State v. Gary Russell

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

GARY RUSSELL, ) ) Petitioner, ) C. C. A. NO. 02C01-9712-CC-00475 ) vs. ) MADISON COUNTY

STATE OF TENNESSEE, ) ) No. C96-362 ) FILED Respondent. ) August 31, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk ORDER

This matter is before the Court upon the state’s motion to affirm the trial

court judgment in this case in accordance with Rule 20, Rules of the Court of Criminal

Appeals. The record has been filed and the petitioner, by and through counsel, has

filed his brief.

This case represents an appeal from the trial court’s denial of the

petitioner’s post-conviction petition.1 The petitioner is challenging the sufficiency of the

indictment. Specifically, the petitioner claims the indictment charging him with

aggravated sexual battery is void because it fails to allege the requisite mens rea.2 In

Kimmel v. State, No. 02C01-9701-CR-00006 (Tenn. Crim. App., Jan. 12, 1998), faced

with this very issue, this Court held that the indictment was constitutionally and

statutorily sufficient to support the conviction.

Accordingly, having reviewed the petitioner’s brief in light of the entire

record on appeal, we find that the trial court did not err by dismissing the petition. It is,

therefore, ORDERED that the state’s motion is granted and the judgment of the trial

1 After he filed his petition for post-conviction relief, the petitioner filed what is styled “amended petition for a w rit of habea s corpu s.” The issue rais ed in this plea ding is the s ame as in the po st- conviction petition. The trial court’s order denying relief, however, does not distinguish between the two pleading s. Rega rdless, the petition for w rit of habea s corpu s was filed in the wron g court, see T.C.A . § 29-21-1 05, and, th erefore , would oth erwise h ave bee n dism issed.

2 The indictment reads, in pertinent part: “by the use of force did unlawfully engage in sexual condu ct with [the victim ] and cau se bod ily injury to [the victim].” court is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.

_______________________________ DAVID G. HAYES, JUDGE

_______________________________ PAUL G. SUMMERS, JUDGE

_______________________________ JOE G. RILEY, JUDGE