Russell v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 10, 1997
• Docket: 03C01-9701-CR-00006
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED NOVEMBER 1997 SESSION December 10, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk WENDALL S. RUSSELL, ) C.C.A. No. 03C01-9701-CR-00006 Appellant, ) ) Johnson County V. ) ) Honorable Lynn W . Brown, Judge ) HOWARD CARLTON, WARDEN, ) & STATE OF TENNESSEE, ) ) (Habeas Corpus-Rape) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

Mark H. Toohey John Knox Walkup Attorney at Law Attorney General & Reporter 158 Cherokee Street Kingsport, TN 37660 Michael J. Fahey, II Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

David E. Crockett District Attorney General Route 19, Box 99 Johnson City, TN 37601

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION The appellant, Wendall S. Russell, was convicted by a jury of rape. He

was sentenced to fifteen years incarceration in the Tennessee Department of

Correction. He, thereafter, filed a petition for habeas corpus relief. In his petition

he alleged that the indictment against him was insufficient for failing to allege a

mens rea. He contends his conviction is void. The trial court dismissed the

petition finding that it was not proper for habeas corpus review. The trial court

based this finding on the fact that the appellant’s conviction was not void on its

face and that his sentence had not expired. He appeals this dismissal. Upon

review, we affirm.

The appellant contends that the indictment against him did not sufficiently

allege the mens rea for aggravated rape.1 The appellant bases his theory on

State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, filed

June 20, 1996). The Tennessee Supreme Court has recently reversed Hill

holding that the indictment was constitutionally and statutorily valid. State v. Hill,

No. 01-S-01-9701-CC-00005 (Tenn. Nov. 3, 1997). The Court held the following:

[F]or offenses which neither expressly require nor plainly dispense with the requirement for a culpable mental state, an indictment which fails to allege such mental 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 defend, adequate basis for entry of a proper judgment, and protection from double jeopardy;

(2) the form of the indictment meets the requirements of Tenn. Code Ann. § 40- 13-202; and

1 The indictment against the appellant stated that he “did unlawfully and feloniously, and against his will, have sexual penetration of [the victim] with said act being accomplished by force or coercion and the defendant being armed with a deadly weapon or an article used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon, all contrary to T.C.A. § 39-2-603 . . . .”

-2- (3) the mental state can be logically inferred from the conduct alleged.

Id. at 3.

In this case sub judice, we find that the appellant’s indictment sufficiently

alleged the elements of aggravated rape and was constitutionally and properly

drafted. The facts as alleged in the indictment make the mental state required

for conviction logically obvious. The appellant was fully apprised of the charges

against him in ordinary and concise language. His indictment gave the

convicting court an adequate basis for subject matter jurisdiction. Therefore, the

appellant’s conviction is not void and is improper for habeas corpus review.

Accordingly, we find no error of law mandating reversal. The judgment of

the trial court is affirmed.

__________________________ PAUL G. SUMMERS, Judge

CONCUR:

-3- ______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ J. CURWOOD WITT, Judge

-4-