IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

JAMES W. MA

SSENGALE, ) ) Petitioner, ) C. C. A. NO. 02C01-9702-CR-00068 ) vs. ) SHELBY COUNTY ) STATE OF TENN ESSEE, ) No. P-17673 ) 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 und er Rule 20, Rules of the Cour t of Criminal Appeals. The case before this Court repre sents an appeal from the trial co urt’s dismissal of the petitioner’s petition for w rit of habeas corpus. The recor d was filed on February 19, 1997, and the petitioner filed his brief on March 13, 1 997. The petitioner was originally indicted on one count each of agg ravated rape and armed robber y in June 1981, and was subsequently found g uilty of the same in October 1981. In the present appeal, the petitioner, relying

in part upon State v. Roger Dale Hill , No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996), contends the jud gment entered against him is void because the indictment failed to al lege the mens rea of the offense charged.

Having reviewed the state’s motion in light of the petitioner’s response and the entire record on appeal, we conclude that the motion is well-taken and should be granted. It is wel l established that challeng es to the sufficiency of an indict ment cannot be tested in a habeas corpus proceeding. See Haggard v. State , 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown v. State , 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). A panel of this Court recently held the same in a capital case. Barber v. State , No. 01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 199 5).

Nonetheless, we have considered the substance of the petition er’s claim2

and determine it to be witho ut merit. Hill represents a direct appeal from a case involving an indi ctment rendered subsequent to the 1989 revisions to the C riminal Code. Conversely, the appeal in the present case s tems from a denial of a petition for writ of habeas corpus and involves an indictment issued prior to the 1989 changes in the Code. The opinion in Hill was based upon this Cour t’s interpretation of T.C.A. § 39- 11-301(c), which w

as enacted in 1989. That statute prov ides, in pertinent part, tha t “[a] culpable mental state is required within this title unless the definition of the offense plainly dispenses w

ith a mental element.” Prior to 1989, however, the C riminal Code did not contain a comparable stat ute. Accordingly, the decision in Hill does not control our review of the iss ue raised herein.

At the time of the offense in this case, ag gravated rape was defined as the “unlawful sexual pene tration of another accompanied” by certain enumerated aggravating ci rcumstances, including that force or coercion is us ed to accomplish the act and the defendant is armed with a weapon or that the defendant causes personal injury to the vic

tim. T.C.A. § 39-2-603 (1982). Robbery was defined as “the felonious and forcible taking from the per son of another, goods or money of any value, by violence or putting the person in fear.” T.C.A. § 39- 2-501(a) (1982).

The indictments at issue before us charged that the petitioner “did unlawfully and feloniously engage in sexual penetration . . . [with the victim] by the use of weapons, t

o-wit: a s hotgun and a p istol, and d id thereby force or coer

ce [the vic

tim] to submit to sexual penetrat ion . . and cause personal inj uries to the said [vic tim],” and “did unlawfully, feloni ously and forcibly tak e from the person [of the victim money of value], with the int

ent to convert the same to thei r own use and to depriv e the true owner thereof, by the use of force and violence, by the use of da ngerous and deadly weapons . . . or by putting the [victim] in fear of bodily injury.”

This language was suffici ent under the law as it ex isted at the time. As noted above, the Criminal Code did not contain a provision similar to § 39-11-301(c)3

(1989). T he statu tory requir ements f or an indi ctment we re found in § 40-18 02 (now § 40-13-202 (1990)), whi ch provided 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 indi ctment at issue here sufficiently apprised the appellant of the offense charged under the law at the time, and is therefore v alid. Thus, the petitioner’s attack must fail.

For the reasons stated above, it is hereby ORDERED, pursuant to Rule 20, Rules of the Court of Criminal Appeals, that the judgme nt of the trial court dismissing the petition for writ of habeas corpus is affirmed. Costs of this appeal shall be assessed against the petitioner.

Enter, this the ___ day of May , 1997.

__________________________________ PAUL G. SUMMERS, JUD GE4 __________________________________ DAVID G. HAYES, JUDG E

__________________________________ JOE G. RILEY, JUDGE