State v. Darel G. Bolin

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 15, 1998
• Docket: 03C01-9612-CR-00450
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED AUGUST 1997 SESSION January 15, 1998

STATE OF TENNESSEE ) Cecil Crowson, Jr. Appellate C ourt Clerk ) NO. 03C01-9612-CR-00450 Appellant, ) ) CUMBERLAND COUNTY v. ) ) Hon. Leon C. Burns, Jr., Judge DAREL G. BOLIN ) ) (Post Conviction) Appellee. ) ) )

For the Appellant For the Appellee

Charles W. Burson Joe L. Finley, Jr. Attorney General & Reporter Assistant Public Defender 215 Reagan Street Michael J. Fahey, II Cookeville, TN. 38501 Assistant Attorney General 450 James Robertson Parkway Nashville, TN. 37243-0493

William Edward Gibson 145 South Jefferson Avenue Cookeville, TN. 38501-3424

David A. Patterson Assistant District Attorney General 145 South Jefferson Avenue Cookeville, TN. 38501-3424

OPINION FILED:_____________________

REVERSED AND REMANDED

WILLIAM M. BARKER, JUDGE OPINION

The appellant, State of Tennessee, appeals the Cumberland County Criminal

Court’s decision to grant post-conviction relief to the defendant, Darel G. Bolin. After

a jury trial in 1992, the defendant was convicted of aggravated sexual battery and was

sentenced as a Range I standard offender to twelve years in the Tennessee

Department of Correction.1 The defendant, thereafter, filed a direct appeal to this

Court and we affirmed his conviction. See State v. Darel G. Bolin, No. 03C01-9407-

CR-00269 (Tenn. Crim. App. at Knoxville, April 18, 1995). 2

After a careful review of the record, we reverse the trial court’s order granting

the defendant’s petition for post-conviction relief.

In his post-conviction petition, defendant challenged the validity of the

indictment charging him with aggravated rape. He argued that the indictment was

fatally deficient in failing to include the requisite mens rea for the aggravated rape

offense. The trial court followed this Court’s decision in State v. Roger Dale Hill, Sr.,3

and granted post-conviction relief.

Our supreme court, however, has recently reversed the decision in Hill. See

State v. Roger Dale Hill, No. 01S01-9701-CC-0005 (Tenn. at Nashville, Nov. 3, 1997).

The Court recognized that modern statutory codes serve to avoid the hypertechnical

requirement of common law pleading. Therefore, as reasoned by the Court, an

omission of the mens rea element from an offense is not always fatal to the

indictment. Slip op. at 5-6. The Court held that an indictment is legally sufficient if:

(1) Its language satisfies the constitutional requirement of notice to the accused, (2) Its

form meets the requirements set forth in Tennessee Code Annotated section 40-13-

1 The defendant was originally indicted by the Cumberland County Grand Jury for the offense of aggrav ated rap e. The ju ry, howeve r, convicte d him o f the lesse r offens e of agg ravated sexua l battery.

2 The supr em e cou rt gra nted defe nda nt’s p etition for pe rm issio n to a ppe al and affirm ed his conviction . See State v. Bolin , 922 S.W .2d 870, 875 (Tenn. 1996 ).

3 No. 01C 01-950 8-CC -00267 (Tenn . Crim. A pp. at Na shville, June 20, 1996 ), per. app. granted (Tenn. 1996).

2 202 (Supp. 1996), 4 and (3) The requisite mental state can be logically inferred from

the alleged criminal conduct. Slip op. at 3.

The indictment in this case is virtually identical to the indictment in Hill. Its

states in pertinent part:

The Grand Jurors for the State of Tennessee, upon their oath present that Darel G. Bolin, a/k/a Darl G. Bolin, on several occasions during the past three (3) years, in Cumberland County, Tennessee, and before the finding of this indictment, did unlawfully sexually penetrate [K.N.], a person less than thirteen (13) years of age, in violation of T.C.A. 39-13- 502 (a)(4), and against the peace and dignity of the State of Tennessee.

Following the supreme court’s decision in Hill, we find that the mens rea

element can be inferred from the indictment language charging the defendant with

aggravated rape. Moreover, the indictment sets forth the facts constituting the offense

and provides the defendant with sufficient notice of the charges as mandated by our

constitution. Accordingly, we conclude that the indictment is valid.

Based upon the foregoing, the trial court’s order of post-conviction relief is

reversed and the case is remanded to the trial court to reinstate the defendant’s

conviction and sentence in accordance with this opinion.

____________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

________________________ GARY R. WADE, JUDGE

________________________ PAUL G. SUMMERS, JUDGE

4 Unde r Tenn essee Code Annota ted sec tion 40-13 -202 (S upp. 199 6), an indictm ent m ust state the charged offense in ordinary and concise language that will provide the accused with a common unders tanding a nd will enab le the trial cour t to enter a p roper jud gme nt.