# FILED

May 17, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CR IMINAL APPEALS OF T ENNESSEE

AT KNOXVILLE JANUARY 1999 SESSION

TIM DENTON , * C.C.A. NO. 03C01-9712-CR -00536 APPELLANT, * MORGAN COUNTY VS. * Hon. E. Eugene Eblen STATE OF TENNESSEE , * (Habeas Corpus) APPELLEE. *

For Appellant : For Appellee : Tim Denton, pro se John Knox Walkup M. C. R. C. F. Box 2000 Attorney General and Reporter Wartburg, TN 37887 450 James Robertson Parkwa y Nashville, TN 37243-0493 Ellen Pollack Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493 Frank Harvey Assistant District A

ttorney General P.O. Box 703 Kingston, TN 37763

OPINION FILED: ____________________

AFFIRMED

NORMA MCGEE OGLE, JUD GE2 OPINION The petitioner, Tim Dent on, appeals the Morgan County C riminal Court’s dismissal of his petition for a wr it of habeas corpus. On Nove mber 27, 1989, a Cocke County Grand Jury indicted the appellant for aggr avated rape, armed robbery, and aggravated kidnappi ng, occurring in August of 1989. Following a trial by jury, the Cocke County Criminal Court conv

icted the petitioner of all three offenses and imposed an effecti ve sentence of twenty-two ( 22) years incarceratio n in the Tennessee Department of Correction.

The petitioner filed a pro se petition for a writ of habeas corpus on April 10, 1997. On November 6, 1997, th e Morgan County Crimi nal Court dismissed the petition without appointing c ounsel or conducting an evident iary hearing. The trial court based its summary dismissal of the petition on the decision of our supreme court in State v. Hill , holding that the facts and circumstances of the petitioner’s case fall within the purview

of Hill . 954 S.W.2d 725 (Tenn. 1997).

On appeal, the petitioner presents two issues for our review: (I) whether the trial

court erred by dismis

sing his petition for a writ of habeas corpus without appointing counsel or conducting an evidentiary hear ing; and (II) whether the indictment for aggravated rape, arm ed robbery, and aggravated kidnappi ng in his case was fatally defective for fai lure to allege the requisite mens rea, thereby depriving the c onvicting court of juri sdiction. Following a thorough revi ew of the record, we affir m the judgment of the trial court.3 Analysis The petitioner, citing Tenn. Code Ann. § 8-14-205 and Sup reme Court Rule 13, § 1, argues that he has a constitutional right to c ounsel in habeas corpus proceedings. In addition, the petitioner contends th at the trial court’s summary dismissal of his petition for a writ of habeas c orpus denied him due process of law. However, Tenn. Code Ann. § 29- 21-109 (1980) provides that A [i]f, from the showing of the petitioner, th e plaintiff would not be entitled to any relief, the wr it may be refused...” Moreover, Tenn. Code Ann. § 40-14-204 (1997) provides for appointment of counsel in habeas corpus proceedings only as necessary. Finally, there is no constitutional right to counsel in habeas co rpus proceedings. See Weatherly v. State , 704 S.W.2d 730, 732 (Tenn. Crim. App. 1985). Thus, we have held that when a petition has been competently drafted and concl usively shows that the petitioner is entitled to no relief, the trial c ourt may order the petiti on dismissed without the appointment of couns el and without an evidentiary hearing. Fredrick v. State , 906 S.W.2d 927, 930 (Tenn. Cr im. App. 1993). See also Russell v. Willis , 437 S.W.2d 529, 531 (Tenn. 1969); State ex rel. Byrd v. Bom ar , 381 S.W.2d 280, 282 (Tenn. 1964).

