State v. Jerry Hughes

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

OCTOBER 1997 SESSION

FILED

December 23, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

JERRY L. HUGHES, )

) C.C.A. NO. 02C01-9611-CC-00408 Appellant, )

) LAKE COUNTY

VS. )

) HON. JOE G. RILEY, JR., BILLY COMPTON, Warden, ) JUDGE )

Appellee. ) (Habeas corpus)

FOR THE APPELLANT: FOR THE APPELLEE:

JERRY HUGHES (pro se) JOHN KNOX WALKUP Register No. 111099 Attorney General & Reporter Rt. 1, Box 330 Tiptonville, TN 38079-9775 ELIZABETH T. RYAN Asst. Attorney General

450 James Robertson Pkwy.

Nashville, TN 37243-0493

C. PHILLIP BIVENS

District Attorney General P.O. Drawer E

Dyersburg, TN 38024

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY, Judge

OPINION

The petitioner filed his petition for writ of habeas corpus on September 26, 1996, alleging that he is being illegally restrained pursuant to a forty year sentence imposed in 1986 for two counts of aggravated rape. He contends that the underlying convictions are void because they are based on an invalid indictment. He alleges that the indictment is invalid because neither count includes an allegation of the mens rea element of the offense. The petitioner relies on this Court's opinion in State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App. filed June 20, 1996, at Nashville). The court below summarily dismissed the petition, and this appeal as of right followed. We affirm.

We first note that the Hill case dealt with a post-1989 indictment whereas this case involves a 1986 indictment. This Court has previously held that its decision in Hill is inapposite to pre-1989 indictments. See, e.g., James Clyde Saylor v. Howard Carlton and State, No. 03C01-9612-CR-00453, Johnson County (Tenn. Crim. App. filed Oct. 31, 1997, at Knoxville). Moreover, irrespective of its applicability to this case, our Supreme Court has overruled this Court's decision in Hill. See State v. Hill, __ S.W.2d __ (Tenn. 1997). Further, each of the contested counts of the indictment in this case alleges that the petitioner “with force and arms, in the County aforesaid, unlawfully, and feloniously committed the offense of Aggravated Rape by engaging in unlawful sexual penetration of [the victim], and the said [victim] is a child less than thirteen years of age.” The use of the terms “with force and arms” and “feloniously” are sufficient to allege the culpable mental state for aggravated rape.1 The petitioner's contention is therefore

1 The mens rea requirem ent for ag gravate d rape is inte ntional, kn owing or reckles s. See State v. Hill , __ S.W .2d __, __ (Tenn . 1997).

3

without merit.

The judgment below is affirmed.

___________________________________

JOHN H. PEAY, Judge

CONCUR:

______________________________

PAUL G. SUMMERS, Judge

______________________________

DAVID G. HAYES, Judge