# FILED

October 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY SESSION, 1998

DANNY R. KING, ) ) No. 01C01-9710-CR-00487 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. Thomas H. Shriver, Judge STATE OF TENN ESSEE, ) ) (Writ of Habeas Corp us) Appellee )

For the Appellant : For the Appellee : Dwight E. Scott John Knox Walkup 4024 Colorado Avenue Attorney General and Repor ter Nashville, TN 37209 Lisa A. Naylor Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493

OPINION FILED:

AFFIRMED

David G. Hay

es Judge1 The appellant’s conviction stems from the “overwhelming evidence” in the No vember 1981 abduction a nd rape of Bett y Hoover. He and h is co-defendant , William D. Buford , were sentenced to t

wo concurrent l ife sentence s. Their convictions were af firmed on appeal t

o this court. See State v. Buford , No. 83-1 13-III, (Te nn. Crim . App. at N ashville, Fe b. 29, 198 4), perm
. to appeal deni ed , (Tenn. Apri l 30, 1984) . This court also deniedthe appell ant’s post-convict ion relief. See State v. King , No. 02C 01-951 0-CC -00327 (Tenn . Crim. A pp. at Na shville, Sep t. 30, 1996). 2 OPINION

The appellant, Danny R. King, appeals the Davidson County Criminal Court’s dismissal of his petition for writ of habeas corpus. The app ellant was originally indicted by the Williamson County G rand Jury for aggrav ated rape and aggravated kidnapping. On December 20, 1982, he was convicted o f both counts and received two concurrent life sentences. 1 He filed a pro se petition for writ of habeas corpus in January 1997, which w as subsequently amended after c ounsel was appointed. Thereafter, appellant’s counsel filed a seco nd amended petition. The trial court dismissed the appellant’s petition finding the challenges to the indictment were waived under Tenn. R. C rim. P. 12(b)(2) and (f) and pre-1989 offenses were not determined according to State v. Hill , 954 S.W.2d 725 (Te nn. 1997). The trial court also found the jury instru ction was still v alid law in Tennessee. The appe llant presents four issues for our r eview: 1)whether he waiv

ed his right to object t

o the sufficiency of the indictment pursuant to Rule 12,Tenn. R. Crim. P.; 2)whether the indictment w as fatally defective for failur e to allege the requisite mens rea

depriving the sentenci ng court of jurisdicti on; 3)whether the indictment was fatally defective in that it was unconstitutionally v

ague and did not adequately apprise the appellant of his charges against w hich he had to defend; 4)whether the jury charge concerning rea sonable doubt was constitutionally defectiv e inasmuch as it requir ed a lower burden of proof than what is constitutionally required

.2 We note various panels of this court

have held t he suffici ency of the indict ment cannot be reviewed in habeas corpus proceedings under Hagg ard v. State , 475 S.W.2d 186, 187-88 ( Tenn. Crim. App. 1971) and Brown v. State , 445 S.W .2d 669, 6 74 (Te nn. Crim . App. 196 9), cert. deni ed , (Tenn . 1969). H oweve r, Haggard and Brown did no t involv e cha llenge s reg ardin g the cour t’s subject matter jurisdi ction or whether the i ndictment fai led to st ate an offense.Other chall enges related t o form and not substance i n the indi ctment are waived unless rai sed prior t o trial . Tenn. R. Crim . P. 12(b)(2 ); see State v. Nixon , No. 02C01-9612-CC-00484 ( Tenn. Crim. App. at Jack son, De c. 3, 1997 ), perm. to appeal de nied , (Tenn . 1998); T enn. Co de Ann . § 40-13 -203, - 207, -20 8 (1990 ). 3 ANAL YSIS

I. Grounds for Habea s Corpus Relief The trial court found the appellant had waived his rig ht to challenge the sufficiency of the indictment purs uant to Rule 12, Tenn. R. Crim.P. We disagree. Tennessee law is well -established that habeas corpu s relief is only av ailable when a conviction is voi d because the convicting court was without jurisdiction or authori ty to sentence a defendant, or that a defendant’s s entence has expired and the peti tioner is being illegall

y restrained. Archer v. State , 851 S.W.2d 157, 16 4 (Tenn. 1993); Passarella v. State , 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). In Orren v. State , No. 03C01-9704-CR-00141 (Tenn. Crim. App. at Knoxville, Feb. 13, 1998), this court held, in a habeas corpus proceeding, the v alidity of an indictment may be challenged if it fails to pr operly charge an offense or the convicting court was without jurisdiction. 2 The trial court lacks the jurisdiction necessar y to proceed when mens

rea is an essential element to an offense and the requisite mens rea cannot be fairly imported from the language of the char ging instrument. See State v. Hill , 954 S.W.2d 725 (Tenn. 1997); State v. Marshall , 870 S.W.2d 532, 537 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1993). Therefore, since the appellant challenges the indictment for failure to state the requis ite mens rea and failure to properly charge an offense, w e will address each i n turn.

