Johnson v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED OCTOBER SESSION, 1997 December 23, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

TIMOTHY WAYNE ) C.C.A. NO. 03C01-9611-CR-00443 JOHNSON, )

)

Appe llant, ) BLEDSOE COUNTY )

)

VS. )

) HON. BUDDY PERRY

JAME S A. BO WLE N, ) JUDGE WAR DEN , )

)

Appellee. ) (Habeas Corpus)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF BLEDSOE COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

TIMOTHY WAYNE JOHNSON JOHN KNOX WALKUP Pro Se Attorney General and Reporter Route 4, Box 600 Pikeville, TN 37367 MICH AEL J . FAHE Y, II Assistant Attorney General 425 5th Avenu e North

Nashville, TN 37243

J. MICHAEL TAYLOR

District Attorney General

JAME S W . POP E, III

Assistant District Attorney General Corner of Third and Market First American Bank Building Suite 300

Dayton, TN 37321

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE

OPINION

The Petitioner, Timothy Wayne Johnson, appeals the trial court’s order denying him habeas corpus relief. He was indicted for aggravated rape, which led to his conviction. He argues that his conviction is void because the indictment charging him with the offen se of aggrava ted rape is fatally defective beca use it fails to alleg e the re quisite mens rea. We affirm the judgm ent of the trial court dismissing the petition.

In his habeas corpus petition, the Petitioner alleges that the indictment failed to specify the mens rea for the offense of aggravated rape a nd thu s, his conviction was void . We note that th e record does not contain a copy of the judgment form, which preve nts us from a dequ ately re viewing his claim for re lief. Howeve r, he has stated in his petition that he was convicted of aggravated rape and sentenced on April 6, 1994, to twenty years incarceration. The Petitioner filed a petition for a writ of habeas corpus on Sep tembe r 10, 199 6. The S tate submitted a motion to dismiss the petition on Septembe r 18, 1996. The Petitioner requested a writ of mandamus from this Court to compe l the Cir cuit Court of Bledsoe County to issue its decision on the petition, which a pane l of this Court denied in an orde r dated D ecem ber 6, 19 96. The trial court entered an order on December 17, 1996, denying the petition. The Petitioner now appeals.

An indictment or presentment must provide notice of the offense charged, an adequate basis for the entry of a proper judgment, and suitable protection against double jeopard y. State v. T rusty, 919 S.W.2d 305, 310 (Tenn . 1996);

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State v. Byrd, 820 S.W .2d 739 , 741 (T enn. 19 91); State v. Lindsay, 637 S.W.2d 886, 890 (T enn. C rim. A pp. 19 82). T he ind ictme nt “mu st state the fac ts in ordinary and concise language in a manner that would enable a person of common unde rstand ing to k now w hat is intended, and with a deg ree of ce rtainty which would enable the court upon conviction, to pronounce the proper judgm ent.” W a rden v. Sta te, 381 S.W.2d 244, 245 (Tenn. 1964); Tenn. Code Ann. § 4 0-13-20 2.

A lawful accusation is an essential jurisdictiona l elemen t, thus, a prosecution canno t procee d withou t an indictm ent that su fficiently informs the accused of the essential eleme nts of the o ffense. State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App . 1992); State v.Morgan, 598 S.W.2d 796, 797 Tenn. Crim. App. 1979). A judgment based on an indictment that does not allege all the essential eleme nts of the o ffense is a nullity. Wa rden v. Sta te, 381 S.W .2d at 245; McCracken v. State, 489 S.W .2d 48, 53 (T enn. Crim. A pp. 1972). Furthermore, the Tennessee Code provides that "[i]f the definition of an offense within this title does not plainly dispense with a m ental elem ent, intent, knowledge, or recklessness suffices to es tablish the culpable menta l state." Tenn . Code Ann. § 3 9-11-30 1(c).

