                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                   AT JACKSON
                              JANUARY 1998 SESSION


ESTES ANDERSON,                                    )
                                                   )
        Petitioner,                                ) C. C. A. NO. 02C01-9704-CC-00141
                                                   )
vs.

BILLY COMPTON, WARDEN,
                                                   ) LAKE COUNTY
                                                   )
                                                   ) No. 97-7595
                                                                                  FILED
                                                   )
                                                                         January 30, 1998
        Respondent.                                )
                                                                                 Cecil Crowson, Jr.
                                                                                  Appellate C ourt Clerk

                                                 ORDER



                 On January 3, 1991, the petitioner was indicted on one count of

aggravated rape. The petitioner was subsequently convicted of aggravated rape and

he received a sentence of twenty years. On February 28, 1997, the petitioner filed a

petition for a writ of habeas corpus challenging the sufficiency of the indictment. The

trial court denied relief.



                 On appeal, the petitioner, relying in part upon this Court’s decision in

State v. Roger Dale Hill, argues that the indictment is invalid because it failed to assert

an essential element of the offense, i.e., the mens rea, and that his conviction,

therefore, cannot stand.1 The Supreme Court has since released its opinion in Hill,

which controls our resolution of the issue at hand.



                 T.C.A. § 39-11-301(b) provides that “[a] culpable mental state is required

[to establish an offense] unless the definition of an offense plainly dispenses with a

mental element.” The statute further states that “[i]f the definition of an offense . . .

does not plainly dispense with a mental element, intent, knowledge, or recklessness

suffices to establish the culpable mental state.” T.C.A. § 39-11-301(c). In State v. Hill,

No. 01S01-9701-CC-00005 (Tenn., Nov. 3, 1997), our Supreme Court held that for

offenses which neither expressly require nor plainly dispense with the requirement for a

        1
          The petitioner also claims that the trial judge erred in finding that the sufficiency of an indictment
cannot be challenged in a habeas corpus proceeding. Because we find the indictment in this case valid,
we n eed not a ddre ss th at cla im.
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 T.C.A. § 40-13-
       202; and

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


       The indictment in the present case charged that the petitioner “did unlawfully

sexually penetrate [the victim], a person, less than thirteen (13) years of age, in

violation of Section 39-13-502 of the Tennessee Code Annotated.” At the time of the

offense in this case, aggravated rape was defined as the unlawful sexual penetration of

a victim by the defendant or the defendant by a victim accompanied by several

enumerated aggravating circumstances, including that the victim is under the age of

thirteen. T.C.A. § 39-13-502 (1991).



              This statute does not contain a mental state nor does it plainly dispense

with one, and the indictment failed to allege either intent, knowledge, or recklessness.

Accordingly, in order to be sufficient, the mental state must be logically inferred from the

conduct alleged in the indictment. The language of the indictment before us is almost

identical to the language the Supreme Court found valid in the Hill case. As the

Supreme Court stated, “[o]bviously, the act for which the defendant is indicted,

‘unlawfully sexual penetrat[ing]’ a person under the age of thirteen, is committable only

if the principle actor’s mens rea is intentional, knowing, or reckless.”



              Accordingly, since the mental state can be inferred from the conduct

alleged, the indictment in this case is valid. It is therefore ORDERED that the judgment

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

Appeals.




                                              2
          Enter, this the ___ day of January, 1998.




                                     _______________________________
                                     JOE B. JONES, PRESIDING JUDGE


CONCUR:



_____________________________
PAUL G. SUMMERS, JUDGE



_____________________________
DAVID G. HAYES, JUDGE



_____________________________
JOE G. RILEY, JUDGE




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