            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       DECEMBER SESSION, 1997          FILED
                                                       February 13, 1998

                                                   Cecil Crowson, Jr.
CHARLES EDWARD ORREN,          )                       Appellate C ourt Clerk
                               )   No. 03C01-9704-CR-00141
      Appellant                )
                               )   JOHNSON COUNTY
vs.                            )
                               )   Hon. LYNN BROWN, Judge
HOWARD CARLTON, Warden         )
and STATE OF TENNESSEE,        )
                               )   (Writ of Habeas Corpus)
      Appellee                 )



For the Appellant:                 For the Appellee:

Charles Edward Orren, Pro Se       John Knox Walkup
N.E.C.C. #108907                   Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683            Michael J. Fahey, II
                                   Assistant Attorney General
                                   Criminal Justice Division
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                     OPINION



       The appellant, Charles Edward Orren, appeals the Johnson County Criminal

Court’s dismissal of his pro se petition for writ of habeas corpus. The appellant was

originally indicted by the Washington County Grand Jury for aggravated rape on

May 6, 1985. He pled guilty to this charge in August, 1985 and received a sentence

of thirty years imprisonment. The instant petition was filed on February 10, 1997. In

seeking issuance of the writ of habeas corpus, the appellant contends that the

judgment entered against him is void because the indictment failed to allege the

mens rea of the offense charged. The trial court dismissed the appellant’s petition

finding that the allegations concerning the sufficiency of the indictment are not

cognizable in habeas corpus proceedings and should have been raised on direct

appeal. Additionally, the court included in its findings that, at the time of the offense,

proof of a culpable mental state was not required. The appellant appeals the trial

court’s ruling.



                                       ANALYSIS



                       A. Grounds for Habeas Corpus Relief

       We first address the question of whether the sufficiency of an indictment can

be reviewed or tested in a habeas corpus proceeding. It is well-established that, in

Tennessee, habeas corpus relief is only available when a conviction is void because

the convicting court was without jurisdiction or authority to sentence a defendant, or

that a defendant’s sentence has expired and the petitioner is being illegally

restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). A void judgment is

one which shows “upon the face of the judgment or the record of the proceedings

upon which the judgment is rendered” that the convicting court was without

jurisdiction. Lack of jurisdiction was addressed by a panel of this court in State v.

Nixon, No. 02C01-9612-CC-00484 (Tenn. Crim. App. at Jackson, Dec. 3, 1997),


                                          2
wherein we held:

        ‘Lack of jurisdiction’ refers to subject matter jurisdiction which a
        defendant has no power to waive. Pon v. U.S., 168 F.2d 373, 374
        (1948). See also State v. Seagraves, 837 S.W.2d 615, 628 (Tenn.
        Crim. App. 1992). Subject matter jurisdiction is the power of the court
        to hear and decide a particular type of action.[1] . . . In reference to
        objections alleging failure to state an offense, the rationale is that if the
        indictment fails to include an essential element of the offense, no
        crime is charged and, therefore, no offense is before the court. See
        State v. Perkinson, 867 S.W.2d 1, 5-6 (Tenn. Crim. App. 1992).


Thus, when the mental state is an essential element of the offense and the requisite

mental state cannot be fairly imported from the language of the charging instrument,

the trial court is divested of the jurisdiction necessary to proceed with the criminal

prosecution. See State v. Hill, 954 S.W.2d 725 (Tenn. 1997) (holding that the

requisite mental state can be logically inferred from the alleged criminal conduct.);

State v. Marshall, 870 S.W.2d 532, 537 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1993); State v. Dison, No. 03C01-9602-CC-00051 (Tenn. Crim. App. at

Knoxville, Jan. 31, 1997) perm. to appeal denied, (Tenn. Dec. 1, 1997) (holding that

under our current criminal code culpability for aggravated rape is not an essential

element of the offense). In its “Order of Dismissal,” the trial court held that “a defect

in an indictment is a matter which must be raised in the trial court and on direct

appeal.” While we acknowledge that various panels of this court have held that

allegations concerning the sufficiency of an indictment cannot be reviewed in

habeas corpus proceedings, we are constrained to note that this holding paints with

too broad a brush.2 In accordance with Archer, we hold that the validity of the

indictment may be challenged in a habeas corpus proceeding only upon grounds




        1
          In the case before us, it is undisputed that the Washington County Criminal Court had
exclus ive original jurisd iction of the ind icted crim inal offens e. See Tenn. Code Ann. § 16-10-
102(1994).

