          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE
                                                       FILED
                                                         March 25, 1998
                          JANUARY 1998 SESSION
                                                       Cecil Crowson, Jr.
                                                       Appe llate Court C lerk

NELSON B. GRAVES,                    )
                                     )
             Appellant,              )      C.C.A. No. 03C01-9705-CR-00171
                                     )
vs.                                  )      Johnson County
                                     )
HOWARD CARLTON, WARDEN,              )      Hon. Lynn W. Brown, Judge
AND STATE OF TENNESSEE,              )
                                     )      (Habeas Corpus)
             Appellees.              )



FOR THE APPELLANT:                          FOR THE APPELLEE:

NELSON B. GRAVES                             JOHN KNOX WALKUP
Pro Se                               Attorney General and Reporter
N.E.C.C.
P.O. Box 5000                        SANDY COPOUS PATRICK
Mountain City, TN 37683                  Assistant Attorney General
                                         2d Floor Cordell Hull Bldg.
                                         425 Fifth Ave. North
                                         Nashville, TN 37243-0943

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




OPINION FILED:__________________


AFFIRMED


CURWOOD WITT, JUDGE
                                              OPINION

                 The petitioner, Nelson B. Graves, appeals the Johnson County Criminal Court's

summary denial of his petition for the writ of habeas corpus. According to his petition, Graves is

presentlyserving an effective 55 year incarcerativesentence following his convictions of threecounts

of aggravated rape and one count of aggravated kidnapping. See also State v. Nelson B. Graves, No.

744, slip op. at 1 (Tenn. Crim. App., Knoxville, Dec. 10, 1981), perm. app. denied (Tenn. 1982). It

appearsthat hecommittedhis crim in 1980.1 Graves alleges the court belowerroneously failed to
                               es

issue the writ of habeas corpus, to which he claim entitlement because (1) the district attorney
                                                  s

general's signature is lacking from som of the charging instruments, and (2) the indictments against
                                       e

him fail to allege a culpable mens rea. Having reviewed the records and the arguments of the

petitioner and the state, w affirm the trial court's dism
                           e                             issal of Graves's petition.



                 We begin our analysis with recitation of Rule 12(b)(2), Tennessee Rules of Criminal

Procedure.

        Any defense, objection, or request which is capableof determinationwithout the trial
        of the general issue may be raised before trial by motion. M    otions may be written or
        oral at the discretion of the trial judge. The following must be raised prior to trial.
        ...
        Defenses and objections based on defects in the indictment, presentment or
        information (other than that it fails to show jurisdiction in the court or to charge an
        offense which objections shall be noticed by the court at any tim during the
                                                                                  e
        pendency of the proceedings)[.]

Tenn. R. Crim P. 12(b)(2). Objections not made in accordance with the time fram of rule 12(b)(2)
             .                                                                 e

are waived. Tenn. R. Crim P. 12(f).
                         .



                 Theabsenceof theattorney general's signatureon an indictment is neithernecessary

for a showing of jurisdiction nor for the charging of anoffense. Thus, under R 12(b)(2), anobjection
                                                                              ule

to a defect of this nature must be made pre-trial, and not in a collateral, post-trial habeas corpus



        1
       The indictments included in the record consist of one charge of criminal
conduct in 1977 and five charges of criminal conduct in 1980. Matching the
indictments with the judgment forms attached to the pleadings Graves filed in the
court below, we infer that his complaint relates to four of the indictments for the
1980 crimes.
petition. John C. Tomlinson v. Howard Carlton, No. 03C01-9610-CR-00389, slip op. at 5 (Tenn. Crim.

App., Knoxville, Oct. 2, 1997), pet. for perm app. filed (Tenn., Oct. 31, 1997); see also State v.

Anthony Nixon, No. 02C01-9612-CC-00484, slip op. at 4 (Tenn. Crim. App., Jackson, Dec. 3, 1997)

(defects "that go to matters of formrather than substance" must beraised pre-trial or they are waived

pursuant to Rule 12), pet. for perm. app. filed (Tenn., Jan. 20, 1998). In his brief, Graves concedes

no such objection was made "during the course of his trial." The issue was waived when it w not
                                                                                           as

raised pre-trial, and it is not properly before us now.



                 Graves also claim entitlement to the writ of habeas corpus based upon alleged
                                  s

deficiencies in the indictments in failing to allege a culpable mental state. He bases his argum on
                                                                                                ent

the provisions of Code sections 39-11-301 and 39-11-302. Those provisions require a culpable

mental state for the commission of a crim offense and define the four culpable mental states
                                         inal

applicable to violations of the 1989 Criminal Code. H supports his argum by citation to State v.
                                                     e                  ent

Roger Dale Hill, Sr., No. 01C01-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20, 1996), rev'd,

954 S.W.2d 725 (Tenn. 1997), and State v. Nathaniel W No. 03C01-9408-CR-00277 (Tenn. Crim.
                                                     hite,

App., Knoxville, June 7, 1995).



