1 The petiti oner also cl aims that the t rial j udge erred infindi ng that t he suffici ency of an i ndictment cannot be chall enged in a habeas corpus proceeding. Because we find t he indict ment in thi s case vali d, we n eed not a ddre ss th at cla im. 

# FILED
January 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY 1998 SESSION
ESTES ANDERSON , ) ) Petitioner, ) C. C. A. NO. 02C01-9704-CC-00141 ) vs. ) LAKE COUNTY ) BILLY COMPTON, WARDEN, ) No. 97-7595 ) Respondent. )

O R D E R
On January 3, 1991, the petiti oner was indicted on one c ount of aggravated rape. The peti tioner was subsequentl y convicted of aggr

avated rape and he received a sentence of tw enty years. On Febr

uary 28, 1997, the petitioner filed a petition for a writ of habeas corpus challenging th e sufficiency of the indictment. The trial c ourt den ied rel ief.
On appeal, the petitioner, relying in part upon this Court’s decision in State v. Roger Dale Hill , argues that the indictment is invalid because it failed to assert an essential element of the offense, i.e., th e mens rea, and that his convi ction, therefore, cannot stand. 1 The Supreme Court has since r eleased its opinion in Hill , which controls our r

esolution of the issue at hand.
T.C.A. § 39-11-301(b) prov ides that “[a] culpable mental state is required [to establish an offense] unless the defin ition of an offense plainly dispens es with a mental element.” The statute further s tates that “[i]f the definition of an offense . .

. does not plainly dispense with a mental element, intent, knowledge, or recklessness suffices to establish the culpabl e mental state.” T.C.A. § 39-11- 301(c). In State v. Hill , No. 01S01-9701-CC-00005 (Tenn., Nov. 3, 1997), our Supreme C ourt held that for offenses which neither expressly require nor plainly dispense with the requirement for a2

culpable mental state, an indic tment which fails to allege such mental state will be sufficient to support prosecution and conviction for that offense so l ong as (1) the language of the indi ctment is sufficient to meet the constitutional requirements of notice to the ac cused of the charge against w hich the accused must defend, adequate basis for entry of a proper judgment, and protecti on from double je opardy; (2) the form of the indictment meets the requirements of T.C.A. § 40-13- 202; and (3) the mental state can be log ically inferred from the c onduct alleged. The indictment in the present case charged that the pe titioner “did unlawfully sexually penetrate [the victim], a person, less than thirteen (13) years of age, in violation of Section 39-13- 502 of the Tennessee Code Annotated.” At the time of the offense in this case, aggrav ated rape was defined as the unla wful sexual penetration of a victim by the defendant or the defendant by a victim ac companied by several enumerated aggravating circumstances, includin g that the victim is under the age of thirteen. T.C.A. § 39-13-502 ( 1991).

This statute does not contain a mental state no r does it plainly dispense with one, and the indictment failed to allege either int ent, knowledge, or rec

klessness. Accordingly, in or

der to be sufficient, the mental state must be logically i nferred from the conduct alleged in the indictment. The language of the ind ictment before us is almost identical to the languag e the Supreme Court found valid in the Hill case. As the Supreme Court stated, “[o]bv iously, the act for w

hich the defendant is indicted, ‘unlawfully sexual penetrat[ing]’ a person under the age of thirteen, is committab le only if the principle actor’s mens reais intentional, knowing, or reckless.”

Accordingly, since the mental state can be inferred from the con duct alleged, the indictment in this case is valid. It is therefore ORDERED that the judgment of the trial court is affirmed in accordance with Rule 20 , Rules of the Court of Crimina l Appeals.3 Enter, this the ___ day of Januar y, 1998.

_______________________________ JOE B. JONES, PRESIDING JUDGE
CONCUR:

_____________________________ PAUL G. SUMMERS, JUD GE

_____________________________ DAVID G. HAYES, JUDG E

_____________________________ JOE G. RILEY, JUDGE