                                     I N      T H E   S U P R E M E        C O U R T      O F           T E N N E S S E E

                                                             A T      N A S H V I L L E

                                                       ( H E A R D        A T   J A C K S O N )



S T A T E   O F   T E N N E S S E E                                   )         F O R      P U B L I C A T I O N
                                                                      )
                                                                      )         F I L E D :                N O V E M B E R   3 ,   1 9 9 7
                      A p p e l l a n t                               )
                                                                      )         W A Y N E           C O U N T Y
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                                                                      )         H O N .      J A M E S           L .   W E A T H E R F O R D ,
R O G E R   D A L E     H I L L ,     S R .                           )                    J U D G E
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                      A p p e l l e e                                 )         N O .      0 1 - S - 0 1 - 9 7 0 1 - C C - 0 0 0 0 5


                                                                                                                             FILED
                                                                                                                             November 3, 1997

                                                                                                                     Cecil W. Crowson
F o r   A p p e l l e e :                                                         F o r         A p p e l l a n t : Appellate Court Clerk

S H A R A A N N F L A C Y                                                         J O H N K N O X W A L K U P
D i s t r i c t P u b l i c         D e f e n d e r                               A t t o r n e y G e n e r a l                a n d   R e p o r t e r

W I L L I A M C . B R I G H T                                                     K A T H Y M O R A N T E
A s s i s t a n t P u b l i c D e f e n d e r                                     D e p u t y A t t o r n e y                G e n e r a l
P u l a s k i , T N                                                               N a s h v i l l e , T N

                                                                                  T . M I C H A E L B O T T O M S
                                                                                  D i s t r i c t A t t o r n e y G e n e r a l

                                                                                  R I C    H    A   R    D H . D U N A V A N T
                                                                                  A s s    i    s   t    a n t D i s t r i c t A t t o r n e y
                                                                                    G e    n    e   r    a l
                                                                                  P u l    a    s   k    i , T N




                                                                     O P I N I O N
R E V E R S E D       B I R C H ,   J .




                  2
          We accepted the State’s application for review in this

cause in order to determine the validity of an indictment which

charged aggravated rape.1   The Court of Criminal Appeals held the

indictment void and the subsequent conviction invalid because the

language of the indictment failed to allege a culpable mental

state.2



          This issue arises because the Sentencing Reform Act of

1989 provides that a culpable mental state is required to establish

an offense unless the definition of the offense “plainly dispenses

with a mental element.”     Tenn. Code Ann. § 39-11-301(b)(1991).

Further, when a statute omits reference to a specific mens rea, but

does not plainly dispense with a mens rea requirement, then proof of

“intent,” “knowledge,” or “recklessness” will suffice to establish

a culpable mental state.    Tenn. Code Ann. § 39-11-301(c).     The

statute defining aggravated rape does not expressly require a

culpable mental state, neither does it plainly state that no such

mental state is required.    Thus, proof of intent, knowledge or

recklessness is required to sustain a conviction for that offense.



           Since a plain reading of Tenn. Code Ann. §§ 39-11-301(b)

and (c) leads us to conclude that the Legislature intended that a

culpable mens rea be an element of the offense of aggravated rape,

the question here is whether failure to allege such mens rea in an


     1
      Aggravated rape is defined in Tenn. Code Ann. § 39-13-
502(a)(4) as the “unlawful sexual penetration of a victim by the
defendant . . . [when] [t]he victim is less than thirteen (13) years
of age.”
     2
      The terms “mental state,” “culpable mental state,” and “mens
rea” are used interchangeably.

                                 3
indictment      charging    that   offense         constitutes      a   fatal    defect

rendering the indictment void.              We hold that for offenses which

neither expressly require nor plainly dispense with the requirement

for a culpable mental state, an indictment which fails to allege

such mental state will be sufficient to support prosecution and

conviction for that offense so long as


                    (1) the language of the indictment is
                    sufficient to meet the constitutional
                    requirements of notice to the accused
                    of the charge against which the
                    accused must defend, adequate basis
                    for entry of a proper judgment, and
                    protection from double jeopardy;

                    (2) the form of the indictment meets
                    the requirements of Tenn. Code Ann. §
                    40-13-202; and

                    (3) the mental state can be logically
                    inferred from the conduct alleged.



                                            I



             On or about June 22, 1991, the victim, M.H.,3 and her

older     sister    were    spending    the        night     with    their      paternal

grandmother.       M.H. was about eight years old.            The victim’s father,

defendant Roger Dale Hill, also spent the night at the house.                      M.H.,

her   sister,      and   Hill   went   to       sleep   on   the    floor    while   her

grandmother slept on a couch nearby.                According to M.H., after her

sister and grandmother went to sleep, Hill pulled up her nightgown,

pulled her panties over, and put “[h]is finger in my private,” and

then “got on top of me and . . . started putting his private part



      3
      Due to the age of the victim and the nature of the offense, we
identify the victim by initial only.

                                            4
into mine.”    Hill then began to move “[u]p and down.”    When M.H.

told Hill to stop, he did.