Accordingly, the propriety of the trial court’s summary denial of relief in this case depends upon the meri ts of the petitioner’s cl aim that his convictions for aggravated rape, armed robber y, and aggravated kidnapping are void because the indictment charging those of fenses failed to allege the m ens rea elements of the offenses. We conclude that the indictment was sufficient and the trial cou rt correctly dismissed the petition for habeas corpus relief.4 Initially, the record do

es not contain the count of the in dictment charging armed robbery. Moreover, the record does not contain the judgments of conviction indicating which counts of the five count indictment resulted in convictions. A trial court may dismiss a habeas corpus petition for failure to attach the judgment forms. Tenn. Code. Ann. § 29-21-107 (1980). Notwithsta nding this rule, Acourts may take j udicial notice of...court records in an earlier

proceeding of the same case and the actions of the courts thereon.” Delbridge v. State , 742 S.W.2d 266, 267 (Tenn. 1987). Ad ditionally, the appellate c ourts are authorized to supplement incomplete rec ords by the terms of Tenn. R. App. P. 24(e), and may also consider the contents of their own court records in their consideration of related cases. Accordingly, we will address the merits of the petitioner’s claim.

In State v. Hill , 954 S.W.2d at 726-27, our supr eme court set forth the following standard for r eviewing the sufficiency of an indictment: [F]or offenses which neither expressly require nor plainly dispense with the requirem ent for a culpable mental state, an indictment whic h fails to allege such ment al state will be sufficie nt to support prosecution and conviction for that offense s o long as (1) the language of the indictment is sufficient to meet the const itutional requirements of notice to the accused of the charge against which the accused must defend, adequate basis for entry of a proper judgment, and protecti on from double jeopardy; (2) the form of the indic tment meets the requirements of Tenn. Code. Ann. § 40-13- 202 [which requires that an indictment use “ordinary and concise l anguage”]; and (3) the mental state can be l ogically inferred from the conduct alleged.5 The court concluded in Hill that an indictment for aggr avated rape was sufficient because it satisfied constitutional and statutory requirements, an d “ the act for which the defendant [was] indicted, ‘ unlawful sexual penetrat [ion]’...is committable only if the principal actor’s m ens rea is intentional, kno wing, or reckless. T

hus, the required mental state may be inferred from the nature of the criminal conduct alleged.” Id. at 729.

Turning to the case at hand, the petitioner’s offenses occur red prior to the effective date of the 1989 cr iminal code. The court’ s decision in Hill specifically addressed offenses in the 1989 code for which the statute defini ng the offense omits the required mens rea but does not plainly dispense with a mens rea. For those offenses, the 1989 code provides in a separate statute that intent , knowledge, or recklessness will suffice. Tenn. Code Ann. § 39-11-301 (c) (1997). Accordingly, several opinions of this court declined to apply Hill in the context of pre-1989 offenses, and instead analyzed the sufficiency of the indictment under the law in effect at the time of the offens es. See, e.g., Hughes v. Compton , No. 02C01-9611- CC-00408, 1997 WL 786170, at *1 ( Tenn. Crim. App. at Jack son, December 23, 1997), perm. to appeal denied , (Tenn. 1998); King v. State , No. 01C01-9710-CR00487, 1998 WL 712345, at **2-4 (T enn. Crim. App. at Nashvi lle, October 13, 1998), perm. to appeal denied , (Tenn. 1999); Ali v. State , No. 03C01-9706-CC00207, 1998 WL 166481, at *1 (Tenn. C rim. App. at Knoxville) , perm. to appeal denied , (Tenn. 1998); Orren v. Carlton , No. 03C01-9704-CR-00141, 1998 WL 57551, at **2-3 (Tenn. Cri m. App. at Knoxville), perm. to appeal denied , (Tenn. 1998); O’Quinn v. Carlton , No. 03C01-9703-CR-00084, 1998 WL 47947, at *2 (Tenn. Crim. App. at Knox ville), perm. to appeal denied , (Tenn. 1998); Tomlinson v.6 Carlton , No. 03C01-9610-CR-00389, 1997 WL 604573, at **2-3 (Tenn. C rim. App. at Knoxville, October 2, 1997) , perm. to appeal denied, concurring in results only , (Tenn. 1998).

