# FILED
April 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

JAMES CARR , ) ) Petitioner, ) C. C. A. NO. 02C01-9802-CC-00037 ) vs. ) LAKE COUNTY ) STATE OF TENN ESSEE, ) No. 98-7739 ) Respondent. )

O R D E R

This matter is before the Court u pon the state’s motion to affirm the judgment of the trial court i n accordance with Rule 20, Rules of the Court of Crimi nal Appeals. In January 1984, the petitioner was indic

ted on one count of aggravated rape. The petit ioner w

as subse

quentl y conv

icted of this ch arge an d was sentenced to life imprisonment. The petitioner has since filed a petition for a writ of habeas corpus challenging the sufficiency of the indictment and the jury instruction on reasonable doubt. Th e trial

court d enied re lief.
On appeal, the petitioner argues that the indictment is invalid because it failed to assert an essential element of the o ffense, i.e., the mental state, and that his conviction, ther efore, canno t stand. The pe titioner also con tends that the trial judge provided the jury a defective instruction on r easonable doubt.
At the time of the offense in this case, ag gravated rape was defined as the unlawful sexual penetr ation of another accompanied by sev eral enumerated circumstances, including that force or coercion w as used to accomplish the act and the defendant was armed with a w eapon. T.C.A. § 39-2-603 (1982). The indictment at issue before us charged that the petitioner “did unlawfully, feloniou sly and forceably [sic] sexually pen etrate [the victim], at the time of the said sexual penetr ation he, the said JAMES CARR was armed with a weapon, to-wit, a knife.”2 This language was suffici ent under the law as it ex isted at the time. The statutory requirements

for an indictment were found in § 40-13-202, which prov ided simply that:
The indictment must state the facts const ituting the offense in ordinary and concise l anguage, without prol ixity or repetit ion, in such a manner as to enable a person of common understanding to know what is intended, and with that degr ee of certainty which w ill enable the court, on conviction, to pronounce t he proper judgment.

Furthermore, in Campbell v. State , 491 S.W.2d 359, 36 1 (Tenn. 1973) (emphasis supplied), while addr

essing the sufficiency of an i ndictment charging the offense of murder, our Sup reme Court stat ed the following:

While it seems clear that the indictment i n Witt was insufficient in that it failed to charge an el ement, that the murder was committed unlawfully, in either

the language of the statute or common law or words of equivalent import, the dec ision is confusing because of the language, ‘fatally defective in omitting the charge that the offense was committed feloniously, or wit h malice aforethought; and containi ng no words of equivalent import.’ It is clear, however, that h ad the indictment used the words ‘feloniously’

or ‘unlawfully’

, it would have been sufficient.
We agree with this proposition. B y containing the w

ords found in the language of the statute, the indictment at issue here suff iciently apprised the petitioner of the offense charged under the law at the time, and is therefore val id. See Orren v. State , No. 03C01-9704-CR-00141 (Tenn. Crim. App., Feb. 13, 199 8).

The petitioner also challenges the adequacy of the reasonab le doubt jury instruction. The petitioner, however, has failed to i nclude a copy of the indictment i n the record. T.R.A.P. 24. Accor dingly, the petitioner

has waived the issu e and this Court, therefore, is precluded from conduc ting an adequate revi ew on appeal. See State v. Ballard , 855 S.W.2d 557 (Tenn. 1993). Regardless, thi s is not a proper ground for habeas corpus relief. See Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993) (habeas corpus relief available only when convicting court was without jurisdiction to sentence defendant or defendant's sent ence has expired).3 Accordingly, for the r

easons stated above, is her eby ORDERED that the judgment of the trial court i s affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.

Enter, this the ___ day of Apri l, 1998.

___________________________ PAUL G. SUMMERS, JUD GE

___________________________ JOE B. JONES, PRESIDING JUDGE

___________________________ DAVID G. HAYES, JUDG E