State v. Larry Joyner

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 LARRY LEONARD JOYNER, JR., ) ) C.C.A. NO. 02C01-9610-CC-00328 Appellant, ) ) LAKE COUNTY VS. ) ) HON. JOE G. RILEY, JR., BILLY COMPTON, Warden, ) JUDGE ) Appellee. ) (Habeas corpus)

FOR THE APPELLANT: FOR THE APPELLEE:

LARRY LEONARD JOYNER, JR. (pro se) JOHN KNOX WALKUP Register No. 135266 Attorney General & Reporter Rt. 1, Box 330 Tiptonville, TN 38079-9775 DEBORAH A. TULLIS 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 August 9, 1996,

alleging that he is being illegally restrained by virtue of a twenty year sentence imposed

in 1990 for aggravated rape. He contends that the underlying conviction is void because

it is based on an invalid indictment. He alleges that the indictment is invalid because it

does not include 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 our Supreme Court has overruled this Court's decision

in Hill. See State v. Hill, __ S.W.2d __ (Tenn. 1997). Moreover, the indictment against

the petitioner alleges that he committed aggravated rape by “unlawfully forcibly or

coercively sexually penetrat[ing] [the victim] causing personal injury.” The use of the term

“forcibly or coercively” is sufficient to allege the mens rea required for aggravated rape.1

The petitioner's contention is therefore without merit.

The judgment below is affirmed.

___________________________________ JOHN H. PEAY, Judge

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 CONCUR:

______________________________ PAUL G. SUMMERS, Judge

______________________________ DAVID G. HAYES, Judge