           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE          FILED
                              APRIL 1997 SESSION
                                                       January 26, 1998

                                                      Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
STATE OF TENNESSEE,                   )    C.C.A. No. 03C01-9612-CR-00454
                                      )
             Appellant,               )    KNOX COUNTY
                                      )
VS.                                   )    HON. RICHARD BAUMGARTNER,
                                      )      JUDGE
JAMES DAVID SHROPSHIRE,               )    (Assault, Aggravated Sexual Battery)
                                      )
             Appellee.                )



FOR THE APPELLANT:                         FOR THE APPELLEE:

JOHN KNOX WALKUP                           KENNETH F. IRVINE, JR.
Attorney General and Reporter              550 Main Avenue
Chattanooga, TN 37402                      NationsBank Center
                                           Suite 775
MICHAEL J. FAHEY, II                       Knoxville, TN 37901
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493

RANDALL E. NICHOLS
District Attorney General

WILLIAM H. CRABTREE
CHARME JOHNSON
Assistant District Attorney General
City-County Building
Knoxville, TN 37902




OPINION FILED:


REVERSED AND REMANDED



CHRIS CRAFT,
SPECIAL JUDGE
                                    OPINION


               The State of Tennessee appeals from the decision of the trial judge

dismissing convictions for assault and aggravated sexual battery due to insufficiency

of the presentment. We reverse, reinstate the convictions and remand for further

proceedings.

       Appellee, James David Shropshire, was tried in September, 1995 on a three

count presentment for Rape of a Child (Count I) and Aggravated Sexual Battery

(Counts II and III). He was acquitted of Count II and the jury deadlocked on Counts

I and III. Upon retrial in March 1996, Mr. Shropshire was convicted of assault as

included in Count I and Aggravated Sexual Battery as charged in Count III. Prior to a

hearing on the Motion for New Trial, the trial judge dismissed the convictions due to

the release of State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App.,

Nashville, June 20, 1996), because the presentment failed to allege a culpable mental

state, an essential element of each offense. The Tennessee Supreme Court has since

reversed the holding of the Court of Criminal Appeals in Hill, holding instead that the

required mental state may be inferred from the nature of the criminal conduct alleged,

and does not have to be alleged in the charging instrument. State v. Roger Dale Hill,

No. 01-S-01-9701-CC-00005 (Jackson, November 3, 1997).

       Having examined Counts I and III and found them sufficient to provide adequate

notice to both the defendant and the trial court of each offenses alleged, we therefore

find that the dismissal of the presentment was not proper, reinstate the convictions,

and remand to the trial court for a hearing on the Motion for New Trial and any further

required proceedings.

       The judgment of the trial court is REVERSED AND REMANDED.




                                          CHRIS CRAFT, SPECIAL JUDGE




                                          2
CONCUR:


JERRY L. SMITH, JUDGE




JOE RILEY, JUDGE




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