The Petitioner c ites a rece nt decisio n of a pane l of this Court that held an indictment invalid which charged the offense of aggravated rape in language similar to that in the case sub judice. See State v. Roger Dale Hill, C.C.A. No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App., Nashville, June 20, 1996), rev’d, ___ S.W .2d __ _ (Te nn. 19 97). H e ass erts tha t the ind ictme nt only alleges that he “unlawfully, with force or coercion, did sexually penetrate” the

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victim. He argues that the indictment fails to assert a reckless, knowing or intentional mental state as required by Tennessee Code Annotated section 39-11-301(c). The indictment reads as follows:

The GRAND JURORS OF COFFEE County, Tennessee, duly empaneled and sworn , upon their oath, pre sent that TIMOTHY WAYNE JOHNSON on the __ _ day of AUGUST, 1993, in COFFEE COUNTY, Tennessee, and before the return of this indic tment, u nlawfully, with force or coercion, did sexually penetrate MELANIE DICKINSON, in violation of T.C .A. 39- 13-50 2, while armed with a weapon or an artic le used or fashioned in a manner to lead the said MELANIE DICKINSON reaso nably to believe it to be a weapon, and against the peace and dignity of the State of Tennessee.

Our supre me c ourt re cently provided guidance on this issue in its opinion reversing Hill:

for offenses wh ich neither expres sly require nor plainly dispense with the requirement for a culpable mental state, an indictment which fails to allege such men tal state will be sufficient to support prosecution and conviction for that offense so long as

(1) 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 defen d, adequa te basis for entry of a proper judg ment, and protection from d ouble jeopa rdy;

(2) the form of the indictment meets the requirements of Tenn. Code Ann. § 40-13-202; and (3) the mental state can be logically inferred from the conduct alleged.

Hill, ___ S.W .2d ___ (Te nn. 1997).

Here, the indictment clea rly satisfie s the c onstitu tional n otice requirem ents.

There was adequate notice that the Defendant was charged with the statutory offense of agg ravate d rape as cod ified in Tennessee Code Annotated section 39-13-502 (a)(1), which contains the essential elements of the offense. Here too, is sufficient information by which the trial judge could pronounce judgment for the offense of aggravated rape. Finally, the Defendant is adequately protected

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against a seco nd pro secu tion for a n offen se of a ggrav ated ra pe of th e victim occurring during August, 1993.

Regarding the second requirement, it is also apparent that the indictment was drafted such that a person of ordinary intelligence could un derstan d with what offense he was charged. The indictment also sufficiently stated the factual circumstances by alleg ing the identity o f the victim and w hat sp ecific act of forcible sexual penetration the Defendant was called to defend against. Likewise, the third req uirem ent, tha t the m ental s tate be logica lly inferred from the indictme nt, has b een s atisfied . The a llegation of “force” or “coercion” contemplates a mental state. As defined in the Code, “‘[f]orce’ means compulsion by the use of physical power or viole nce a nd sh all be b roadly construed to accomplish the purposes of this title.” Tenn. Code Ann. § 39-11- 106(a)(12). Force implies that the power is directed toward an end and without the conse nt of the victim . Lundy v. S tate, 521 S.W. 2d 591, 594 (Tenn. Crim. App. 1974). Likewise, “coercion" means "threat of kidnaping, extortion, force or violence to be performe d imm ediate ly or in the future o r the us e of pa rental, custo dial, or official authority over a ch ild less than fifteen (15) ye ars of ag e." Tenn. Code A nn. § 39-13-5 01(1). Thus , the elemen ts of the charged offe nse imply that the Defendant possessed the necessary awareness of his actions that would satisfy proof of a culpable mental state und er section 39-11-3 01(c). Sexual penetration by force or coercion necessarily implies the sexual penetration would occu r intentio nally or knowingly. Therefore, we conclude that the indictment in this case adequately informed the Defendant of the charges agains t him and does n ot supp ort his claim for habe as corp us relief.

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According ly, we affirm the judgment of the trial court dismissing the petition.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

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GARY R. WADE, JUDGE

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JERRY L. SMITH, JUDGE