              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON                    FILED
                                                                       April 9, 1997
JOHNNY W. BROWN,                          )
                                                               Cecil Crowson, Jr.
                                          )                     Appellate C ourt Clerk
       Petitioner,                        ) C. C. A. NO. 02C01-9612-CC-00463
                                          )
vs.                                       ) LAKE COUNTY
                                          )
STATE OF TENNESSEE,                       ) No. 96-7556
                                          )
       Respondent.                        )



                                        ORDER



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

judgment of the trial court under Rule 20, Rules of the Court of Criminal Appeals. The

case before this Court represents an appeal from the trial court’s denial of the

petitioner’s petition for writ of habeas corpus. The record was filed on December 17,

1996, and the petitioner was allowed to late-file his brief on February 5, 1997. The

petitioner was originally indicted on one count of aggravated rape in February 1985,

and was apparently convicted of the same in December 1985. In the present appeal,

the petitioner, relying in part upon State v. Roger Dale Hill, No. 01C01-9508-CC-00267

(Tenn. Crim. App. June 20, 1996), contends the judgment entered against him is void

because the indictment failed to allege the mens rea of the offense charged.



              Having reviewed the state’s motion in light of the petitioner’s response

and the entire record on appeal, we conclude that the motion is well-taken and should

be granted. The trial judge dismissed the petitioner’s petition stating that “[a]llegations

concerning the insufficiency of an indictment are not subject to habeas corpus relief.” It

is well established that challenges to the sufficiency of an indictment cannot be tested

in a habeas corpus proceeding. See Haggard v. State, 475 S.W.2d 186, 187 (Tenn.

Crim. App. 1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). A

panel of this Court recently held the same in a capital case. Barber v. State, No.

01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 1995).
               Nonetheless, we have considered the substance of the petitioner’s claim

and determine it to be without merit. Hill represents a direct appeal from a case

involving an indictment rendered subsequent to the 1989 revisions to the Criminal

Code. Conversely, the appeal in the present case stems from a denial of a petition for

writ of habeas corpus and involves an indictment issued prior to the 1989 changes in

the Code. The opinion in Hill was based upon this Court’s interpretation of T.C.A. § 39-

11-301(c), which was enacted in 1989. That statute provides, in pertinent part, that “[a]

culpable mental state is required within this title unless the definition of the offense

plainly dispenses with a mental element.” Prior to 1989, however, the Criminal Code

did not contain a comparable statute. Accordingly, the decision in Hill does not control

our review of the issue raised herein.



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

the “unlawful sexual penetration of another accompanied” by certain enumerated

aggravating circumstances, including that the defendant was aided or abetted by one or

more other persons and force or coercion was used to accomplish the act. T.C.A. § 39-

2-603 (1982). The indictment at issue before us charged that the petitioner and two

others “unlawfully and feloniously did have sexual penetration of [the victim],

accompanied by the circumstances that the Defendants were aided and abetted by

each other and force or coercion were used to accomplish the act.” This language was

sufficient under the law as it existed at the time. As noted above, the Criminal Code did

not contain a provision similar to § 39-11-301(c) (1989). The statutory requirements for

an indictment were found in § 40-1802 (now § 40-13-202 (1990)), 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



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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 appellant of the offense

charged under the law at the time, and is therefore valid. Thus, the petitioner’s attack

must fail.



              For the reasons stated above, it is hereby ORDERED, pursuant to Rule

20, Rules of the Court of Criminal Appeals, that the judgment of the trial court

dismissing the petition for writ of habeas corpus is affirmed. Costs of this appeal shall

be assessed against the petitioner.




              Enter, this the ___ day of March, 1997.




                                           __________________________________
                                           DAVID G. HAYES, JUDGE




                                           __________________________________
                                           JOE B. JONES, PRESIDING JUDGE




                                           __________________________________
                                           PAUL G. SUMMERS, JUDGE




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