# FILED
October 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1997 SESSION

MARK L. GR IMES, ) C.C.A. No. 02C01-9610- CC-00337 Appellant, ) ) Lake County V. ) ) Honorable Joe G . Riley, Jr., Judge ) BILLY COMPTON, WARDEN, ) ) (Habeas Corpus-Rape) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Mark L. Grimes, Pro se John Knox Walkup Route 1, Box 330 Attorney General & Reporter Tiptonville, TN 38079-9775 Deborah A. Tullis Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-4351 C. Phillip Bivens District Attorney General P.O. Drawer E Dyersburg, TN 38024

OPINION FILED: ___________________

AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N1 The indictm ent against the appe llant stated: “on July 7, 1992 , in Shelby County, . . . did unlawfully and coerci

vely sexually penetrat e [the victim] in vio lation of Tenn. Code Ann. § 39- 13-503.”

2 For exam ple, State v. Wilson , No. 03C01-9511-CC-00355 (Tenn. Crim. App. at Knoxvill e, filed Mar. 25, 199 7); State v. Burrell , No. 03C01-9404-CR-00157 (Tenn. Crim. App. at Knoxvill e, filed Feb. 11, 1997). -2- The appellant, Mark L. Grimes , pled guilty to rape . He was sentenced to twelve years i ncarceration in the Tennessee D epartment of Correction. He, thereafter, filed a petition for habeas corpus relief. In his peti tion he alleged that the indictment against him w as insufficient for failing to al lege a mens rea . He contends his conviction is void. The trial co urt dismissed the petition fin ding that it was not proper for habeas corpus review. The trial court based this find ing on the fact that the appellant’s conviction was not void on its face and that his sentence had not expired. H e appeals this dismissal. Upon review, w e affirm.

The appellant contends that the indictme nt against him did not sufficiently allege the mens rea for rape. 1 He argues that his conv iction is, therefore, vo id. The appellant bases his contention on State v. Hill , No. 01C01-9508-CC-00267 (Tenn. Crim. App., at Nashv ille, filed June 20, 1996). We note that sev eral panels o f this Cou rt have ref used to f ollow Hill and that it is currently pending review by the Tennes

see Supreme Court. 2

In Tennessee an indictment must (1) inform the defendant of the precise charges; (2) enable the trial court to enter an appropriate judgment and sen tence upon conviction; and (3) protect the defendant against double jeopardy. State v. Trusty , 919 S.W.2d 305, 309 (Tenn. 1996). It must be stated in ordinary and concise language so that a person of common understa nding will know what is intended. Warden v. State , 381 S.W.2d 244 (Tenn. 1964).

The majo rity of thi s panel de clines to follow Hill . We find that the appellant’s indictment sufficient ly alleged the elements of rape and was constitutionally sound. He was fully apprised of the charges against him in ordinary and concise l anguage. The appellant’s ind ictment gave the convi cting-3- court an adequate basis for subj ect matter jurisdiction. Therefore, the appellant’s conviction

is not void and is impr oper for habeas corpus revi ew.
Accordingly, w

e find no error of law mandating reversal. The judgment of the trial court is affirmed.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

__________________________ JOHN H. PEAY, Judge

__________________________ DAVID G. HAYES, Jud ge