. Consequently, the indictments

charging aggravated rape and the aiding and abetting of aggravated

rape are clearly sufficient, and the judgments of conviction based

upon those indictments are valid.

By this ruling we wish to make clear that the Court has

relaxed the strict pleading requirements of common law.6 As we

noted in Hill, “the purpose for the traditionally strict pleading

requirement was the existence of common law offenses whose elements

were not easily ascertained by reference to a statute. Such common

law offenses no longer exist.” Id. at 728. Thus, where the

constitutional and statutory requirements outlined in Hill are met,

an indictment which cites the pertinent statute and uses its

language will be sufficient to support a conviction.

IV

Finally, we address Smith's contention that the trial

court erred by denying him an ex parte hearing on the issue of his

need for a psychiatric expert. On December 31, 1992, prior to

trial and pursuant to Smith’s motion, the trial court ordered Smith
7On September 9, 1994, Smith apparently filed a motion seeking

an independent psychiatric evaluation. Neither the motion nor the

result of the proceedings on September 9 is in the record, although

the trial court referred to them in a later proceeding. During that

later proceeding, Smith’s counsel told the court he was going to

file a motion for further evaluation. Such motion was actually

filed on January 3, 1995, two days before the trial was scheduled to

begin. 

12

to undergo a mental evaluation at the Watauga Mental Health Center

for the purpose of determining (1) his sanity at the time of the

offense, and (2) his competency to stand trial. Jerry Matthews,

Ph.D., evaluated the defendant for the Watauga Mental Health

Center. He recommended further evaluation at Middle Tennessee

Mental Health Institute (MTMHI). The staff at MTMHI observed and

examined Smith between March 31, 1993,and April 29, 1993. They

concluded that Smith was competent to stand trial and sane at the

time of the offenses. Their report noted their conclusions that

Smith malingered and attempted to give an impression that he was

mentally ill.

In August 1994 another staff member from the Watauga

Mental Health Center, Richard Kirk, examined Smith at the Unicoi

County Jail. Kirk had access to the report from MTMHI at the time

he examined the defendant. He concurred in MTMHI's findings and

concluded that Smith was malingering.

Two days before trial was to begin, Smith’s counsel filed

a motion requesting an independent psychiatric evaluation.7 In the

motion, counsel alleged that the initial report from Matthews was

evidence that sanity was a significant factor in Smith’s defense.

He sought funds to employ an independent psychiatrist to conduct an

examination and to assist in the evaluation, preparation, and

presentation of the defense of insanity. The motion was heard and
8Tenn. Code Ann. §40-14-207(b) (Supp. 1994) provides in part:

(b) In capital cases where the defendant has

been found to be indigent by the court of

record having jurisdiction of the case, such

court in an ex parte hearing may in its

discretion determine that investigative or

expert services or other similar services are

necessary to ensure that the constitutional

rights of the defendant are properly protected.

13

denied on the first day of trial. The trial court denied the

motion on the grounds that Tenn. Code Ann. § 40-14-207 (Supp.

1994),8 governing expert services in capital cases, applied to

capital cases only. Further, the court noted that Smith had

already been evaluated and was found competent to stand trial and

sane when the offenses were committed.

In State v. Barnett, 909 S.W.2d 423 (Tenn. 1995), this

Court held that due process may require the provision of expert

assistance to an indigent defendant in a non-capital case. In

Barnett, we established the standard for ascertaining when such

assistance is necessary. First, we determined when an ex parte

hearing is required on the issue of expert assistance: “when an

indigent defendant, in a written sealed motion to the trial court

alleges particular facts and circumstances that raise the question

of the defendant’s sanity.” Id. at 429-30. Next, we determined

when a state-funded psychiatric expert is required: 

[B]efore an indigent defendant is entitled to

the assistance of a state-funded psychiatric

expert, the defendant must make a threshold

showing of particularized need. To establish

particularized need, the defendant must show

that a psychiatric expert is necessary to

protect his right to a fair trial.

Unsupported assertions that a psychiatric

expert is necessary to counter the State's

proof are not sufficient. The defendant must
14

demonstrate by reference to the facts and

circumstances of his particular case that

appointment of a psychiatric expert is

necessary to insure a fair trial. Whether or

not a defendant has made the threshold showing

is to be determined on a case-by-case basis,

and in determining whether a particularized

need has been established, a trial court

should consider all facts and circumstances

known to it at the time the motion for expert

assistance is made. 

Id. at 431. Absent an abuse of discretion, the trial court’s

ruling on the necessity for an expert will be upheld. Id. 

Applying the foregoing to this case, we agree with the

Court of Criminal Appeals that the trial court did not abuse its

discretion in denying Smith’s request for appointment of a

psychiatric expert. Like the defendant in Barnett, Smith had

already received a full psychiatric evaluation at State expense.

Apparently, his dissatisfaction with the results of that evaluation

prompted him to request another evaluation. However, he has failed

to make the required threshold showing of particularized need for

the additional psychiatric assistance he sought. Smith’s counsel

did not advise the trial court of any evidence he planned to adduce

from Smith’s family, nor did he articulate any other particularized

need for another evaluation. As the Court of Criminal Appeals

explained, he simply argued that the MTMHI’s reports were

inconsistent and invalid, and that he needed another evaluation in

order to determine if the tests given by MTMHI were valid.

Courts are not required to find the defendant an expert

who will support his theory of the case. See Ake v. Oklahoma, 470

U.S. 68, 83, 105 S. Ct. 1087, 1096, 84 L. Ed.2d 53, 66 (1985);

Barnett, 909 S.W.2d at 431. This is apparently what Smith is
9We note that, in the Court of Criminal Appeals, Smith

challenged the denial of his motion for an independent psychiatric

evaluation. Before this Court, however, he challenges the lack of

an ex parte hearing regarding the need for an evaluation, citing

Barnett as support. Because Smith’s trial was held in January 1995,

and Barnett was not published until November 1995, neither Smith nor

the trial court had the benefit of its guidance. It is not

surprising, then, that Smith did not request an ex parte hearing, as

required by Barnett, until he made his application to appeal to this

Court. We find that the ultimate issue is whether Smith showed a

particularized need for a psychiatric expert. He failed to do so.

This question having been decided to his detriment, the preliminary

issue of denial of an ex parte hearing is of no consequence. 

15

attempting to accomplish. Accordingly, based on the facts and

circumstances before it, the trial court did not err in denying

Smith’s motion for expert assistance.9

In conclusion, the indictments in these cases are

sufficient, and the convictions based thereon are valid. Moreover,

there is no merit to the secondary evidentiary and procedural

issues raised by the appellants. The judgments of conviction

entered against both appellants are accordingly affirmed. 

_________________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, Holder, JJ.

Reid, J., not participating