State v. Hooper

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 14, 1998
• Docket: 03C01-9704-CR-00152
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY 1998 SESSION July 14, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

JAMES A. HOOPER, ) ) No. 03C01-9704-CR-00152 Appe llant, ) ) Morga n Cou nty vs. ) ) Honorable E. Eugene Eblen, Judge STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

PRO SE JOHN KNOX WALKUP Attorney General & Reporter

TIMOTHY E. BEHAN Assistant Attorney General Cordell Hull Bldg., Second Floor 425 Fifth Avenu e, North Nashville, TN 37243-0493

CHARLES E. HAWK, JR. District Attorney General

FRANK A. HARVEY Assistant District Attorney P. O. BOX 703 KINGSTON, TN 37763

OPINION FILED:____________________

AFFIRMED PURSU ANT TO RU LE 20

WILLIAM B. ACREE, JR. SPECIAL JUDGE OPINION

The appe llant, Ja mes A. Ho oper, a ppea ls as of r ight the trial cou rt’s dismiss al of his pe tition for post-c onviction re lief. We affirm the tria l court.

In 1992, the appellant was indicted in a multi-count indictment charging him with aggravated rape for crimes which were committed in 1990. He was convicted of three counts, but those convictions were reversed by the Court of Criminal Appeals. In 1995, the appellant entered a plea of guilty to one count of aggravated sexual battery, a lesser included offense of Count 5.

The issue raised by the appellant is that the indictment did not allege a culpable mental state and is invalid.1 The a ppella nt relies upon this Co urt’s decision in State v. Rog er Da le Hill, (No. 01C01-9508-CC-00267 (Tenn.Crim.App.), filed June 20, 1996, at Nashville). This decision was reversed by the Su preme Court at State v. Hill, 954 S.W.2d 725 (Tenn.1997). Therein, the Supreme Court held:

“W e hold that for o ffense s whic h neith er exp ressly re quire n or plain ly dispense with the requirement for a culpable mental state, an indictme nt which fa ils to allege s uch m ental state will be sufficien t to support prosecution and conviction for that offense as 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 judg ment, and protection from d ouble jeopa rdy; (2) the form of the indictment meets the requirement of Tenn.Code.Ann. §40-13-202; and (3) the mental state can be logically inferred from the conduct alleged.”

Hill, at 726, 727.

In Hill, the defendant was indicted for aggravated rape. The indictment alleged that the defendant “did unlawfully sexually penetrate (the victim) a person less than thirteen (13) years of age in violation of T.C.A. §39-13-502, all of which is against the peace and dignity of the State of Tennessee”. The Court held that the language of that indictment met constitutional and statutory requirements of notice and form and was therefore valid. In the case at bar, the appellant was

1 The State raises the issue that the petition is barred by the statute of limitations. However, it cannot be determined from the record when the judgment became final nor can it be determined when the petition was filed. Consequently, this issue will not be considered. indicted for the sam e crime by indictm ent using the sa me langu age. Acco rdingly, we hold that the judgment in this case is valid and affirm the dismissal of the petition.

___________________________________ WILLIAM B. ACREE, JR., SPECIAL JUDGE

CONCUR:

___________________________________ JERRY L. SMITH, JUDGE

____________________________________ THOMAS T. WOODALL, JUDGE