However, in Dykes v. Compton , 978 S.W.2d 528 (Tenn. 1998), t he supreme court reviewed the sufficiency of an indic tment for aggravated rape pursuant to the Sexual Offenses Law of 1979. Noting that the 1979 s tatute for aggravated rape neither requir ed nor plainly dispensed wi th a culpable mental state, the court ruled that the Hill standard applies to cases unde r the 1979 Act as well as the 1989 Act. Id. at 530. See also, e.g., Harris v. Raney , No. 02C01-9808-CC00240, 1999 WL 134732, at *1 (Tenn. C rim. App. at Jackson, Ma rch 12, 1999). Thus, the Dykes opinion effectively over ruled the cases mentioned abov e to the extent that this court declined to apply Hill to pre-1989 offenses.

Accordingly, we must appl y the Hill standard to the indictment in this case. Count one of the indictm ent alleged aggravated rape. At the time of the offense, aggravated rape was defined, in part, as

unlawful sexual penetration of another accompanied by any of the following circ umstances:... [f]orce or coercion is used to accomplish the act and the defendant is armed with a weapon... Tenn. Code. Ann. § 39-2-603(1982) . The petitioner’s indi ctment contained the followi ng language: that Tim Denton... on ...August, 1989, ...did unlawfu lly,

and feloniously accomplis h unlawful sexual penetrati on of Dorothy E. Essary by the use of force or coercion and at a time when the defendants wer e armed with a ... pistol, and by such violat ed the provisions of T.C.A . 39-2- 603.7 The aggravated rape statute neith er expressly required nor dispensed with a mental state or m ens rea. Nevertheless, r ape was a general intent cri me. Dykes , 978 S.W.2d at 530. n. 2. The i ndictment failed to allege the requirement of a general intent. Yet, in Dykes , the court concluded that an i ndictment which alleged “unlawful sexual penetration” of a child less than thirteen years of age and which included specific refer

ence to the applicable statute pr ovided ample notice to the accused, an adequate basis for ent ry of judgment, and protecti on from reprosecution for the same cr ime. 978 S.W.2d at 530. In Ruff v. State , 978 S.W.2d 95, 97-98 (Tenn. 1998), our sup reme court held that specific reference to the applicable statute provided the defendant with ad equate notice of the offense charged. Accordingly, we conclude that the language of the aggr avated rape indictment, including the reference to the applicable s tatute, satisfied the firs t prong of the Hill analysis.

Moreover, the indictment is concise and understandabl e, and the requisite mental state can be inferred from the conduc t alleged. The court in Dykes noted that a general intent was e asily inferable from the conduct which compris ed the offense of aggravated rape. 978 S.W.2d at 53 0 n. 2. Moreover, in this case, it is difficult to imagi ne a circumstance in whi ch a defendant could sexually pe netrate a victim by the use of force or coerc ion while armed with a deadl y weapon absent an intent to commit the cri me. Ruff , 978 S.W.2d at 100 (the culpabl e mental state was more easily inferable because of the references to force and the use o f a deadly weapon).

Count three of the petitioner’ s indictment charged the off ense of armed8 robbery. At the time of the offense, armed robbery was defined as Athe felonious and forcible taking from the person of another, goods or m oney of any value, by violence or putting the pers on in fear.” Tenn. Code. Ann. § 39-2-501 (1982). The petitioner’s indictment

read: That Tim Denton...on...August, 1989,...did un lawfully, feloniously, and forcibly take from the person of Dor othy E. Essary, by violence or putting that person in fear, the following goods or money app roximately $30.00..., and certain papers and documents. ..Said robbery was accomplished by the use of... a pistol...

The robbery statute neither expressly required nor plainly dispensed with a culpable mental state. Rather, case law provided that robbery was a specific intent crime and require d proof of “the specific i ntent...[to] depriv[e] the owner of the property taken.” Harrell v. State , 593 S.W.2d 664, 671 (Tenn. Cr im. App. 1979). The petitioner’s indictm ent failed to set forth this specific intent. Moreo ver, the indictment failed to cit

e the statute setting forth the o ffense of robbery.