                 The fallacy in Graves's argument is that, unlike the defendants in Hill and White, his

crimes were committed in 1980, long before the enactment of the 1989 Criminal Code. The

touchstone of the now-reversed Hill decision and White is section 39-11-301. See Roger Dale Hill,

slip op. at 5 (court of criminal appeals




                                                   3
opinion); Nathaniel White, slipop. at 4. Thecrim law at the time of Graves's crimesdidnot contain
                                                inal

an analogous provision. See, e.g., Carl E. Saine v. Alton Hesson, No. 02C01-9710-CC-00399 (Tenn.

Crim. App., Jackson, Dec. 15, 1997) (Rule 20 Order), pet. for perm. app. filed (Tenn., Dec. 29, 1997);

Harvey Qualls v. Billy Compton, No. 02C01-9610-CC-0331, slip op. at 4, n.2 (Tenn. Crim. App.,

Jackson, Oct. 17, 1997), pet. for perm. app. filed (Tenn., Dec. 16, 1997).



                     Notwithstanding Graves's reliance on reversed and inapposite authority, w find the
                                                                                              e

indictments against himsufficient under the applicable law. The aggravated rape indictments allege

in pertinent part,

         That NelsonB. G   raves heretoforeonthe1st day of April, 1980. . . didunlawfullyand
         feloniously engage in sexual penetration, to wit: [method of sexual penetration]2, with
         [the victim], a person thirteen (13) years of age, by using force and coercion to
         accomplish said act, and did cause personal injury to [the victim], against the peace
         and dignity of the State.

At the time of the crimes, aggravated rape was defined in pertinent part as "unlawful sexual

penetration of another accompanied by any of the following circumstances: . . . The actor uses force

or coercion to accomplish the act, and . . . [t]he actor causes personal injury to the victim. . . ." Tenn.

Code Ann. § 39-3703 (Supp. 1979).



                     The aggravated kidnapping indictment alleges in pertinent part,

         That NelsonB. G   raves heretoforeonthe1st day of April, 1980 . . . did unlawfully and
         feloniously seize, confine, inveisle [sic], entice, decoy, abduct, conceal kidnap or
         carry away [the victim], and while being so held the said [victim] was the victim of a
         felony, to wit: Aggravated Rape, against the peace and dignity of the State.

On the relevant date, aggravated kidnapping was criminalized in pertinent part as




         2
       The three aggravated rape indictments upon which Graves was
convicted alleged fellatio, cunnilingus, and sexual intercourse, each allegation
being contained in a separate indictment.

                                                    4
follows:

           Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals,
           kidnaps or carries away any individual shall be deemed guilty of aggravated
           kidnapping when one or more of the following circumstances are present . . . The
           victimsuffers seriousbodilyharmor is thevictimof anyfelonycommittedwhilebeing
           held . . . .

Tenn. Code Ann. § 39-2603 (Supp. 1980).



                   A portion of the former Criminal Code relevant to Graves provided that indictments

must

           state the facts constituting the offense in ordinary and concise language, without
           prolixity or repetition, in such a manner as to enable a person of comm         on
           understanding to know what is intended, and with that degree of certainty which will
           enable the court, on conviction, to pronounce the proper judgm . . . .
                                                                           ent

Tenn. Code Ann. § 40-1802 (1975) (currently codified at Tenn. Code Ann. § 40-12-202).3 The

indictments in the case at bar closely followthe statutory formof the crimes. Their form is consistent

with the mandate of section 40-1802. Cf., e.g., Carl E. Saine; William Edward Whitt v. State, No.

02C01-9704-CC-00140 (Tenn. Crim. App., Jackson, July 1, 1997) (Rule 20 Order). Thus, we find

them sufficient under the law as it existed at the time.



                   Graves's final issue alleges constitutional deprivationby thecourt belowin "refusing

to entertaina properly drafted petition with valid issues for review." Because we have foundGraves's

substantive issues are not valid bases for granting habeas corpus relief, this argument collapses of

its own weight.




                   The trial court's dismissal of the meritless petition is affirmed.




           3
      The Criminal Code also provided that an indictment of a crime
chargeable at common law could "be charged or described substantially at
common law." Tenn. Code Ann. § 40-1805 (1975) (now § 40-13-205).

                                                     5
                                _______________________________
                                CURWOOD WITT, JUDGE




CONCUR:




_____________________________
GARY R. WADE, JUDGE



_____________________________
JOSEPH M. TIPTON, JUDGE




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