II. Sufficiency of the Indictment The first step in determining whether an indictment fails to cha rge an offense3 Although Hill is not controlling authority for pre-1989 offenses, its principles are applicabl e. A post-1989 i ndictment is suffici ent if:(a) the l anguage satisf ies the const itutional requirement of notice to t he accused, (b) i ts form meets the requi rement set fort h in Tenn. Code Ann. § 40-13-202 ( Supp. 1996), and(c) the re quisite mental state can be logica lly inferre d from the alleged condu ct. Hill , 954 S.W.2d at 726-27. If the st atute creat

es an offense, the indictment mus t charge the facts and circu msta nces w hich con stitute the of fense m entioned in the statute

. Hill , 954 S.W .2d at 729 ; see also Cam pbell v. State , 491 S.W .2d 359, 361 (Tenn. 1973 ).

4 See Tenn. Code Ann. § 40-1702 ( 1975) (“Wherever in t his Code ‘i ndictment’ is used, the sam e shall be ta ken to inc lude pres entm ent whe never the contex t so requ ires or will perm it.”); see also Tenn. Code A nn. § 40-13-101(b) (1995). 4 because of the omission of the requi red mental state is to establish whether the crime occurred before or after the adoption of the new criminal code, i.e. , November 1, 1989. Those offenses occurring afte r the enactment of the current code are governed b y Hill , 954 S.W.2d at 725. 3 Those offenses occurring prior to November 1, 1989, require a different analy sis than that suggested by the appellant. Under the pre-1989 Criminal Code, th e required mens rea of the crime was often included in the statutory definition of the particular off ense; however, numerous statutory offenses contained no defined mental state. Therefor e, the court must review the indictment to determine wheth er the challenged indictment tracks the language of the statutory offense charged. “Recitation of the statutory language gives r

ise to the presumption that the indictment s ufficiently apprises the defendant of the mental state required.” Orren , No. 03C01-970 4-CR-00141 (citin g Campbell v. State , 491 S.W.2d 359, 361 (T enn. 1973)). Even if the language of the statute is not strictly pursued, the indictment remains sufficien t if words of equivalent import or more comprehensive import are us ed. Campbell , 491 S.W.2d at 361.

A. Aggravated Rape The presentment 4 in the case at bar for count one c harged that the appellant: “unlawfully and felonious ly did accomplish and ai d and abet in the accomplishment of unlaw ful sexual penetration, as defined in Tennessee C ode Annotated, § 39-3702, of another, Mrs. Betty Hoover, accompanied by the following circums

tances. The defendants caused personal injury to the victim; the defendants wer e aided and abetted by each other and force or coercion was used to accomplish the act . . .”
At the time of the offense in this case, aggravated rape was defined as5 See Moriss ette , 342 U.S . at 263, 72 S.Ct. at 25 1; United Stat es v. Gypsum Co. , 438 U.S. 422, 437 , 98 S.Ct. 2 864, 287 3 (1978 ).

6 We note that the offense in the pr esent case is aggr

avated rape and not

rape. Our supreme court has recogni zed that the offense of aggr avated rape i s but an aggravat ed form of the com mon law offen se of rap e. Wilkins , 655 S.W .2d at 916

. 5 “unlawful sexual penetr ation of another accompanied by any of the following circumstances” includi ng causing personal i njury to the victi m and aiding and abetting by one or more per sons when force is used to ac complish the act. Tenn. Code Ann. § 39-3703 (a) (2) (3) (A) (Supp. 1981).

In Morissette v. Unit

ed States , 342 U.S. 246, 263, 72 S.Ct. 240, 251(1952), the Supr eme Cour t applied common l aw mens rea to statutory crimes. For those crimes originating

at common law, an interpretive presumption exis ts that a mens

rea is required. Id. Hence, statutory cri mes originating from common l aw that expressly omit sci enter in their definition appl y the mens rea for the offense that existed un der comm on law. 5 The statutor y offense of ag gravated rape is a cr ime originating from common law

. See State v. Wilkins , 655 S.W.2d 914, 916 (Tenn. 1983) (defining common law r ape as “the unlawful carnal knowledge of a woman over the age of ten years forcibly and without her consent, or, as otherwise expressed, by force, or forcibly and against her will, or such knowledge of a female child under the age of ten years either with or without her consent.”). 6 Rape was a general intent crime at c ommon law. See 75 CJS Rape § 9 (1952). Accordingl y, no intent is required other

than that evidenced by the doing of the acts constituting the offense. Id. ; see also Orren No. 03C01-9704-CR-00141; Wilkins , 655 S.W.2d at 916.

