# FILED
March 12, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON DECEMBER 1998 SESSION

BILLY JOE HARRIS, * C.C.A. # 02C01-9808-CC-00240

Appellant, * LAKE COUNTY VS. * Hon. R. Lee Moore , Jr., Judge FRED RANEY, WARDEN, * (Habeas Corpus)

Appellee. *

For Appellant : For Appellee : Billy Harris, P ro Se John Knox Walkup NWCX S ite Two Attorney General and Repor ter Route 1, Box 660 Tiptonville, TN 38079 Clinton J. Morgan Counsel for the State 425 Fifth Avenue North Second Floor, Co rdell Hull Building Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P.O. Drawer E Dyersburg, TN 38024

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE1 In 1997, t he petit ioner fi led a petition for writ of habeas corpus, al leging that his conviction for aggravat

ed sexual batt

ery was voi d because the in dictment fai led to al lege the mens rea. The trial court de nied relief an d this cou rt affirme d pursu ant to Ru le 20. Billy Joe Har ris v. State , No. 02C01- 9610-CC-00333 (Tenn. Cri m. App., at Jackson, Feb. 24, 1997).The supreme court denied applicat ion for permission to appeal , concurri ng in results only , on October 12, 1998. The peti tioner presents the same clai m here and it has been pr eviously determined. A petiti oner may not "r elit igat[e] questions pr

eviously determined adversel y to hi m in ... separ

ate habeas corpus cases by courts of com petent juris diction." Myers v. S tate , 462 S.W.2d 265, 269 (Tenn. Cr im. App. 1970) ( citi ng Tenn. Code Ann. § 40 -3811, -3 812); Young v. State , 539 S.W .2d 850 ( Tenn . Crim. A pp. 1976 ). 2 OPINION The petitioner, Billy J oe Harris, filed a habeas cor pus petition alleging that his 1989 conviction for aggravated sexual

battery was voi d for lack of jurisdiction due to a faulty indictment. He also contended that certain of the evidence offered by the state at his trial should have been excluded. Th e trial court concluded the petition as "not [a] proper subject f or habeas corpus relief." In this appeal of right, the singl e issue is whether the judgment was void bec ause of the defective indictment.

We affirm the judgment of the trial court.
The petitioner 1 was convicted of agg ravated sexual battery in 1989. This court affirmed on direct appeal. State v. Billy Harris , No. 4 (Tenn. Crim. App., at Jackson, Aug. 22, 1990). After the grant of an application for permission to appeal, our supreme court affirmed. State v. Harris , 844 S.W.2d 601 (Tenn. 1992).

In his action for habeas corpus relief, the petitioner asser ts that the indictment is fatally defecti ve because it charged onl y that he "did unlawfully and feloniously have unlawful sexual contact with a child under 13 years of age." He claims that no culpable mental s tate was alleged by

the state and that habeas corpus relief was w

arranted by virtue of the holding by a panel of this court in State v. Roger Dale Hill , No. 01C01-9508-CC-00267 ( Tenn. Crim. App., at Nashvi lle, June 20, 1996).3 In State v. Hill , 954 S.W.2d 725 (Ten n. 1997), how ever, the s upreme court reversed the holdi ng in this court, rul ing that "an indictment w hich fails to allege [a] mental state will be sufficient to support ... [a] conviction so long as, [among other things], the mental state can be logically inferred from th e conduct alleged." Id. at 726-27. In Ruff v. State , 978 S.W.2d 95, 96-97 (Tenn. 1998), our supreme court applied the Hill analysis to determine whether a post 1989 Act indictment for aggravat ed sexual battery w

as sufficient. The court held that "th e intentional nature of aggravated sexual battery may be inferred from the con duct alleged in the indictment--unlawful sexual contac t." Id. at 97. This Hill analysis is applicable to pre-1989 Act i ndictments. Dykes v. Compton , 978 S.W.2d 528 (Tenn. 1998). The language of the indic tment challenged here is the same as that in Ruff

. (More recently, our supreme court ruled that mere reference to the statu te allegedly violated will s

erve satisfactory noti ce. State v. Carter , ____ S.W.2d ____ (Tenn. 1999). Here there was no statutory reference.) These holdings by our high court in Hill , Ruff , and Dykescontrol the disposition i n this case. In our vi ew, the indictment satisfies the standard establi shed by the supreme court.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ Thomas T. W oodall, Judge

_____________________________ John Everett Williams, Judge