        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE            FILED
                      OCTOBER SESSION, 1997       December 23, 1997

                                               Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
TIMOTHY WAYNE              )   C.C.A. NO. 03C01-9611-CR-00443
JOHNSON,                   )
                           )
      Appe llant,          )   BLEDSOE COUNTY
                           )
                           )
VS.                        )
                           )   HON. BUDDY PERRY
JAME S A. BO WLE N,        )   JUDGE
WAR DEN ,                  )
                           )
      Appellee.            )   (Habeas Corpus)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF BLEDSOE COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

TIMOTHY WAYNE JOHNSON          JOHN KNOX WALKUP
Pro Se                         Attorney General and Reporter
Route 4, Box 600
Pikeville, TN 37367            MICH AEL J . FAHE Y, II
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243

                               J. MICHAEL TAYLOR
                               District Attorney General

                               JAME S W . POP E, III
                               Assistant District Attorney General
                               Corner of Third and Market
                               First American Bank Building
                               Suite 300
                               Dayton, TN 37321


OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION

      The Petitioner, Timothy Wayne Johnson, appeals the trial court’s order

denying him habeas corpus relief. He was indicted for aggravated rape, which

led to his conviction. He argues that his conviction is void because the indictment

charging him with the offen se of aggrava ted rape is fatally defective beca use it

fails to alleg e the re quisite mens rea. We affirm the judgm ent of the trial court

dismissing the petition.



      In his habeas corpus petition, the Petitioner alleges that the indictment

failed to specify the mens rea for the offense of aggravated rape a nd thu s, his

conviction was void . We note that th e record does not contain a copy of the

judgment form, which preve nts us from a dequ ately re viewing his claim for re lief.

Howeve r, he has stated in his petition that he was convicted of aggravated rape

and sentenced on April 6, 1994, to twenty years incarceration. The Petitioner

filed a petition for a writ of habeas corpus on Sep tembe r 10, 199 6. The S tate

submitted a motion to dismiss the petition on Septembe r 18, 1996.               The

Petitioner requested a writ of mandamus from this Court to compe l the Cir cuit

Court of Bledsoe County to issue its decision on the petition, which a pane l of this

Court denied in an orde r dated D ecem ber 6, 19 96. The trial court entered an

order on December 17, 1996, denying the petition. The Petitioner now appeals.



      An indictment or presentment must provide notice of the offense charged,

an adequate basis for the entry of a proper judgment, and suitable protection

against double jeopard y. State v. T rusty, 919 S.W.2d 305, 310 (Tenn . 1996);



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State v. Byrd, 820 S.W .2d 739 , 741 (T enn. 19 91); State v. Lindsay, 637 S.W.2d

886, 890 (T enn. C rim. A pp. 19 82).     T he ind ictme nt “mu st state the fac ts in

ordinary and concise language in a manner that would enable a person of

common unde rstand ing to k now w hat is intended, and with a deg ree of ce rtainty

which would enable the court upon conviction, to pronounce the proper

judgm ent.” W a rden v. Sta te, 381 S.W.2d 244, 245 (Tenn. 1964); Tenn. Code

Ann. § 4 0-13-20 2.



       A lawful accusation is an essential jurisdictiona l elemen t, thus, a

prosecution canno t procee d withou t an indictm ent that su fficiently informs the

accused of the essential eleme nts of the o ffense. State v. Perkinson, 867 S.W.2d

1, 5 (Tenn. Crim. App . 1992); State v.Morgan, 598 S.W.2d 796, 797 Tenn. Crim.

App. 1979).    A judgment based on an indictment that does not allege all the

essential eleme nts of the o ffense is a nullity. Wa rden v. Sta te, 381 S.W .2d at

245;    McCracken v. State, 489 S.W .2d 48, 53 (T enn. Crim. A pp. 1972).

Furthermore, the Tennessee Code provides that "[i]f the definition of an offense

within this title does not plainly dispense with a m ental elem ent, intent,

knowledge, or recklessness suffices to es tablish the culpable menta l state."

Tenn . Code Ann. § 3 9-11-30 1(c).