Therefore, for the presentment to be sufficient in the present count, it need only charge the accused unlawfully sexual ly penetrated a victi m and force or coercion is used to accomplish the act and the defendant is aided and abetted by one other person. We conclude the language of c ount one of the challenged presentment tracks the lang uage of the statute and sufficiently informed the6

accused of the charge against him.

B. Aggravated Kidnapping Requiring a somewh at different analysis, we turn to the presentment on count two which includes

the required mens rea under the law at the time c harging the appellant: “unlawfully and felonious ly did seize, confine,abduct, conceal, and kidnap another, Mrs. Betty Hoover, with the felonious intent to detain her against her will when the person secretly confined and unlawfully detained was the victi m of a felony, Aggravated R ape, or any lesser included felony thereof committed on her person during and secr et confinement and unlawful detention . . . .”
On the relevant date, agg ravated kidnapping w as defined in pertinent part as follows: (a) Any person who unlawfully seizes, confines, inveigles, entices, decoys, abducts, conceals,kidnaps or carries aw ay another with the felonious intent to: (1) Cause the other to be secretly confine d against his will; or (2)

Detain the other against h is will; . . . shall be guilty of aggravated kidnaping

when one or more of the follow ing circumstances are present:(C) The person ... [u]nlaw fully detained ... is the victim of any felony committed on his person during the . . . unlawful detention . . . Tenn. Code Ann. § 39-2603 (Supp. 1981).
The language was sufficient u nder the law as it ex isted at the time pursuant to the statutory requi rements for an indictment whi ch provided: The indictment must state the facts const ituting the offense in ordinary and concise language, w ithout prolixity or repetition, in such a manner as to enable a person of common understa nding to know what is intended, and with that degr ee of certainty which w ill enable the court, on conviction, to pronounce the proper judgment. Tenn. Code Ann. § 40-1802 (1975) (now Tenn. Code Ann. § 40-12-202) . Additionally, in Campbell , 491 S.W.2d at 361, th e court stated, “[I]t is clear, however, that had the indictment used the words ‘feloniously’ or ‘unlawfully,’ it would have been sufficient.” By i ncorporating the wor ds found in the language of the statute, i.e. , unlawfully and feloniousl y, the presentment sufficiently apprised of the requisite mens rea

under the law at th e time for coun t two, aggravated kidn apping.

III. Failure to Properly Charge7 The appellant avers the prese ntment was fatally defectiv e in its failure to apprise him of the offenses to defend. Specifical ly, he argues the pres entment alleges the appellant only violated a statutory definition and not an indictable offense. He also argues count one did not contain the words “ Aggravated Rape” nor did it refer to Tenn. Code Ann. § 39- 3703, the aggravated rape statute. Furthermore, he presents the s ame argument for count two not us ing the words “Aggravated Kidnappi ng” nor referring to the appropriate code section. See Tenn. Code Ann. § 39-2603. Alternati vely, the State responds that the presentment was sufficient citing State v. John Haws Burrell , No. 03C01-9404-CR-00 157 (Tenn. Cr im. App. at Knoxville, F

eb. 11, 1997), perm. to appeal denied , (Tenn. 1997), and Tenn. Code Ann. § 40-13-202. The state ar gues the reverse sid e of each count of the presentment contains the listed offe nses.

The body of the presentment itself w as sufficient to apprise the appell ant of the charge to which he was to defend. It sets forth “u nlawful sexual penetration” of the victim in count one and “ abducts,. . ., kidnaps or car ries away another”

in count two along with the

other essential elements of the crime. See Pope v. State , 149 Tenn. 176, 258 S.W. 775 (1924); Bishop v. State , 122 Tenn. 729, 127 S.W. 698 (1910); Hall v. State , 43 Tenn. 125, (3 Cold.) 125 (186 6) (holding indictment sufficient if it informs defendant of offense to answe r, informs court of offense and

appropriate

judgment, an d protects d efendant from futu re prosecution for same crime).

