State v. Jerry Hughes

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 23, 1997
• Docket: 02C01-9611-CC-00408
• Status: Published

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).

2 without merit.

The judgment below is affirmed.

___________________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Judge

______________________________ DAVID G. HAYES, Judge