              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                        AT JACKSON



JAMES CARR,                               )
                                                                       FILED
                                          )                         April 23, 1998
       Petitioner,                        ) C. C. A. NO. 02C01-9802-CC-00037
                                          )                       Cecil Crowson, Jr.
vs.                                       ) LAKE COUNTY           Appellate C ourt Clerk
                                          )
STATE OF TENNESSEE,                       ) No. 98-7739
                                          )
       Respondent.                        )



                                         ORDER



              This matter is before the Court upon the state’s motion to affirm the

judgment of the trial court in accordance with Rule 20, Rules of the Court of Criminal

Appeals. In January 1984, the petitioner was indicted on one count of aggravated rape.

The petitioner was subsequently convicted of this charge and was sentenced to life

imprisonment. The petitioner has since filed a petition for a writ of habeas corpus

challenging the sufficiency of the indictment and the jury instruction on reasonable

doubt. The trial court denied relief.



              On appeal, the petitioner argues that the indictment is invalid because it

failed to assert an essential element of the offense, i.e., the mental state, and that his

conviction, therefore, cannot stand. The petitioner also contends that the trial judge

provided the jury a defective instruction on reasonable doubt.



              At the time of the offense in this case, aggravated rape was defined as

the unlawful sexual penetration of another accompanied by several enumerated

circumstances, including that force or coercion was used to accomplish the act and the

defendant was armed with a weapon. T.C.A. § 39-2-603 (1982). The indictment at

issue before us charged that the petitioner “did unlawfully, feloniously and forceably

[sic] sexually penetrate [the victim], at the time of the said sexual penetration he, the

said JAMES CARR was armed with a weapon, to-wit, a knife.”
               This language was sufficient under the law as it existed at the time. The

statutory requirements for an indictment were found in § 40-13-202, which provided

simply that:


              The indictment 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 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.



Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis

supplied), while addressing the sufficiency of an indictment charging the offense of

murder, our Supreme Court stated the following:


                While it seems clear that the indictment in Witt was insufficient in
       that it failed to charge an element, that the murder was committed
       unlawfully, in either the language of the statute or common law or words
       of equivalent import, the decision is confusing because of the language,
       ‘fatally defective in omitting the charge that the offense was committed
       feloniously, or with malice aforethought; and containing no words of
       equivalent import.’ It is clear, however, that had the indictment used the
       words ‘feloniously’ or ‘unlawfully’, it would have been sufficient.



We agree with this proposition. By containing the words found in the language of the

statute, the indictment at issue here sufficiently apprised the petitioner of the offense

charged under the law at the time, and is therefore valid. See Orren v. State, No.

03C01-9704-CR-00141 (Tenn. Crim. App., Feb. 13, 1998).



               The petitioner also challenges the adequacy of the reasonable doubt jury

instruction. The petitioner, however, has failed to include a copy of the indictment in the

record. T.R.A.P. 24. Accordingly, the petitioner has waived the issue and this Court,

therefore, is precluded from conducting an adequate review on appeal. See State v.

Ballard, 855 S.W.2d 557 (Tenn. 1993). Regardless, this is not a proper ground for

habeas corpus relief. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (habeas

corpus relief available only when convicting court was without jurisdiction to sentence

defendant or defendant's sentence has expired).




                                              2
             Accordingly, for the reasons stated above, is hereby ORDERED that the

judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of

Criminal Appeals.



             Enter, this the ___ day of April, 1998.




                                         ___________________________
                                         PAUL G. SUMMERS, JUDGE



                                         ___________________________
                                         JOE B. JONES, PRESIDING JUDGE



                                         ___________________________
                                         DAVID G. HAYES, JUDGE




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