         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                         FEBRUARY SESS ION, 1998           May 20, 1998

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

JAMES K. ROBBINS,                 )   C.C.A. NO. 03C01-9703-CC-00108
                                  )
           Appe llant,            )
                                  )   BLEDSOE COUNTY
V.                                )
                                  )
                                  )   HON. LEE ASBURY, JUDGE
STATE OF TENNESSEE,               )
                                  )
           Appellee.              )   (HABEAS C ORPU S)



FOR THE APPELLANT:                    FOR THE APPELLEE:

JAME S K. R OBB INS, pro se           JOHN KNOX WALKUP
#114297, S.T.S.R.C.F.                 Attorney General & Reporter
Route 4, Box 600
Pikeville, TN 37367                   TIMOTHY F. BEHAN
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      J. MICHAEL TAYLOR
                                      District Attorn ey Ge neral

                                      JAME S W. P OPE , III
                                      Assistant District Attorney General
                                      First American Bank Bldg., 3rd Floor
                                      Dayton, TN 37321




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Petitioner, James K. Robb ins, appea ls as of r ight from the trial c ourt’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 and aggravated

assa ult by the Scott County Grand Jury on July 15, 198 6. Follo wing a jury trial,

Petitioner was convicted on four (4) counts of aggravated rape and one (1) count of

aggravated assault.      The trial court sentenced him as a Range II especially

aggravated offender to terms of forty (40) years on each aggravated rape conviction

and six (6) years on the aggravated assault conviction, all to be served concurrently.

On October 22, 1996, Petitioner filed a petition for habeas corpus relief which is the

subject of this appeal, challenging his four (4) aggravated rape convictio ns. In

essence, Petitioner argues that his sentence s are void because the culpable mental

state for the offense of aggravated rape was not alleged in the indictments and that

the statute under w hich he w as con victed is un constitution al.



       The ind ictmen ts agains t Petitioner re ad as follo ws:

       [O]n or abo ut 198 4 throu gh Ap ril, 1986, in the Co unty and State
       aforesaid, the said James K. Rob bins d id unla wfully an d felon iously
       engage in sexual pe netration with [victim], a female child under the age
       of 13 years, and d id there by com mit an aggra vated rape a gains t said
       child, against the peace and dignity of the State of Tennessee.


In support of his argument regarding the allegedly insufficient indictments, Petitioner

relies upon the decision of this Co urt in State v. Rog er Da le Hill, C.C.A. No. 01C01-

9508-CC-00267, W ayne Coun ty (Tenn. Crim . App., Nash ville, June 20, 1996 ).



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However our supreme court reversed this Court’s decision in Hill. See State v. Hill,

954 S.W .2d 725 (Tenn . 1997).



       Furthermore, a panel of this Court has previously held in a similar case that

the ruling of this Court in State v. Rog er Da le Hill, was based upon an interpretation

of Tennessee Code Annotated section 39-11-301(c), which was enacted in 1989.

See Gregory L. Hatton v. State of Tennessee, C.C.A. NO. 02C01-9611-CC-00407,

slip op. at 2, La ke Co unty (T enn. C rim. A pp., Ja ckso n, Feb . 19, 19 97). A s in Hatton,

Petitioner was convicted of an offense which occurred prior to enactment of the 1989

revisions to the Criminal Code. The statute under which Petitioner was convicted

defined aggravated rape in part as the “unlawful sexual penetration of another

accompanied by any of the following circumstances” including the age of the vic tim

being less than thirteen yea rs. Tenn. Code Ann. § 39-2-603(a)(4) (repealed 1989).

The statutory requirements for an indictment alleging this or any other crim e were

found in Tennessee Code Annotated section 40-13-202 (repealed 1989) and read

as follows :

       The indictment must state the facts constituting the offens e in ordinary
       and concise language, without prolixity or repetition, in such a manner
       as to enable a person of com mon unde rstand ing to k now w hat is
       intended, and with that degree of certainty which will enable the court,
       on con viction, to pro nounc e the pro per judg ment.

W e conc lude th at the la ngua ge in the indictment charging Petitioner with aggravated

rape meets these requirements, and was therefore sufficient u nder th e law a s it

existed at the time of the offenses.




       Moreover, even if Hill did apply to the instan t indictment, we think the

allegation that Petitioner “did unlawfully and feloniously engage in sexual penetration


                                             -3-
with [victim], a female child under the age of 13 years, and did thereby com mit an

aggravated rape against said child” is sufficient to allege any necessary culpable

mental state. Obviously, the act for which Petitioner is indicted, unlawfully and

felonio usly enga ging in sexual pe netratio n with a thirteen -year-o ld child, is

“com mittab le only if the principal actor’s mens rea is intentional, knowing, or

reckless.” Hill, 954 S.W .2d at 729 .   This issu e is withou t merit.



       Petitioner also argues that the statute und er whic h he w as co nvicted is

unconstitution al. However, that particular statute has repeatedly been held to be

cons titutiona l. See, e.g., State v. Wilkins, 655 S.W.2d 914 (Tenn . 1983). This issue

is without m erit.



       Petition er’s petition may be dismissed summarily if the petition fails to state

a cogniza ble claim . See Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.

App. 1994); Ten n. Code A nn. § 29-21-1 09. The trial court properly dismissed

Petitioner’s petition.



       The judgment of the trial court is affirmed.




                                          -4-
                         ____________________________________
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
WILLIAM B. ACREE, JR., Special Judge




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