### IN THE SUPREME COURT OF TENNESSEE AT JACKSON DOYLE HART v. STATE OF TEN NESSEE Appeal from the Circuit Court for Lake County No. 95-7588 J. Steven Stafford, Judge

No. W1997-00188-SC-R11-CO - Decided June 22, 2000

FOR PUBLICATION

We gra nted review in this habeas corpus case to determine whether two counts of the i ndictmen t under which Doyle Hart, the appellant, was convi cted are void

for failing to pr

ovide him with sufficient notice of the cri mes char ged. Aft er t hor ough ly reviewing the applicable law, we find that Count1 is not void f

or failing to

allege a culpa

ble mental state. A

dditionally,

Count 2 is valid because the appellant was provided with sufficient notice of the manner in which he committed the offense for which he was charged and because Count 2 complies with the requirements of Tenn. Code Ann. § 40-13-202 (1982). As such, we affirm the Court of Criminal Appeals’s denial of the appellant’s petition for habeas corpus relief.
Tenn. R. App. P. 11 Appeal by Permission from Appellate Court t o Supreme Court; J

udgment of the Court of Criminal Appeals is Affirmed
B IR CH , J., delivered the opinion of the court, in which ANDERSON , C.J., and D ROWOTA , H OLD ER , and B ARKER , JJ., joined. Joseph S. Ozment, Me

mphis, Tennessee

, for the appella

nt, Doyle Hart. Paul G. Summers, Attorney General and Reporter, Michael E. Moore , Solicitor Genera

l, Elizabeth Ryan, Assistant Attorney

General, and C. Ph

illip Bivens, District Attorney General, for the appellee, State of Tennessee.

OPINION
I
We granted review of

this habeas corpus petition to determi ne whether two sp

ecific counts of the indictment under whi ch Doyle Hart, the appellant, was convicted are fatally defective for failing to provide him sufficient notice of the crimes charged.1 The indictments ch arged the appe

llant as follows:
Count 1 THE GRAND JURO RS of GIB S ON County, Te nnessee, duly empaneled

and sworn, upon their oath, present that [the appellant] on divers dates, during a period of time beginn i ng on the 1st day of November, 1989, the exact dat es to the Grand Jurors un known, in Gibson County, Tennessee, and prior to the issuance of t h is indictmentthen and there unlawf ully and feloniously did have unlawful sexual penetration of [the victim], a female child under the age of 13 years, contrary to the Statute and aga inst the peace and dignity of t

he State of Tenne

ssee; Count 2 And the Grand Jurors a

foresaid upon the

ir oaths aforesa

id, p resent further that on the day

s and dates afore

said, and in the af

oresaid Cou nty, and wi thin said jurisdiction, t he aforesaid [ap

pellant] did unlawfully

and feloniously

have carnal knowledge of [the victim], his wi fe’s daughter, contrary to the Statute and against the pea ce an d dignity of the State of Tennessee;
Count 3 And the G rand Jurors aforesaid upon their oaths aforesaid, present further that on divers dates, during a period of time beginning November

1, 1989 and ending on the 3rd day of October, 1990,and in the aforesaid Co

unty, and wit

hin said jurisdiction, and before the f indin gs of this indictment, t he aforesaid [ap

pellant] did unlawf

ully sexually penetrate [the victim], a person less than thirteen (13) years of age, in violation of T.C.A. 39-13-502, all of which is against the peace and dignity of the State of Tennessee;

-2- After thoroughly reviewing the applicable law, we find that Count 1 is not void for failing to allege a culpable mental state. Additionally, Count 2 is valid because the appellant was provided with sufficient notice of the manner in which he committed the offense for which he was charged and because Count 2 complies with the requirements of Tenn. Code Ann. § 40-13-202 (1982). As such, we affirm

the Court of Criminal Appeals’s denial of theappellant’s petition for habeas corpus relief.
II This appeal arises from the petition for habeas corpus relief filed by the appellant. He was indicted in February 1991 for two counts each of aggravated ra

pe and incest; 1 he was convicted byCount 4 And the Grand Jurors aforesaid upon their oaths afor esaid, present further that on the date af

oresaid, and in th

e aforesaid County, and within said jurisdiction, and before the findingof this indictment, the aforesaid [appe

llant] did unlawfully

sexually penetrate [the victim

], a person he knew to be his stepdaug hter, in violation of T.C.A. 39-15- 302, all of which is against the peace and dign ity of the State of Tennessee. -3- a jury of Count 1 (aggravated rape) and Count 2 (incest) and sentenced by the trial court to an effectivesentence of

fifteen years. The judgments wer e affirmed by the

Court of Criminal Ap

peals. See State v. Hart , No. 02-C-01-92 09- CC-00202, 1993 WL 305777 (Tenn. Crim. App. Aug. 11, 1993) pe rm. app. denied (Tenn. Nov. 29, 1993). Subsequently, the appellant filed a petition fo r habeas corpus relief on

January 23, 1997.

