FILED

March 25, 1998

Cecil Crowson, Jr.

Appe llate Court C lerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JANUARY 1998 SESSION

NELSON B. GRAVES, )

)

Appellant, ) C.C.A. No. 03C01-9705-CR-00171

)

vs. ) Johnson County

)

HOWARD CARLTON, WARDEN, ) Hon. Lynn W. Brown, Judge 

AND STATE OF TENNESSEE, )

) (Habeas Corpus)

Appellees. )

FOR THE APPELLANT: FOR THE APPELLEE:

NELSON B. GRAVES JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

N.E.C.C.

P.O. Box 5000 SANDY COPOUS PATRICK

Mountain City, TN 37683 Assistant Attorney General

2d Floor Cordell Hull Bldg.

425 Fifth Ave. North

Nashville, TN 37243-0943

DAVID E. CROCKETT

District Attorney General

Rt. 19, Box 99

Johnson City, TN 37601

OPINION FILED:__________________

AFFIRMED

CURWOOD WITT, JUDGE
1The indictments included in the record consist of one charge of criminal

conduct in 1977 and five charges of criminal conduct in 1980. Matching the

indictments with the judgment forms attached to the pleadings Graves filed in the

court below, we infer that his complaint relates to four of the indictments for the

1980 crimes.

OPINION

The petitioner, Nelson B. Graves, appeals the Johnson County Criminal Court's

summary denial of his petition for the writ of habeas corpus. According to his petition, Graves is

presently serving an effective 55 year incarcerative sentence following his convictions of three counts

of aggravated rape and one count of aggravated kidnapping. See alsoState v. Nelson B. Graves, No.

744, slip op. at 1 (Tenn. Crim. App., Knoxville, Dec. 10, 1981), perm. app. denied (Tenn. 1982). It

appears that he committed his crimes in 1980.1

 Graves alleges the court below erroneously failed to

issue the writ of habeas corpus, to which he claims entitlement because (1) the district attorney

general's signature is lacking from some of the charging instruments, and (2) the indictments against

him fail to allege a culpable mens rea. Having reviewed the records and the arguments of the

petitioner and the state, we affirm the trial court's dismissal of Graves's petition.

We begin our analysis with recitation of Rule 12(b)(2), Tennessee Rules of Criminal

Procedure. 

Any defense, objection, or request which is capable of determination without the trial

of the general issue may be raised before trial by motion. Motions may be written or

oral at the discretion of the trial judge. The following must be raised prior to trial. 

. . . 

Defenses and objections based on defects in the indictment, presentment or

information (other than that it fails to show jurisdiction in the court or to charge an

offense which objections shall be noticed by the court at any time during the

pendency of the proceedings)[.]

Tenn. R. Crim. P. 12(b)(2). Objections not made in accordance with the time frame of rule 12(b)(2)

are waived. Tenn. R. Crim. P. 12(f).

Theabsence of the attorney general's signature on an indictment is neither necessary

for a showing of jurisdiction nor for the charging of an offense. Thus, under Rule 12(b)(2), an objection

to a defect of this nature must be made pre-trial, and not in a collateral, post-trial habeas corpus
3

petition. John C. Tomlinson v. Howard Carlton, No. 03C01-9610-CR-00389, slip op. at 5 (Tenn. Crim.

App., Knoxville, Oct. 2, 1997), pet. for perm app. filed (Tenn., Oct. 31, 1997); see also State v.

Anthony Nixon, No. 02C01-9612-CC-00484, slip op. at 4 (Tenn. Crim. App., Jackson, Dec. 3, 1997)

(defects "that go to matters of form rather than substance" must be raised pre-trial or they are waived

pursuant to Rule 12), pet. for perm. app. filed (Tenn., Jan. 20, 1998). In his brief, Graves concedes

no such objection was made "during the course of his trial." The issue was waived when it was not

raised pre-trial, and it is not properly before us now.

Graves also claims entitlement to the writ of habeas corpus based upon alleged

deficiencies in the indictments in failing to allege a culpable mental state. He bases his argument on

the provisions of Code sections 39-11-301 and 39-11-302. Those provisions require a culpable

mental state for the commission of a criminal offense and define the four culpable mental states

applicable to violations of the 1989 Criminal Code. He supports his argument by citation to State v.

