         IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE

                                AT KNOXVILLE

                         NOVEMBER 1997 SESSION         FILED
                                                        January 23, 1998

                                                       Cecil Crowson, Jr.
PERRY C. RILEY,                      )                 Appellate C ourt Clerk
                                     )
            Appellant,               )   C.C.A. No. 03C01-9705-CR-00181
                                     )
vs.                                  )   MORGAN COUNTY
                                     )
CHARLES JONES, Warden,               )
and STATE OF TENNESSEE,              )   HON. E. EUGENE EBLEN, JUDGE
                                     )
            Appellees.               )   (Habeas Corpus)
                                     )

FOR THE APPELLANT:                       FOR THE APPELLEE:

KENNETH F. IRVINE, JR.                   JOHN KNOX WALKUP
606 W. Main Street, Suite 350            Attorney General & Reporter
P.O. Box 84
Knoxville, TN 37901-0084                 MICHAEL J. FAHEY, II
                                         Assistant Attorney General
                                         425 5th Avenue North, 2nd Floor
                                         Cordell Hull Building
                                         Nashville, TN 37243

                                         CHARLES E. HAWK
                                         District Attorney General

                                         FRANK HARVEY
                                         Assistant District Attorney
                                         P.O. Box 703
                                         Kingston, TN 37763-0703




OPINION FILED: _____________



AFFIRMED



CURWOOD WITT, JUDGE
                                          OPINION




               The petitioner, Perry Riley, appeals the dismissal of his habeas corpus

petition. He stands convicted of one count of aggravated rape and one count of

aggravated sexual battery. In his habeas corpus petition, the petitioner assails the

indictment on the ground that the applicable mens rea elements were not stated,

such that the indictment is defective upon the authority of State v. Roger Dale Hill,

No. 01C01-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20, 1996). We

affirm the dismissal of the petition for habeas corpus relief.



               Roger Dale Hill was reversed by our supreme court. State v. Hill, ---

S.W.2d ---, No. O1-S-01-9709-CC-00005 (Tenn. Nov. 3, 1997).               In Hill, the

defendant was indicted for aggravated rape upon language virtually identical to

count one in the present case. Our supreme court noted in Hill that the statute

proscribing the offense of aggravated rape “does not require a culpable mental

state, neither does it plainly state that no such mental state is required.” Hill, ---

S.W.2d at ---, slip op. at 2. Recognizing that the Sentencing Reform Act of 1989

provides that a culpable mental state is required to establish an offense unless the

proscribing statute “plainly dispenses with a mental element,” Tenn. Code Ann. §

39-11-301(b)(1991), the court reasoned that the offense of aggravated rape is

committed if the accused acted with either intent, knowledge, or recklessness. Hill,

--- S.W.2d. at ---, slip op. at 2; see Tenn. Code Ann. § 39-11-301(c) (1991). In this

situation, the court held, an indictment which does not state a mental state is still

sufficient if (1) the language meets the constitutional requirements of notice of the

charge, provides an adequate basis for entry of a proper judgment, and protects

against double jeopardy; (2) the form of the indictment satisfies Code section 40-13-

102; and (3) the mental state can be “logically inferred from the conduct alleged.”

Hill, --- S.W.2d at ---, slip op. at 3.




                                              2
               In the present case, the petitioner correctly maintains that count one,

at least, of the indictment is indistinguishable from Hill. The mens rea may be

“inferred from the nature of the criminal conduct alleged,” and the other requisites

for sufficiency of the indictment as enumerated in Hill are present. Hill, --- S.W.2d

at ---, slip op. at 9. As to count one, the petitioner’s claim is meritless.



               Count two is perhaps deserving of a different analysis. It alleges

aggravated sexual battery under Tennessee Code Annotated section 39-13-

504(a)(4). Although this code section does not explicitly state a required mental

state, it defines aggravated sexual battery as the “unlawful sexual contact” with a

victim committed under certain circumstances (the circumstances applicable in the

present case being that the victim is less than thirteen years of age). Tenn. Code

Ann. § 39-13-504(a) (Supp. 1997). “Sexual contact” is defined to include the

“intentional touching” of the victim.      Tenn. Code Ann. § 39-13-501(6)(1991).

Perhaps Hill may be read fairly to apply in this situation, in which case Hill validates

count two as well as count one. See State v. John Claude Wells, III, No. 01C01-

9505-CR-00146, slip op. at 8 (Tenn. Crim. App., Nashville, June 6, 1997) (observing

that Code section 39-13-504 “does not contain a culpable mental state”), pet. for

perm. app. filed (Tenn. Aug. 1, 1997). Regardless, count two is valid under another

theory that this court has utilized in reviewing indictments brought under section 39-

13-504. When the indictment charging an offense of aggravated sexual battery

alleges that the defendant committed an “unlawful sexual contact,” as the indictment

alleges in the present case, “the use of the terms ‘sexual contact’ in the indictment

is the same as if the definition is set forth in full.” John Claude Wells, III, slip op. at

8; see also State v. John James, No. 01C01-9601-CR-00016, slip op. at 19 (Tenn.

Crim. App., Nashville, March 27, 1997). Under this rationale, count two is validly

presented.




               For the foregoing reasons, we affirm the trial court’s dismissal of the



                                            3
habeas corpus petition.



                                    _______________________
                                    CURWOOD WITT, JUDGE


CONCUR:


___________________________
JOE B. JONES, PRESIDING JUDGE



___________________________
PAUL G. SUMMERS, JUDGE




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