The trial court dismis sed the petition; the Court of Criminal Appeals a

ffirmed the dismiss

al.
III
At the outset, we note that we are reviewing a petition for habeas corpus relief and whether to grant the petition i

s a question of law that we review de novo. We are guided by the overarching rulethat habeas corpus relief is available to a defendant only wh

en the judgment is vo

id on its face or the prisoner’s sentence has expired. See Potts v. State , 833 S.W.2d 60, 62 (T enn. 1992). “A voi

d judgmentis one in which the judgment is facially invalid because the court did not have the statutory authority to render such judgment.” Dykes v. Compton , 978 S.W.2d 528, 529 (Te nn. 1998). A valid indictmentis an “essential jurisd ictional element”

to any prosecution; consequently, this Court has held that a defective indictment may deprive a court of jurisdiction. Id. So long as an indictment performs its essential constitutional and statutory purposes, a defect or omission in the language of the indictment will not render the judgment void. See id.
In 1997, this Court established the criteria to determinewhether an indictment performs its essential constitutional and s tatutory purposes. See State v. Hill , 954 S.W.2d 725, 726-27 (Tenn. 1997). In Hill , we held that

for offenses which n

either expressl

y require nor plai

nly dispense

with the requirement for

a culpable menta

l state, an indictme

nt which fails to allege such menta

l state will be su

ffici ent to support prosecution and conviction for that offense so long as (1) the l anguage of the indictment is sufficient to meet the c onstitutional requirements of notice to the accused of the charg e against which the accused must defend, adequate basis for entry of a proper judgment, and protection from double jeopardy;-4- (2) the form of the indictment meets th e requirements

of Tenn. Code Ann. § 40-13-202; and (3) the mental s tate can be logically inferred from the conduct alleged. Id.
IV
We now consider whether, in light of Hill , Count 1 is fatally de fective for fa

iling to provide the appellant with sufficient notice of the crime charged in omitting the requisite mental state. As regards Count 1, Hill

is squarely on point

and strongly suppor

ts the proposition that the appellant rec eived constitutionally sufficient notice. In Hill , the indictment ch arging the defen

dant with aggravated rape stated:

[the defendant] did unlawfully sexu ally penetrate [the victim] a person less than thirteen (13) years of age, in violation of Tennessee Code Annotated 39-13-502, all of wh ich is against the peace and dignity of the State of Tennessee.
Hill , 954 S.W.2d at 727. For purposes of comparison, Count 1 in this case states that

[the defendant] unla

wfully and feloniously

did have unlawful sexual penetration of [the victim], a female child under the age of 13 years, contrary to the Statute and against the peace and dignity of the State of Tennessee . . . . Neither the Hillindictment nor Count 1 allege any culpable mental state; the only difference between the two is that in Hill the applicable statute was numerically referenced, whereas in this case, Count 1 references “the Statute.”
Hill clearly held that an indictment need not specify a culpable mental state as long as “the language of the indictment is sufficient to meet the constitutional requirements of notice to the accused of the charge against which the accused must defend.” Id. at 726. Thus, an indictment is not rendered voi

d for failing to allege a specific mental state as long as it reasonably identifies the nature of the criminal conduct alleged by the State in compliance with Tenn. Code Ann. § 40-13-202 and the requisite

mental state can b

e inferred fro

m the alleged co

nduct.
In reviewing Count 1 in this case, w e note its striking similarity to the indictment we re viewed in Hill