Roger Dale Hill, Sr., No. 01C01-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20, 1996), rev'd,

954 S.W.2d 725 (Tenn. 1997), and State v. Nathaniel White, No. 03C01-9408-CR-00277 (Tenn. Crim.

App., Knoxville, June 7, 1995).

The fallacy in Graves's argument is that, unlike the defendants inHill andWhite, his

crimes were committed in 1980, long before the enactment of the 1989 Criminal Code. The

touchstone of the now-reversed Hill decision and White is section 39-11-301. SeeRoger Dale Hill,

slip op. at 5 (court of criminal appeals
2The three aggravated rape indictments upon which Graves was

convicted alleged fellatio, cunnilingus, and sexual intercourse, each allegation

being contained in a separate indictment.

4

opinion);Nathaniel White, slip op. at 4. The criminal law at the time of Graves's crimes did not contain

an analogous provision. See, e.g., Carl E. Saine v. Alton Hesson, No. 02C01-9710-CC-00399 (Tenn.

Crim. App., Jackson, Dec. 15, 1997) (Rule 20 Order), pet. for perm. app. filed (Tenn., Dec. 29, 1997);

Harvey Qualls v. Billy Compton, No. 02C01-9610-CC-0331, slip op. at 4, n.2 (Tenn. Crim. App.,

Jackson, Oct. 17, 1997), pet. for perm. app. filed (Tenn., Dec. 16, 1997).

Notwithstanding Graves's reliance on reversed and inapposite authority, we find the

indictments against him sufficient under the applicable law. The aggravated rape indictments allege

in pertinent part,

That Nelson B. Graves heretofore on the 1st day of April, 1980 . . . did unlawfully and

feloniously engage in sexual penetration, to wit: [method of sexual penetration]2

, with

[the victim], a person thirteen (13) years of age, by using force and coercion to

accomplish said act, and did cause personal injury to [the victim], against the peace

and dignity of the State.

At the time of the crimes, aggravated rape was defined in pertinent part as "unlawful sexual

penetration of another accompanied by any of the following circumstances: . . . The actor uses force

or coercion to accomplish the act, and . . . [t]he actor causes personal injury to the victim . . . ." Tenn.

Code Ann. § 39-3703 (Supp. 1979).

The aggravated kidnapping indictment alleges in pertinent part,

That Nelson B. Graves heretofore on the 1st day of April, 1980 . . . did unlawfully and

feloniously seize, confine, inveisle [sic], entice, decoy, abduct, conceal kidnap or

carry away [the victim], and while being so held the said [victim] was the victim of a

felony, to wit: Aggravated Rape, against the peace and dignity of the State.

On the relevant date, aggravated kidnapping was criminalized in pertinent part as
3The Criminal Code also provided that an indictment of a crime

chargeable at common law could "be charged or described substantially at

common law." Tenn. Code Ann. § 40-1805 (1975) (now § 40-13-205).

5

follows:

Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals,

kidnaps or carries away any individual shall be deemed guilty of aggravated

kidnapping when one or more of the following circumstances are present . . . The

victim suffers serious bodily harm or is the victim of any felony committed while being

held . . . .

Tenn. Code Ann. § 39-2603 (Supp. 1980).

A portion of the former Criminal Code relevant to Graves provided that indictments

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 . . . .

Tenn. Code Ann. § 40-1802 (1975) (currently codified at Tenn. Code Ann. § 40-12-202).3 The

indictments in the case at bar closely follow the statutory form of the crimes. Their form is consistent

with the mandate of section 40-1802. Cf., e.g., Carl E. Saine; William Edward Whitt v. State, No.

02C01-9704-CC-00140 (Tenn. Crim. App., Jackson, July 1, 1997) (Rule 20 Order). Thus, we find

them sufficient under the law as it existed at the time.

Graves's final issue alleges constitutional deprivation by the court below in "refusing

to entertain a properly drafted petition with valid issues for review." Because we have found Graves's

substantive issues are not valid bases for granting habeas corpus relief, this argument collapses of

its own weight.

The trial court's dismissal of the meritless petition is affirmed.
6

_______________________________

CURWOOD WITT, JUDGE

CONCUR:

_____________________________

GARY R. WADE, JUDGE

_____________________________

JOSEPH M. TIPTON, JUDGE