The code section referred to in c ount one was merely to defin e “unlawful sexual penetration” not to define the actual charge. Mo reover, reference to the particular code section is not required; the statute portion referred to is mere surplusage. Cole v. State , 512 S.W.2d 598 (Tenn. Crim. App.), cert. denied , (Tenn. 1974) (finding mistaken subsection of statute as mere surplus age); McCracken v.7 The appellant’s reliance upon Rickman v. Dutton , 864 F. Supp. 686, 707 (M.D. Tenn. 1994), is misplaced; this court is not bound by f ederal di strict

court rul ings. Moreover , in Austin v. Bell , 126 F.3 d 843, 84 6-47 (6th Cir. 1997 ), the cour t found the reason able dou bt instruction valid. Reg ardle ss, th e Un ited S tates Sup rem e Co urt did not fin d the use o f “m oral c ertain ty” constitution ally invalid. Victor v. Nebraska , 511 U.S. 1, 114 S.Ct. 1239 ( 1994). The Court was prim arily co nce rned with th e term s “gr ave u nce rtainty” and “ actu al sub stan tial do ubt” u sed in conjun ction with the “mor al certainty” pro vision. Cage v. Louisi ana , 498 U.S . 39, 41, 11 1 S.Ct. 328, 329-30 (1991). The jury instruction presently i n question did not contain the particular terms of concern. Moreove r, the Tennessee Supr eme Court has upheld a si milar inst ruction usi ng the phrase “mo ral certainty,” State v. Nic hols , 877 S.W .2d 722, 7 34 (Te nn. 1994 ), cert. deni ed , 513 U.S. 11 14, 115 S .Ct. 909 (1 995), an d this cou rt has also upheld s imilar instru ctions. Pettyjohn v. State , 885 S.W .2d 364, 3 65-66 (T enn. Cr im. Ap p. 1994) , perm. to appeal de nied , (Tenn. 1994); State v. Hallock , 875 S.W .2d 285, 2 94 (Te nn. Crim . App. 199 3), perm. to appeal de nied , (Tenn. 8 State , 489 S.W.2d 48, 51 (Tenn. Crim. App. 1972), cert. denied , (Tenn. 1972) (finding reference to incorr ect statute as surplusage) ; Harris v. State , 82 Tenn. 485 (1884) (holding wher

e indictment charges an offense in l anguage of statute, other and additional averments not r equired by statute shoul d be disregarded as surplusage).

Nevertheless, we ho ld the reverse side of each count of the indictment may be considered in determining whether the indictment suffici ently apprises the appellant that he was charged with aggrava ted rape and aggravated kidnapping. The reverse side is accepted by “incorporation by reference.” See State v. Nixon , No. 02C01-9612-CC-00484 (Tenn.Crim. App. at Jackson, Dec. 3., 1997) (citing People v. Jeffrey , 94 Ill. App. 3d 455, 49 Ill. Dec. 860, 418 N.E.2d 880, 887 (Il l. App. 1981); State v. Nelson , 514 S.W.2d 581, 584 (Mo. 1974); State v. Hurley , 251 S.W.2d 617, 619 (Mo. 1952); State v. Johnson , 77 N.C. App. 583, 335 S.E.2d 770, 771 (N.C. 1985); Hill v. State , 523 P.2d 1114, 1116 (Okla. Crim. App. 1974)). Since those req uisite of fenses were state d on the re verse side of the pr esentme nt, we think that it is clear that the appellant was apprised of the charges he was t o defend, and the presentment is therefore v alid.

IV. Jury Instruction The fourth challenge by the appellant is the constitutiona lity of the reasonable doubt jury instruction. We agree with the trial court 7 that the jury instruction is valid1994). W e are bo und to fo llow prece dent of o ur state’s s uprem e court. Barger v. Brock , 535 S.W .2d 337, 3 41 (Te nn. 1976 ).

8 8 Although a trial court is allow ed to ente rtain a petition o f habea s corpu s as on e for pos tconvicti on reli ef, the t rial co urt’s dismissal remained appropriate. Post-convi ction rel ief must be filed in the co unty of the a ppellant’s c onviction, W illiamson Coun ty, and not D avidson Coun ty Crim inal Cour t. See Tenn . Code A nn. § 40- 30-204 , -205 (c). 9 in Tennessee, however, this court has repeatedly held that a challenge to a jury instruction does not present a claim for writ of habeas c orpus relief. See Hall v. Mills , No. 01C01-9510-CV-00339 (Tenn. C rim. App. at Nashvill e, Aug. 1, 1996), perm. to appeal denied , (Tenn. 1996); Voss v. Raney , No. 02C01-9501-CC-00022 ( Tenn. Crim. App. at Jackson, Aug . 2, 1995), perm. to appeal denied , (Tenn. 1995). The appellant’s sentence has not expired as the record clearly indicates, nor would this issue render his judgment void. This issue raised by the appellant, even if it were valid, would only

render his judgment vo idable, making it an iss ue to be raised in a post-conviction petition 8 not a petition for writ of habeas corpus.

Based upon the above reasons, the judgement of the trial court de nying the appellant’s petition for writ of habeas corpus is affirmed.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

__________________________________ PAUL G. SUMMERS, Ju dge

___________________________ JERRY L. SMITH, Judge