         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE               FILED
                         DECEMB ER SESSION, 1997         February 3, 1998

                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

GEO RGE F. JON ES, JR .,          )     C.C.A. NO. 03C01-9702-CR-00062
                                  )
           Appe llant,            )
                                  )     JOHNSON COUNTY
                                  )
V.                                )
                                  )     HON. LYNN W. BROWN, JUDGE
STATE OF TENNESSEE,               )
                                  )
           Appellee.              )     (HABEAS COR PUS)




FOR THE APPELLANT:                FOR THE APPELLEE:

GEORGE F. JONES, JR., pro se      JOHN KNOX WALKUP
#163274 NECC                      Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683-5000      SANDY COPOUS PATRICK
                                  Assistant Attorney General
                                  2nd Floor, Cordell Hull Building
                                  425 Fifth Avenue North
                                  Nashville, TN 37243

                                  DAVID CROCKETT
                                  District Attorney General
                                  Route 19, Box 99
                                  Johnson City, TN 37601




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Petitioner, G eorge F . Jones, J r., appea ls as of right the trial cou rt’s

dismissal of his petition for writ of habeas corpus relief. We affirm the judgment of

the trial cou rt.



       Petitioner was indicted on multiple counts of aggravated rape in violation of

Tennessee Code A nnotated se ction 39-13-50 2. All offenses we re alleged to have

been committed in November of 1989.              Following a jury trial, Petitioner was

convicted on four (4) counts of aggravated rape and sentenced to four (4) concurrent

sentences of twenty (20) years. On December 5, 1996, Petitioner filed a petition for

habeas corpus relief in the Johnson County Criminal Court which is the subject of

this appeal. In essence, Petitioner argues that his sentence is void because the

culpa ble mental state for the offense of aggravated rape was not alleged in the

indictme nts.



       In support of his argument, Petitioner relies upon the de cision of this C ourt in

State v. Rog er Da le Hill, C.C.A. No. 01C01-9508-CC-00267, Wayne County (Tenn.

Crim. App., Nashville, Jun e 20, 1 996). H owev er, our supre me c ourt re verse d this

Cou rt’s decision in Hill. See State v. Hill, 954 S.W.2d 725 (Tenn. 1997). The

Tennessee Supreme Court held in Hill as follows :


       [F]or offenses which neither expressly require nor plainly d ispense with
       the requirement for a culpable mental state, an ind ictme nt whic h 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 defen d, ade quate basis

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              for entry of a proper jud gme nt, and protec tion from doub le
              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.

Id. at 726-2 7.


       The issue b efore th is Cou rt is the same issue addressed by the suprem e court

in Hill, that is, w hethe r an ind ictme nt cha rging a ggrav ated ra pe wa s void for failure

to allege a culpable mental state. Tennessee Code Annotated section § 39-13-

502(a)(3)(A) defines aggravated rape as the “un lawful s exual p enetra tion of a victim

by the defendant” where the “defendant is aided or abetted by one (1) or more other

persons; and [f]orce or coercion is used to accomplish the act.” This statute does

not specify a me ntal state, but the required mental state may be inferred from the

nature of the criminal conduct alleged in the indictments in the Petitioner’s case.

The indictments alleg ed that Petitioner o n four different d ays did “unlaw fully, sex ually

penetra te [the victim] by force or coercion while aided and abetted by one or more

persons, in violation of T.C.A. § 39-13-50 2, contrary to the statute, and against the

peace and dign ity of the State of Tenn essee ." Obviously, the act for which Petitioner

is indicted, “unlawfully, sexually penetrat[ing]” a victim, is “committable only if the

principal actor’s mens rea is intentional, knowing , or reckless.” Hill, 954 S.W.2d at

729. Also, the language of the indictment sufficiently apprised Defendant of the

offenses charged, and were stated in ordinary and co ncise lan guage so that a

person of common understanding would know what was intended. Tenn. Code Ann.

§ 40-13-2 02. Furth ermor e, the language in the indictme nts ade quately p rotects

Defendant against subsequent reprosecution for this sam e offense . Hill, 954 S.W.2d




                                             -3-
at 727, 729. Therefore, the indictments in this case meet constitutional and statutory

requirements of notice and form and are, therefore, valid.



      Petition er’s petition may be dism issed su mm arily if the petition fails to state

a cogniza ble claim . See Passa rella v. State , 891 S.W .2d 619 , 627 (T enn. Crim.

App. 1994); Tenn. Code Ann. § 29-21-109. The trial court properly dismissed

Petitioner’s petition.



      Accordingly, the judgment of the trial court is affirmed.



                                 ____________________________________
                                 THOMAS T. W OODALL, Judge


CONCUR:



___________________________________
DAVID H. WELLES , Judge


___________________________________
DAVID G. HAYES, Judge




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