         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                            MARCH SESSION , 1999         April 21, 1999

                                                     Cecil W. Crowson
AARON BRYANT,                  )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9801-CR-00038
                               )
      Appe llant,              )
                               )
                               )    DAVIDSON COUNTY
VS.                            )
                               )    HON. SETH NORMAN,
STATE OF TENNESSEE,            )    JUDGE
                               )
      Appellee.                )    (Habeas Corpus, Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

ROGER K. SMITH                      JOHN KNOX WALKUP
104 W oodmo nt Boulevard            Attorney General and Reporter
Nashville, TN 37205
                                    MARVIN E. CLEMENTS, JR.
WIL LIAM M . KALU DIS               Assistant Attorney General
211 T hird Aven ue No rth           425 Fifth Avenu e North
Nashville, TN 37201                 Nashville, TN 37243

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    STEVE DOZIER
                                    Assistant District Attorney General
                                    Washington Square, Suite 500
                                    222 Se cond A venue N orth
                                    Nashville, TN 37201



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defen dant, Aa ron Brya nt, appeals the denial of his petition s for post-

conviction and habeas corpus relief. Defendant pleaded guilty on February 2,

1995 to aggravated sexual battery, and the trial court sentenced him to ten years

as a Range I offender. On September 20, 1996, he filed a petition for po st-

convic tion relief challenging the validity of the indictment returned by the

Davidson County Grand Jury for failing to state the applicable mens rea. On

October 30, 1996, Defendant filed an amended petition for writ of habeas corpus.



       Both petitions were denied by the trial court on December 17, 1997.

Defendant initially appealed only the denial of post-conviction relief, but this Court

permitted the filing of a substitute brief, which addressed only the denial of

habeas corpus relief. W e addre ss both issues and find no merit to either petition.

We affirm the tria l court’s de nial of pos t-conviction and ha beas c orpus re lief.



       As the State correctly notes, Tennessee Code Annotated § 40-30-202

granted Defendant one year from May 10, 199 5 in which to file a petition fo r post-

conviction relief. However, his petition was filed on Septem ber 20, 1996 , more

than four months past the expira tion of th e statu te of lim itations . Ther efore, h is

petition was time-barred, and the trial court properly denied relief on that basis.



       W ith respect to his petition for writ of habeas corpus, Defendant argues

that the indictment charging him with aggravated sexual battery was defective for

lack of stating a particular mens rea. He contends that because the indictment



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was fatally flawed, the trial court lacked jurisdiction to accept his plea of guilty and

to convict h im of the o ffense.



       The State argues (1) that this Court cannot properly consider the issue

because the indictment is not contained in the record, and (2) that this issue, if

addressed on the merits, has been squarely res olved a gains t Defe ndan t’s

position by the Tennessee Supreme Cour t’s recent decision in Ruff v. Sta te, 978

S.W.2d 95 (Tenn. 1998). W e agree with both assertions.



       The record on appeal does not co ntain a copy of the indictment; and we

previo usly denied De fendant’s m otion to supplem ent the record with the

indictment on the authority of Tennessee Rule of Appellate Procedure 13(c),

which perm its this Court to consider “those facts e stablis hed b y the ev idenc e in

the trial court an d set forth in the reco rd and a ny addition al facts that may be

judicia lly noticed o r are con sidered pursua nt to Rule 14.” Bec ause n either this

Court nor the trial court can properly address the merits of Defendant’s argument

due to his omission of the indictment, we affirm the trial court’s dismissal of

Defen dant’s pe tition for hab eas co rpus relief.



       Nevertheless, even if the indictment in this case is consistent with the

portion quoted by Defendant in his brief and petition—

       [Defen dant,] on a day in 1993 in Davidson County, Tennessee, and
       before the finding of this indictm ent, did engage in unlawful sexual
       contact with [D.H .],1 a child less than thirteen (13) ye ars of a ge, in




       1
           Due to the victim’s age and the nature of the offense, we identify the victim by initials.

                                                 -3-
violation of T .C.A. 39 -13-504 , and ag ainst the p eace a nd dign ity of
the State of Tennessee

—the indictment is valid to confer jurisdiction upon the trial court in this case.



       The recent supreme court ca se of Ruff v. Sta te, 978 S.W.2d 95 (Tenn.

1998), squarely resolves the case at bar. In that case, the defendant challenged

under State v. Hill, 955 S.W.2d 725 (Tenn. 1997), the validity of an indictment for

aggravated sexual battery—the same offense at issue in this case.                 The

indictment read:

       GEORGE ANTHONY RUFF, on the 27 th day o f Marc h, 199 1, in
       Blount County, Tennessee, did unlawfully engage in sexual contact
       with [A.K.], a person less than thirteen (13) years of age, in violation
       of Tennessee Co de An notate d, Sec tion 39 -13-5 04, all o f which is
       against the peace and dignity of the State of Tennessee.

Ruff, 978 S.W.2d at 96-97 (alteration in original). Following an application of the

factors noted in Hill, the Ruff court con cluded that “the ind ictmen t against R uff

clearly satisfies the requirements set forth in Hill, and the conviction based on it

is valid.” Id. at 97-98. This issue, if addressed on its merits, does not render the

conviction at bar void.



       We conclude that the trial court properly denied Defendant’s petitions for

post-co nviction and habe as co rpus re lief. The judgm ent of th e trial co urt is

affirmed.



                                   ____________________________________
                                   DAVID H. WELLES, JUDGE




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CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
JOHN EVERETT WILLIAMS, JUDGE




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