               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                               FILED
                                      AT KNOXVILLE                           August 13, 1999

                                                                            Cecil Crowson, Jr.
                                     MAY 1999 SESSION                      Appellate C ourt
                                                                               Clerk




WILLIE E. PAYNE,                         *    C.C.A. # 03C01-9809-CR-00336

             Appellant,                  *    HAMILTON COUNTY

VS.                                      *    Honorable Douglas A. Meyer, Judge

STATE OF TENNESSEE,                      *    (Post-Conviction)

             Appellee.                   *



FOR THE APPELLANT:                            FOR THE APPELLEE:

ARDENA J. GARTH                               PAUL G. SUMMERS
District Public Defender                      Attorney General & Reporter

DONNA ROBINSON MILLER                         MARVIN S. BLAIR, JR.
Assistant District Public Defender            Assistant Attorney General
Suite 300, 701 Cherry Street                  425 Fifth Avenue North
Chattanooga, TN 37402                         Nashville, TN 37243-0493

                                              WILLIAM H. COX III
                                              District Attorney General
                                              Suite 300, 600 Market Street
                                              Chattanooga, TN 37402




OPINION FILED: _______________



AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                    OPINION

       The petitioner, Willie E. Payne, appeals the trial court’s dismissal of his

post-conviction relief petition. The petitioner was convicted by a jury of having

raped a female under twelve years of age. The trial court sentenced him to

death, and the Court of Appeal affirmed his sentence in 1978. Later, Governor

Ray Blanton commuted his sentence to life imprisonment. On April 14, 1997, the

petitioner filed a “Petition for Writ of Habeas Corpus,” which was properly treated

by the trial court as a motion for post-conviction relief. The petitioner claims that

the indictment in his case was constitutionally defective because it did not allege

a specific mens rea; i.e., it did not use the language “intentionally, knowingly, or

recklessly.” After review of the record, we affirm the judgment of the trial court.



       Throughout the procedural history of his petition, the petitioner relied

exclusively upon a holding of a panel of this Court in State v. Roger Dale Hill, No.

01C01-9508-CC-00267 (Tenn. Crim. App. filed June 25, 1996, at Nashville),

rev’d, 954 S.W.2d 725 (Tenn. 1997). The Tennessee Supreme Court reversed

this Court’s Hill decision in State v. Hill, 954 S.W.2d 725 (Tenn. 1997).

Nevertheless on appeal, the petitioner asserts that the indictment lacked proper

notice of the offense alleged.



       The petitioner’s reliance on Hill is inappropriate. That decision involved

indictments after the Sentencing Reform Act of 1989. Our Supreme Court held

that the Hill rationale also applies to pre-1989 indictments in Dykes v. Compton,

978 S.W.2d 528 (Tenn. 1998). Our Supreme Court addressed Hill’s application

to offenses occurring from 1983 to 1988 in Crittenden v. State, 978 S.W.2d 929

(Tenn. 1998).



       Concerning a 1975 indictment, we would follow our Supreme Court’s

language in Campbell v. State, 491 S.W.2d 359 (Tenn. 1973), regarding

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sufficiency of an indictment. The language of Campbell is directly on point when

the Court stated, “It is clear, however, that had the indictment used the words

‘feloniously’ or ‘unlawfully,’ it would have been sufficient.” Id. at 361. The

alleged indictment is this case used both “feloniously” and “unlawfully.”



       However, the petitioner’s omission of the pertinent indictment in the record

submitted to this Court is dispositive. Since a copy of the indictment is not

included in the record, there is no evidence of its language other than the

allegations contained in the petition. It is the responsibility of the petitioner to

provide a copy of the indictment that he attacks. See Tenn. R. App. P. 24. By

omitting the essential document, the petitioner has waived his sole articulated

ground for appeal.



       The judgment of the trial court is AFFIRMED.




                                                _____________________________
                                                JOHN EVERETT W ILLIAMS, Judge


CONCUR:




_______________________________
JAMES CURWOOD WITT, JR., Judge




_______________________________
ALAN E. GLENN, Judge




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