          2
            The cases commonly cited for the proposition that challenges to the sufficiency of an
indictment may not be reviewed in habeas corpus proceedings are Hagg ard v. State , 475 S.W.2d
186, 187-88 (Tenn. Crim. App. 1971) and Brown v. State , 445 S.W.2d 669, 674 (Tenn. Crim. App.
1969). Both Haggard and Brown involved challenges not pertaining to the court’s subject matter
jurisdiction or whether the indictment failed to state an offense. Defects in the indictment, other
than those challenging subject matter jurisdiction or failure to state an offense, are waived unless
raised pr ior to trial. See Tenn. R. Crim. P. 12(b)(2).

                                                  3
that (1) it fails to properly charge an offense or (2) the convicting court was without

jurisdiction.



                                   B. Sufficiency of Indictment

        The indictment in the instant case charged as follows:

        [t]hat CHARLES EDWARD ORREN heretofore, to wit, on or about the
        latter part of May, 1984, in the County aforesaid, did engage in
        unlawful sexual penetration of NLF,[3] a female of eleven (11) years of
        age, in violation of Section 39-2-603, Tennessee Code Annotated, and
        against the peace and dignity of the State of Tennessee.


The above language sets forth, verbatim, the crime of aggravated rape in the words

of the corresponding statute as it existed on the date of the offense. See Tenn.

Code Ann. § 39-2-603 (1982).



        In determining whether an indictment fails to charge an offense because it

has omitted the mens rea of the offense charged, it is first necessary to establish

whether the crime occurred under the old or the new criminal code, i.e., before or

after November 1, 1989. The new criminal code which, in large part, is an adoption

of the MODEL PENAL CODE, marked a substantial departure from the old code which

was common law in origin. Those offenses which occurred after November 1, 1989,

the effective date of our current code, are governed by our supreme court’s recent

decision in State v. Hill, 954 S.W.2d at 725. In Hill, the court concluded that the

omission of the mens rea element from an offense is not always fatal to the

indictment. Id. at 726. A post-1989 indictment is legally sufficient if: (1) the

language satisfies the constitutional requirement of notice to the accused, (2) its

form meets the requirement set forth in Tenn. Code Ann. § 40-13-202 (Supp. 1996),

and (3) the requisite mental state can be logically inferred from the alleged criminal

conduct. Id. at 726-727.



        3
           It is the policy of this court to refer to minors who are victims of sexual abuse by the use
of their initials to pro tect their iden tity. See State v. Schimpf, 782 S.W.2d 186, 188 note 1 (Tenn.
Crim. App. 1989).

                                                   4
         If, however, the offense occurred prior to November 1, 1989, a different

analysis is required.4 Under the pre-1989 Criminal Code, the requisite mental state

of the crime was often found in the statutory definition of the particular offense.5

Thus, the court must review the indictment to determine whether the challenged

indictment tracks the language of the statutory offense charged. Recitation of the

statutory language gives rise to the presumption that the indictment sufficiently

apprises the defendant of the mental element required. Cf. Campbell v. State, 491

S.W.2d 359, 361 (Tenn. 1973). A number of the statutory offenses under our old

code, however, contained no defined mental state. This case, involving aggravated

rape, illustrates one such example. Although no mens rea is included in the

definition of the offense of aggravated rape, this does not mean, however, that none

is required. If this were the situation then the crime of aggravated rape would be

one of strict liability. See Dison, No. 03C01-9602-CC-00051. We note that the trial

court’s dismissal of this case was due, in part, to its finding that, prior to November

1, 1989, “the law . . . did not require the State to prove a culpable mental state” with

respect to the offense of aggravated rape. This finding is erroneous. “[The] mere

omission [from the statutory definition of the offense] of any mention of [the mental

state] will not be construed as eliminating that element from the crimes denounced.”

Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250 (1952); see also

         4
          We note that, as a basis for its rationale, the decision in Hill relies upon Tenn. Code Ann.
§ 39-11-301(c) (1991) (requirements of culpability and the mental states of intentional, knowing or
reckless). Obviously, to the extent that Tenn. Code Ann. § 39-11-301(1) and the mental states of
“intentional, knowing or reckless,” as they exist under our current criminal code, were not a part of
our com mon law code prior to 198 9, Hill is inapplicable to pre-1989 indictments. Although we find
Hill not controlling for pre-1989 offenses, the principles of Hill are applicable. It has long been the
rule in this state that where a statute creates an offense, the indictment must charge the facts and
circum stance s which constitute the offen se as m entioned in the statute . Hill, 954 S.W.2d at 729;
see also Cam pbell v. State , 491 S.W .2d 359, 3 61 (Te nn. 1973 ); Peek v. State , 21 Ten n. (2 Hum .)
78, 8 5-86 (184 0). Alth oug h it is be tter to strictly p ursu e the word s of th e sta tute, it is suff icient if
words of equiva lent imp ort or of m ore com prehen sive imp ort are us ed. See Cam pbe ll, 491
S.W .2d at 361 ; Peek, 21 Tenn. (2 Hum.) at 86.