. See id. at 727. As such, we find that the analysis we applied in Hill applies equally in this case. See id. at 72 6-29 (“ Obviously, the act for which the defendant is indicted, ‘unlawfully

sexual penetrat[ing]’ a person under the age of thirteen, i s commit table only if the principal actor’s mens rea is intentional, know ing, or reckle

ss. Thus, the required mental state may-5-

be inferred from the nature of the criminal conduct alleged. ”). Thus, we find that Count 1 now under review is not void for failing to allege a culpable mental state. Having concluded that Cou nt 1 is valid, our review now shifts to a consideration of whether, in light of Hill , Count 2is fatally de fective for fa

iling to provide th

e appellant with

sufficient notice of the crime charged. See State v. Hill , 954 S.W.2d 725 (Tenn. 1997). As regards Count 2, the issue is closer. Hill still applies to excus e Count 2's failure to allege a culpable mental state, but there is an additional factor. Count 2 states that

the aforesaid [a

ppellant] did unlawf

ully and feloniously have carnal knowledge of

[the victim], his

wife’s daughte

r, contrary

to the Statute and against the peace and dignity of the State of Te nnessee . . . . It appears from its l

anguage tha

t Count 2 was an atte

mpt to charge th

e appellant with the crime of incest under

a then recently repealed version of Tennessee’s inc est statute. See Tenn. Code Ann. § 39-4-306(a)(1) (1982) (repealed effective Nov. 1, 1989) (prov iding that “[n]o man s hall marry or have carnal knowledge of his . . . wife’s daughter.”) However, when the offense charged in Count 2 was committed, the crime of incest was punished by a newly enacted incest statute, which provided that (a) A person commits incest who engages in sexual penetration as

definedin § 39-13-501, with a person he or she knows to be, without regard to leg

itimacy: (1) The person’s parent, child, grandparent, grandchild, uncle, aunt, nephew, niece, stepp aren t, stepchild, adoptive parent [or] adoptive child . . . . Tenn. Code Ann. § 39-15-302(a), (a)(1) (Supp. 1989). Thus, instead of properly tracking the new statute’s language and charging that the appellant had engaged in “sexual penetra tion” of the victim, Count2 alleged that the appellant had “carnal knowledge” of the victim. The appellant a rgues that Count2's failure to us

e the statutory

term “sexual penetration” instead of the term actually used-- “carnalknowledge”--

rendered notice

of the charge

against him

under Count 2 insufficient and, for habeas corpus purposes, Count 2 of the indictment void.
In our analysi

s of the appellant

’s argument, we

note th at sexual penetratio n, as defined in Tenn. Code Ann. § 39-13-501, means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body

or of any ob

ject into the genital or anal openin gs of the victim’s, the [appellant’s], or any other person’s body, but emission of semen is not required. . . .” Tenn. Code A nn. § 3 9-13- 501(7 ) (Sup p. 198 9). In comparison, though the term “carnal knowledge” was not statutorily defined in 1989, case law provided that-6- [t]here is ‘carnal knowledge’ or ‘sexual penetration’ in a legal sense if there is the slightest penetration of the sexual organ of the fe male by the sexual organ

of the male. I

t is not necessary that the vagina be entered or that the hymen be ruptured ; the entering of the vulva or labia is sufficie

nt. Walker v. State , 273 S.W.2d 707, 711 (Tenn. 1954) (citations omitted).
A comparison of

the two definitions show

s that though “se

xual penetration”

can encompass various types of penetration , the term “c arnal knowledge” refers to only one ty pe of penetration. Though the indictment

incorrectly charged

the appellant with

carnal knowledg

e of his stepchild,

acts amounting to “carnal knowledge” are included in the definition of “sexual penetration.” As a result, the appellant was provided with specific notice of the manner in which he had committed the offense for which he was charged.
In addition, we find that Count 2 complied with Tenn. Code Ann. § 40-13-202 (1982), which provides that [t]he indictment must state the facts consti tuting the offen se in ordinary and concise

language, wi

thout prolixity

or repetition, in such a manner as to enab

le a person of co

mm on unders tanding to know what is intended, and with that degree of ce

rtainty whic

h will enable the court, on conviction, to pronounce the proper judgment . . . .
Tenn. Code Ann. § 40-13-202 (1982) . In this cas e, Count 2 supplied the appellant with plain, understandable

notice that he wa

s charged with t

he crime of ince

st involving his ste

pchild, in violati on of Tennessee law, during a specified period of time. As such, this Court finds Coun t 2 valid.
V After thoroughly review

ing the applicable

law, we find that Count 1 is not void for failing to allege a culpable mental state. See State v. Hill , 954 S.W.2d 725 (Tenn. 199 7). Additionally, Count 2 is valid because the appellant was provided with sufficient notice of the manner in which he c ommitted the offense for which he was charged and because Count 2 complies wi th th e requirements

of Tenn. Co de Ann. § 40 -13-202 (1982). As such, we affirm the Court of Criminal Appeals’s denial of the appellant’s petition for habeas corpus relief. Costs of this appeal

are taxed to the a

ppellant.