       The Petitioner c ites a rece nt decisio n of a pane l of this Court that held an

indictment invalid which charged the offense of aggravated rape in language

similar to that in the case sub judice. See State v. Roger Dale Hill, C.C.A. No.

01C01-9508-CC-00267, Wayne County (Tenn. Crim. App., Nashville, June 20,

1996), rev’d, ___ S.W .2d __ _ (Te nn. 19 97). H e ass erts tha t the ind ictme nt only

alleges that he “unlawfully, with force or coercion, did sexually penetrate” the

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victim. He argues that the indictment fails to assert a reckless, knowing or

intentional mental state as required by Tennessee Code Annotated section

39-11-301(c). The indictment reads as follows:

      The GRAND JURORS OF COFFEE County, Tennessee, duly
      empaneled and sworn , upon their oath, pre sent that TIMOTHY WAYNE
      JOHNSON on the __ _ day of AUGUST, 1993, in COFFEE COUNTY,
      Tennessee, and before the return of this indic tment, u nlawfully, with
      force or coercion, did sexually penetrate MELANIE DICKINSON, in
      violation of T.C .A. 39- 13-50 2, while armed with a weapon or an artic le
      used or fashioned in a manner to lead the said MELANIE DICKINSON
      reaso nably to believe it to be a weapon, and against the peace and
      dignity of the State of Tennessee.


      Our supre me c ourt re cently provided guidance on this issue in its opinion

reversing Hill:

   for offenses wh ich neither expres sly require nor plainly dispense with the
   requirement for a culpable mental state, an indictment which fails to allege
   such men tal 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 defen d, adequa te basis for entry of
      a proper judg ment, and protection from d ouble jeopa rdy;
      (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.


Hill, ___ S.W .2d ___ (Te nn. 1997).



      Here, the indictment clea rly satisfie s the c onstitu tional n otice requirem ents.

There was adequate notice that the Defendant was charged with the statutory

offense of agg ravate d rape as cod ified in Tennessee Code Annotated section

39-13-502 (a)(1), which contains the essential elements of the offense. Here too,

is sufficient information by which the trial judge could pronounce judgment for the

offense of aggravated rape. Finally, the Defendant is adequately protected

                                          -4-
against a seco nd pro secu tion for a n offen se of a ggrav ated ra pe of th e victim

occurring during August, 1993.



      Regarding the second requirement, it is also apparent that the indictment

was drafted such that a person of ordinary intelligence could un derstan d with

what offense he was charged. The indictment also sufficiently stated the factual

circumstances by alleg ing the identity o f the victim and w hat sp ecific act of

forcible sexual penetration the Defendant was called to defend against. Likewise,

the third req uirem ent, tha t the m ental s tate be logica lly inferred from the

indictme nt, has b een s atisfied .     The a llegation of “force” or “coercion”

contemplates a mental state.          As defined in the Code, “‘[f]orce’ means

compulsion by the use of physical power or viole nce a nd sh all be b roadly

construed to accomplish the purposes of this title.” Tenn. Code Ann. § 39-11-

106(a)(12). Force implies that the power is directed toward an end and without

the conse nt of the victim . Lundy v. S tate, 521 S.W. 2d 591, 594 (Tenn. Crim.

App. 1974). Likewise, “coercion" means "threat of kidnaping, extortion, force or

violence to be performe d imm ediate ly or in the future o r the us e of pa rental,

custo dial, or official authority over a ch ild less than fifteen (15) ye ars of ag e."

Tenn. Code A nn. § 39-13-5 01(1).      Thus , the elemen ts of the charged offe nse

imply that the Defendant possessed the necessary awareness of his actions that

would satisfy proof of a culpable mental state und er section 39-11-3 01(c).

Sexual penetration by force or coercion necessarily implies the sexual

penetration would occu r intentio nally or knowingly. Therefore, we conclude that

the indictment in this case adequately informed the Defendant of the charges

agains t him and does n ot supp ort his claim for habe as corp us relief.




                                          -5-
       According ly, we affirm the judgment of the trial court dismissing the

petition.




                               ____________________________________
                               DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
JERRY L. SMITH, JUDGE




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