Nevertheless, although the su preme court has noted statutor y citations with approval in determi ning that indictments prov ided adequate notice, we do not believe that citation to the s tatute is the sine qua non of a sufficient indictment. As the supreme court observed i n Hill , 954 S.W.2d at 728 (citation omitted),

we now approach ‘attacks upon indictments, especially of this kind, from the broad and enlightened standpoint of common sense and right reas on rather than from the narrow standpoint of petty pr eciosity, pettifogging, technicality or hair splitting fault finding.’ We conclude that the language of the indictment charging armed robbery, which precisely tracked the l anguage of the statute, provided adequat e notice to the9 petitioner of the offense char ged, a basis for the entry of a judgment, and protection from double jeopardy.

Furthermore, the language of the indictment was concis e and understandable, and the requisit e, specific intent could be logically inferred fr om the allegations contained in the c harge. Similar to the aggr avated rape indictment, the armed robbery indictment alleged that the petitioner f orcibly took property f rom the victim by violence or

placing the victim in fear and while the petitioner was armed with a pistol. Admitted ly, the offense of aggravated r ape only required a general intent, while armed robber y required a specific i ntent to deprive the owner of the property taken. Neverthel ess, we believe that nothing l ess than this specific i ntent could be inferred from the conduct alleged.

We note that, in Ruff , 978 S.W.2d at 100, the supreme court approved an indictment charging the def endant with aiding and abetting an aggravated rape, the offense occurring after the effective date of the 1989 cr iminal code. While the indictment cited the aggrav ated rape statute, the indictm ent did not cite the criminal responsibility statute, which requires that a defendant act A with intent to promote or assist the commissio n of the offense, or to benefit i n the proceeds or results o f the offense ....” Tenn. Code Ann. § 39-11-402 (1997)(emphasis added).

The supreme court in Ruffconcluded its discussio n by stating that, Awhere the constitutional and statutory requirements out lined in Hill are met, an indictment which cites

the pertinent statute and uses i ts language will be suffic ient to support a conviction.” Id. at 100. However, we fail to comprehend how citation to10 the aggravated rape statute in tha t case rendered the specific intent required by the criminal responsibility statute more easily inferable. Once again, we decline to hold that citation to the relevant statute is a prerequisit e to sufficiency of the indi ctment. The language of the indictment i n this case was adequate under the Hill standard.

Count five of the petitioner’ s indictment charged the off ense of aggravated kidnapping. At the ti me of the petitioner’s offen se, an aggravated kidnapping occurred when a

person...unlawfully seizes, confines, inveigles, entices, decoys, abducts, conceals, k idnaps or carries away another with the felonious i ntent to:...[d]etain the other against his will;...w

hen...[the] defendant is armed w ith a deadly weapon. Tenn. Code. Ann. § 39-2-301 (1982) . The petitioner’s indi ctment contained the following language:

that Tim Denton...on...August, 1989,...did unlawfully, and feloniously seize, confi ne, inveigle, entice, decoy,abduct, conceal, kidnap or carry away Dorothy E. Essary, with the felonious intent to detain the said Dorothy E. Essary against her will, and while the said Dorothy E. Essary was secretly confined or unlawfully detained, said secret confinement or unlawful dete ntion was accomplished while the defendants were armed with a...pistol.
In this instance, the statute contained the requisite mens rea , i.e., a defendant must act with the felonious intent to detain another against h er will. The indictment also set forth this required intent. Accordingly, the petitioner’s May 20, 1999 argu ment is without merit.

Because the petitioner cannot pr evail on either procedural or substantive grounds, we affi rm the judgment of the tri al court.11 _________________________ Norma McGee Ogle, Judge CONCUR:

_________________________ James Curwood Witt, J r., Judge

_________________________ John K. Byers, Senior Judge