            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                         SEPTEMBER 1997 SESSION         October 31, 1997

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

I. G. COURTNER,                     )
                                    )    C.C.A. NO. 03C01-9701-CR-00005
            Appellant,              )
                                    )    JOHNSON COUNTY
VS.                                 )
                                    )    HON. LYNN W. BROWN,
STATE OF TENNESSEE,                 )    JUDGE
                                    )
            Appellee.               )    (Habeas corpus)



FOR THE APPELLANT:                      FOR THE APPELLEE:


ISAAC G. COURTNER, pro se               JOHN KNOX WALKUP
TDOC no. 132603, Unit 10                Attorney General & Reporter
Northeast Correctional Center
P.O. Box 5000                           MARVIN E. CLEMENTS, JR.
Mountain City, TN 37683-5000            Asst. Attorney General
                                        450 James Robertson Pkwy.
                                        Nashville, TN 37243-0493

                                         DAVID CROCKETT
                                         District Attorney General
                                         Rt. 19, Box 99
                                         Johnson City, TN 37601




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The petitioner filed his “Motion to Dismiss and for Immediate Release” on

September 18, 1996, alleging that his 1990 conviction for aggravated rape must be set

aside pursuant to 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).

Specifically, he claims that the indictment charging him with aggravated rape fails to

allege an essential element of the crime and his conviction must therefore be set aside.

The court below treated the petitioner’s motion as a petition for writ of habeas corpus and

denied it on the grounds that it failed to state a basis for relief. The petitioner appeals,

claiming that the court below erred in treating his petition as one for a writ of habeas

corpus and further contending that he is entitled to relief under Hill. We affirm the

judgment below.



              The indictment against the petitioner provides that he “did unlawfully and

feloniously have sexual intercourse with [the victim], by the use of force and coercion,

and did cause bodily injury, in violation of ” T.C.A. § 39-2-603. In Hill, the indictment

alleged merely that the defendant had “unlawfully sexually penetrate[d] [the victim] a

person less than thirteen (13) years of age.” This Court found that the use of the word

“unlawfully” was not sufficient to allege the defendant’s mens rea, an essential element

of the offense. Accordingly, the indictment was found fatally defective.



              The indictment in the petitioner’s case is significantly different. In addition

to alleging that the crime was committed “unlawfully,” the indictment provides that the

defendant committed the offense “feloniously” and “by the use of force and coercion.”

As pointed out by the State, Judge Tipton of this Court has previously considered



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allegations similar to those of the petitioner’s in which the defendant had been charged

with “unlawfully and feloniously sexually penetrat[ing] [the victim] by use of force or

coercion.” See Charles Gates v. State, No. 03C01-9510-CC-00313, Bradley County

(Tenn. Crim. App. Order filed Aug. 16, 1996, at Knoxville). In that case, Judge Tipton

ruled as follows:

                  Historically, the word <feloniously’ has meant <[p]roceeding
                  from an evil heart or purpose; done with a deliberate intention
                  of committing a crime.’ As our supreme court has previously
                  noted, <one meaning attached to the word is: “In a legal
                  sense, done with the intent to commit a crime.” ’ Certainly,
                  these mental states that are necessarily inherent in the word
                  <feloniously,’ as recognized in Tennessee for the better part
                  of this century, would include a reckless mens rea, as such
                  exists in the present law.

                   An indictment is no less valid for failing to allege the offense
                   in the words of the statute if it alleges the equivalent to those
                   terms. Thus, the indictment, in charging aggravated rape,
                   was and is jurisdictionally sufficient to support the entry of a
                   judgment of conviction for rape. . . .

Id. (citations omitted). See also State v. John Haws Burrell, No. 03C01-9404-CR-00157,

Anderson County (Tenn. Crim. App. filed Feb. 11, 1997, at Knoxville) (in which a panel

of this Court adopted with approval Judge Tipton’s conclusion that the term “feloniously”

necessarily implies the mens rea of intentional, knowing or reckless).                                    The same

reasoning applies in this case. This issue is without merit.



                  The indictment charging the petitioner with aggravated rape is sufficient on

which to base a valid conviction. The judgment below is therefore affirmed.1



                                                        ____________________________________
                                                        JOHN H. PEAY, Judge



         1
           Und er the reas oning of this cas e, the resu lt wou ld be th e sam e wh ethe r the p etition er’s
“m otion ” was treate d as a writ of habe as c orpu s or a s a pe tition fo r pos t-con viction relief. Acc ordin gly,
we find it unn ecess ary to addre ss the p etitioner’s co ntention tha t the lower c ourt erred in its
characterization of his claim for relief.

                                                           3
CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
WILLIAM M. BARKER, Judge




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