           A few days later, M.H. related the night’s events to her

mother. Subsequently, Hill was arrested and charged with aggravated

rape.    The jury convicted Hill of aggravated sexual battery.   The

trial court sentenced him to a term of twelve years and imposed a

fine in the amount of $25,000.      At the hearing on motion for new

trial, Hill contended, for the very first time, that the indictment

was defective because it failed to specify a culpable mental state

for the crime charged. The trial court rejected this contention and

approved the verdict.     On appeal, the intermediate appellate court

ruled that the indictment was indeed void for failure to allege mens

rea, and the trial court was therefore without jurisdiction.



                                  II



           Because the issues before us are questions of law, our

review is de novo.      State v. Davis, 940 S.W.2d 558, 561 (Tenn.

1997).



           The State contends that the indictment is valid because an

indictment need not specify the culpable mental state when the

language therein is otherwise sufficient to inform the accused of

the charge.



           The indictment in question contains six counts, each in

the following language:


                                   5
               [the   defendant]   did   unlawfully
               sexually penetrate [the victim] a
               person less than thirteen (13) years
               of age, in violation of Tennessee
               Code Annotated 39-13-502, all of
               which is against the peace and
               dignity of the State of Tennessee.


          As   for   constitutional   requirements,   the   Sixth   and

Fourteenth Amendments to the United States Constitution and Article

I, Section 9 of the Tennessee Constitution guarantee to the accused

the right to be informed of the nature and cause of the accusation.

Generally stated, an indictment is valid if it provides sufficient

information (1) to enable the accused to know the accusation to

which answer is required, (2) to furnish the court adequate basis

for the entry of a proper judgment, and (3) to protect the accused

from double jeopardy.    State v. Byrd, 820 S.W.2d 739, 741 (Tenn.

1991); VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn. Crim. App.

1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980).



          We recognize, however, that an indictment need not conform

to traditionally strict pleading requirements. Rather, as the Court

noted in State v. Pearce,


               the strictness required in indict-
               ments had grown to be a blemish and
               inconvenience in the law and the
               administration thereof.     That more
               offenders escaped by the over-easy
               ear    given    to    exceptions    to
               indictments,       than     by     the
               manifestation of their innocence; and
               that the grossest crimes had gone
               unpunished   by    reason   of   these
               unseemly niceties. . . .       [W]hile
               tenderness ought always to prevail in
               criminal cases, yet, that it does not
               require such a construction of words
               as would tend to render the law

                                  6
                 nugatory and ineffectual, nor does it
                 require of us to give into such nice
                 and strained critical objections as
                 are contrary to its true meaning and
                 spirit.   . . .[I]n criminal cases,
                 where the public security is so
                 deeply interested in the prompt
                 execution of justice, it seems the
                 minor consideration should give way
                 to   the   greater,   and   technical
                 objections be overlooked, rather than
                 the ends of society be defeated.


7 Tenn. (Peck) 66-67 (1823).       Over the years, this Court has made

reference to    “the growing inclination of this court to escape from

the embarrassment of technicalities that are empty and without

reason, and tend to defeat law and right.”          State v. Cornellison,

166 Tenn. 106, 59 S.W.2d 514, 515 (Tenn. 1933).        Indeed, the purpose

for the traditionally strict pleading requirement was the existence

of common law offenses whose elements were not easily ascertained by

reference to a statute.      Such common law offenses no longer exist.

See Tenn. Code Ann. § 39-11-102(a) (1991).          Thus, we now approach

“attacks upon indictments, especially of this kind, from the broad

and enlightened standpoint of common sense and right reason rather

than from the narrow standpoint of petty preciosity, pettifogging,

technicality or hair splitting fault finding.”           United States v.

Purvis, 580 F.2d 853, 857 (5th Cir. 1978)(citing Parson v. United

States, 189 F.2d 252, 253 (5th Cir. 1951)).



          The    form   of   an   indictment   is   subject   to   statutory

prescription also.      Tennessee Code Annotated § 40-13-202 (1990)

provides that an indictment must:


                 state the facts constituting the
                 offense in ordinary and concise
                 language, without  prolixity  or

                                     7
               repetition, in such a manner as to
               enable    a    person     of    common
               understanding   to    know   what   is
               intended, and with that degree of
               certainty which will enable the
               court, on conviction, to pronounce
               the proper judgment. . . .


          This statute, procedural in nature, was originally enacted

in 1858, one hundred and thirty-one years prior to the enactment of

the Sentencing Reform Act of 1989, which expressly abolished common

law offenses and statutorily specified the conduct necessary to

support a criminal prosecution in Tennessee.   See Tenn. Code Ann. §

39-11-102(1991) and the Sentencing Commission Comments thereto.



