1 The petitio ner a lso cla ims that th e trial ju dge erred by dism issin g the petitio n bef ore h e cou ld respond to the state’s motion t o dismiss. Because we fi nd that the i ndict ment in t his case i s vali d, we nee d not addr ess that c laim

.

2 Although t he petit ioner was i ndicted i n March 1991, the pet iti oner was charged with committing the offen ses in F ebruary 1 988.

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

CHARLES R. SMITH , ) ) Petitioner, ) C. C. A. NO. 02C01-9708-CC-00311 ) vs. ) LAUDERDALE C OUNTY ) ALTON HESSON, WARDEN, ) No. 4972 ) 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 i n accordance with Rule 20, Rules of the Court of Crimi nal Appeals. In March 1991, the peti tioner was indicted on one count of rape and one count of sexual battery. Though the judgment is not contained in th e record, it appears the petitioner was subseq uently convicted of rape and sexual battery, and r eceived an effective sentence of thirteen ye ars. On June 18, 1997, the petiti oner filed a petition for a writ of habeas corpus challenging the sufficiency of the indictmen t entered against him. The trial c

ourt den ied rel ief.
On appeal, the petitioner argues that the indictment is invalid because it failed to assert an essential element of the o ffenses, i.e., the mens rea, and that his convictions, therefore, c annot stand. 1

At the time of the offenses in this case, 2 rape was the unlawful s exual penetration of another accompanied by several enumerated circ umstances, including that force or coercion wa s used to accomplish the act. T.C .A. § 39-2-604 (1982). Sexual battery was

the unlawful sexual cont act with another person ac companied by3 The decision i n Hill is based upon t he Court’s i nterpretation of T.C.A. § 39-11-3 01, which was ena cted in 198 9. Th at sta tute p rovid es, in pertin ent p art, th at “[a] culpa ble m enta l state is req uired within this t itl e unless the def init ion of th e offense plai nly di spenses with a mentalelement.” Pri or to 1989, however, the

Criminal Code di d not contai n a comparable provi sion. 2 several enumerated circumstances, including that forc e or coercion was used to accomplish the act. T.C.A. § 39- 2-607 (1982). The indictment at i ssue before us charged tha

t the petiti oner did “un lawfully and felonious ly sexual ly penetra te [the vic

tim] . . . by the use of force or coer cion” and did “unlawfull y and feloniously have

sexual contact with [the victim] . . . by force or coercion.”

This language was suffici ent under the law as it ex isted at the time. The statutory requirements

for an indictment were found in § 40-13-202, which prov ided simply that:
The indictment must state the facts const ituting the offense in ordinary and concise l anguage, without prol ixity or repetition, 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 the 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 with 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 indictment at issue here suff iciently apprised the appellant of the offen se charged under the law at the time, and is therefore val id.
Although not controlling in the present case, 3 the Supreme Court’s recent3

opinion in State v. Hill , No. 01S01-9701-CC-00005 ( Tenn., Nov. 3, 1997) supports our conclusion. The Court stated that “an indictment nee d not conform to traditionally strict pleading requirements” and that “in modern practice,it is unnecessary to charge guilty knowledge unless it is included in the statutory definition of the off ense.” Moreover, having reviewed the language of the indictment in this case, we find that it would suffice under the Supreme Court’s analy sis of the current statutory requirements of notice and form.
Accordingly, w e find that the indictment at issue meets constitutional and the then-existing statutory requirements, and is therefore valid. It is therefore ORDERED that the judgment o f the trial court is affirmed in accordance with Rule 20 , Rules of the Court of Criminal Appeals.

Enter, this the ___ day of Dec ember, 1997.

___________________________ PAUL G. SUMMERS, JUD GE

___________________________ JOE B. JONES, PRESIDING JUDGE

___________________________ DAVID G. HAYES, JUDG E