              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON



MICHAEL EDWARD McKINNEY,                  )
                                          )
       Petitioner,                        ) C. C. A. NO. 02C01-9611-CC-00409
                                          )
vs.                                       ) LAKE COUNTY

STATE OF TENNESSEE,
                                          )
                                          ) No. 96-7549
                                                                 FILED
                                          )                   Feb. 24, 1997
       Respondent.                        )
                                                             Cecil Crowson, Jr.
                                                                  Appellate Court Clerk


                                        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 November 14,

1996, and the petitioner filed his brief on December 4, 1996. The petitioner was

originally indicted for aggravated rape and aggravated kidnapping in January 1984, for

which the petitioner was subsequently convicted. The petitioner also claims he was

indicted for and convicted of robbery with a deadly weapon, but he has failed to include

in the record a copy of this indictment or any of the judgment sheets, thereby precluding

the Court from conducting an adequate review on this charge. 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 sufficiency 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 “[f]orce or coercion is used to accomplish the

act and the defendant is armed with a weapon.” T.C.A. § 39-2-603 (1982).

Furthermore, anyone

       who unlawfully seize[d], confine[d], inveigle[d], entice[d], decoy[ed],
       abduct[ed], conceal[ed], kidnap[ped] or carrie[d] away another with the
       felonious intent to:

       (1) Cause the other to be confined secretly against his [or her] will;
       (2) Detain the other against his [or her] will; or
       (3) Send the other out of state against his [or her] will,
       shall be guilty of aggravated kidnapping when one or more of the following
       circumstances are present:

       ...

       (C) The person secretly confined, unlawfully detained or sent out of the
       state is the victim of any felony committed on his [or her] person during
       the secret confinement, unlawful detention or carrying out of the state;
       (D) The secret confinement, unlawful detention or carrying out of the state
       is accomplished while defendant is armed with a deadly weapon.



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T.C.A. § 39-2-301(a) (1982).

       The indictments at issue before us charged that the petitioner “did unlawfully,

and feloniously and forcibly, while armed with a weapon, to-wit, a pistol, sexually

penetrate [the victim], thereby committing the offense of AGGRAVATED RAPE,” and

“did unlawfully and feloniously kidnap and carry away [the victim] with the felonious

intent to detain the said [victim] against her will,” and were armed with a deadly

weapon, and did commit the felonies of aggravated rape and robbery with a deadly

weapon while the victim was detained, “thereby committing the offense of

AGGRAVATED KIDNAPPING.” 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

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

                                              3
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 January, 1997.




                                          __________________________________
                                          JOE B. JONES, PRESIDING JUDGE




                                          __________________________________
                                          PAUL G. SUMMERS, JUDGE




                                          __________________________________
                                          DAVID G. HAYES, JUDGE




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