          When the General Assembly enacted the Sentencing Reform

Act of 1989, it included significant references to the requirement

for a culpable mental state.    One such reference is found in Tenn.

Code Ann. § 39-11-301 (1991):


                    (a)(1)    A person commits an
               offense   who   acts   intentionally,
               knowingly,    recklessly    or   with
               criminal    negligence,     as    the
               definition of the offense requires,
               with respect to each element of the
               offense.

                    . . .

                    (b) A culpable mental state is
               required within this title unless the
               definition of an offense plainly
               dispenses with a mental element.

                    (c) If the definition of an
               offense within this title does not
               plainly  dispense   with   a  mental
               element,   intent,    knowledge   or
               recklessness suffices to establish
               the culpable mental state.




                                  8
          Another reference is found in Tenn. Code Ann. § 39-11-201

(1991), which codified the principles regarding burden of proof:

                      (a) No person may be convicted
                 of an offense unless each of the
                 following   is    proven beyond   a
                 reasonable doubt:

                      . . .

                      (2) The culpable mental state
                 required.


Yet another reference is found in Tenn. Code Ann. § 39-11-101

(1991):


                 The   general   objectives        of    the
                 criminal code are to . . .

                 (2)    Give fair warning of what
                 conduct is prohibited, and guide the
                 exercise of official direction in law
                 enforcement, by defining the act and
                 the culpable mental state which
                 together constitute an offense.


          Arguably,   the     first   two   of   these   references   pertain

primarily to the evidence necessary to sustain a conviction.            Their

pertinence, then, to the requirements of a valid indictment is

tangential and secondary at best. Obviously, the description of the

proof necessary to sustain a conviction must be both more inclusive

and conclusive than the language of an indictment.4

          Generally, an indictment must allege the material elements

of an offense.    Torcia, Wharton’s Crim. Pro. § 235 at 59 (1990).

Again, the touchstone for constitutionality is adequate notice to

the accused.


     4
      Any confusion may be due, at least in part, to the loose usage
of the phrase “essential elements,” which can mean the elements
necessary for conviction or the elements necessary to inform the
accused of the charge.

                                      9
             The   authors    of     the    Model    Penal    Code   suggest   that

culpability is not a material element of an offense, although at

common law, “scienter” was a necessary element and had to be alleged

in   every   indictment.       The    common-law      rule,   however,   has   been

modified as to statutory offenses.                  In modern practice, it is

unnecessary to charge guilty knowledge unless it is included in the

statutory definition of the offense.                41 Am.Jur.2d Indictments and

Information § 126 (1995).



             The offense alleged in the indictment under consideration

is aggravated rape.          Tennessee Code Annotated § 39-13-502(a)(4)5

defines the applicable category of aggravated rape as the “unlawful

sexual penetration of a victim by the defendant, . . . [when] the

victim is less than thirteen (13) years of age.”                This statute does

not specify a mental state.            Thus, pursuant to Tenn. Code Ann. §

39-11-301(c), the mental element is satisfied if the indictment

alleges that the defendant committed the proscribed act with intent,

knowledge, or recklessness.                Obviously, the act for which the

defendant is indicted, “unlawfully sexual penetrat[ing]” a person

under the age of thirteen, is committable only if the principal

actor’s mens rea is intentional, knowing, or reckless.6                  Thus, the

required mental state may be inferred from the nature of the

criminal conduct alleged.          Clearly, the language of this indictment

provides adequate notice to both the defendant and the trial court

      5
      This statute has now been amended so that rape of a child less
than thirteen years of age is a separate offense. See Tenn. Code
Ann. § 39-13-522.
      6
      This is true because even while voluntarily intoxicated, a
defendant may recklessly rape a victim or recklessly disregard the
age of a victim. See State v. Jones, 889 S.W.2d 225, 228-29 (Tenn.
Crim. App. 1994).

                                           10
of the offense alleged protects the defendant from subsequent

reprosecution for this same offense.     The form of the indictment

complies with the requirements of Tenn. Code Ann. § 40-13-202.



          In conclusion, we hold that the indictment in this case

charging the defendant with the offense of aggravated rape, in

violation of Tenn. Code Ann. § 39-13-502, meets constitutional and

statutory requirements of notice and form and is, therefore, valid.

Accordingly, the judgment of the Court of Criminal Appeals is

reversed, and the appeal is dismissed.     Costs of this appeal are

taxed to Hill; let execution issue if necessary.




                              ____________________________________
                              ADOLPHO A. BIRCH, JR., Justice


CONCUR:

Anderson, C.J.
Drowota, Reid, Holder, JJ.




                                11