         5
          See, e.g., Tenn. Code Ann. § 39-2401 (murder required that the killing be malicious);
Tenn. Code Ann. § 39-4202 (larceny required a felonious taking); Tenn. Code Ann. § 39-4217
(forgery required a fraudulent making); Tenn. Code Ann. § 39-801 (bribery required a corrupt
offer); Tenn. Code Ann. § 39-501 (arson required malice). In sum, over twenty different terms are
used th rougho ut the pre- 1989 C ode to ex press th e require d me ntal state. D avid L. Ra ybin, The
Propo sed Te nness ee Crim inal Code --Gen eral Interpr etive Pro visions a nd Cu lpability, 41 T E N N . L.
R EV . 131, 144 (1973). Clearly, one of the objectives in the enactment of our current criminal code
was to alleviate the confusion that existed from the sheer number of different mental states and
their varying definitions. This was accomplished by adopting four mental states which define the
required culpability for the respec tive offens es, i.e., intentional, kn owing, rec kless, a nd neg ligent.

                                                        5
Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088 (1985)

(“eliminating the mens rea requirement would criminalize a broad range of

apparently innocent conduct.”).



        The requirement that scienter is a necessary element in the proof of every

crime in both common law offenses and statutory offenses is fundamental. The

United States Supreme Court decision in Dennis v. United States, 341 U.S. 494,

500, 71 S.Ct. 857, 862 (1951), observed: “[t]he existence of a mens rea is the rule

of, rather than the exception to, the principles of Anglo-American criminal

jurisprudence.” Again, speaking on the necessity of scienter, the Supreme Court

held:


        Crime, as a compound concept, generally constituted only from
        concurrence of an evil-meaning mind with an evil-doing hand, was
        congenial to an intense individualism and took deep and early root in
        American soil. As the states codified the common law of crimes, even
        if their enactments were silent on the subject, their courts assumed
        that the omission did not signify disapproval of the principle but merely
        recognized that intent was so inherent in the idea of the offense that it
        required no statutory affirmation. Courts, with little hesitation or
        division, found an implication of the requirement as to offenses that
        were taken over from the common law.

Morissette, 342 U.S. at 251-252, 72 S.Ct. at 244. The Supreme Court’s decision in

Morissette applied common law mens rea to statutory crimes. Morissette, 342 U.S.

at 263, 72 S.Ct. at 251. Moreover, there is an interpretive presumption that a mens

rea is required for those crimes which have their origin in the common law. Id.

Thus, in those statutory crimes, originating from the common law, which do not

expressly include scienter in their definition, the mens rea to be applied is that mens

rea required for the offense under the common law. See Morissette, 342 U.S. at

263, 72 S.Ct. at 251; United States v. United States Gypsum Co., 438 U.S. 422,

437, 98 S.Ct. 2864, 2873 (1978).




        The offense of aggravated rape is a crime which has its origins in the


                                          6
common law.6 See State v. Wilkins, 655 S.W.2d 914, 916 (Tenn. 1983) (citations

omitted). At common law, rape was a general intent crime. See 75 C.J.S. Rape §

9 (1952). Accordingly, no intent is required other than that evidenced by the doing

of the acts constituting the offense. Id.; see also Wilkins, 655 S.W.2d at 916;

Walden v. State, 156 S.W.2d 385, 387 (Tenn. 1941). Thus, for the indictment to be

sufficient in the present case it need only charge that the accused unlawfully

sexually penetrated a victim under the age of thirteen. Again, the necessary mens

rea is the intent to commit the unlawful act. Based upon the foregiong, we conclude

that the language of the challenged indictment sufficiently informed the accused of

the charge against him.



        The judgment of the trial court is affirmed.




                                          ____________________________________
                                          DAVID G. HAYES, Judge


CONCUR:



________________________________
DAVID H. WELLES, Judge



________________________________
THOMAS T. W OODALL, Judge




        6
          At common law, rape was defined as “the unlawful carnal knowledge of a woman over
the age of ten years forcibly and without her consent, or, as otherwise expressed, by force, or
forcibly, and against her will, or such knowledge of a female child under the age of ten years either
with or without her consent.” Wilkins, 655 S.W.2d at 916 (citation omitted). We note that the
offense in the present case is aggravated rape and not rape. Our supreme court has recognized,
however, that the offense of aggravated rape is but an aggravated form of the common law
offens e of rape . Wilkins, 655 S.W.2d at 916.

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