        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE

                                   AUGUST 1997 SESSION
                                                                   FILED
                                                                    August 22, 1997

                                                                   Cecil Crowson, Jr.
                                                                   Appellate C ourt Clerk




THOM AS V. CASE                          )     C.C.A. NO. 01C01-9610-CC-00444
                                         )
       Appellant                         )     DICKSON COUNTY
                                         )
VS.                                      )     Hon. Robert E. Burch, Judge
                                         )
STATE OF TENNESSEE                       )
                                         )     (Post-Conviction)
       Appellee.                         )




FOR THE APPELLANT:                             FOR THE APPELLEE:

THOM AS V. CASE, PRO SE                        JOHN KNOX WALK UP
South Central Corrections Center               Attorney General and Reporter
P.O. Box 279
Clifton, Tennessee 38425-0279                  LISA A. NAYLOR
                                               Assistant Attorney General
                                               450 James Robertson Parkway
                                               Nashville, Tennessee 37243-0493

                                               DAN ALSOBROOKS
                                               District Attorney General
                                               P.O. Box 580
                                               Charlotte, Tennessee 37036




OPINION FILED:____________________




AFFIRMED




JOE H. WALKER, III
Sp. JUDGE
                                              OPINION


       Petitioner, Thomas V. Case, appeals the order of the Circuit Court of Dickson County

summarily dismissing his petition for post-conviction relief.

       Petitioner was convicted for aggravated sexual battery (T.C.A. 39-13-504)1 on September

1, 1993, after entering a plea of nolo contendere, and is serving a ten year sentence.

        Petitioner entered the plea reserving the right to appeal a certified question of law. On

April 28, 1994, the Court of Criminal Appeals of Tennessee, affirmed the conviction. State

v.Case, 884 S.W.2d 146 (Ct. Crim. App. 1994).

       The petition for post-conviction relief was filed August 15, 1996.

       On September 30, 1996, the court entered an order denying post-conviction relief.




        The petitioner contends that the indictment must be dismissed under the recent opinion of

State v. Roger Dale Hill, because the indictment fails to include a specific mens rea, and merely

states the defendant acted “unlawfully”.

       The indictment in this case charged in relevant part that the petitioner on or about the 8th

day of January, 1993, in the county of Dickson, unlawfully, willfully, and feloniously did have

unlawful sexual contact with another, a named minor, and that the victim was less than thirteen

years of age.




                                               I.




       Petitioner contends the indictment charging aggravated sexual battery was fatally defective

in that it did not contain the requisite mens rea element of the offense. Petitioner relies upon State

v. Hill, 1996 Tenn. Crim. App. LEXIS 369, C. C. A. No. 01C01-9508-CC-00267 (Tenn. Crim.

App. filed June 20, 1996, at Nashville). The petitioner did not raise this issue in the trial court.


       1
        The indictment in this case alleges violation of T.C.A. 39-14-504, which is not the proper
code section. The proper cite is T.C.A. 39-13-504. The reference to a code section is deemed to
be surplusage; and the insertion of a wrong code section does not render the indictment invalid.
Cole v. State, 512 S.W.2d 598, 601-602 (Tenn. Crim. App. 1974); McCracken v. State, 489
S.W.2d 48, 51 (Tenn. Crim. App. 1972). See State v. Beal, 614 S.W.2d 77, 80 (Tenn. Crim. App.
1981).
          The defendant in Hill was charged with the offense of aggravated rape. The court

concluded that the failure of the indictment to specifically allege the mens rea was fatally

defective. T. C. A. § 40-13-202 provides as follows:

        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; and in no case are such words as "force
and arms" or "contrary to the form of the statute" necessary.


          Fair and reasonable notice of the charges against a defendant is a fundamental

constitutional requirement. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. An indictment has

three (3) purposes in Tennessee; namely, (1) to inform the defendant of the precise charges; (2) to

enable the trial court upon conviction to enter an appropriate judgment and sentence; and (3) to

protect the defendant against double jeopardy. State v. Trusty, 919 S.W.2d 305, 309 (Tenn. 1996).

The facts must be stated in ordinary and concise language so that a person of "common

understanding" will know what is intended. Warden v. State, 214 Tenn. 391, 381 S.W.2d 244

(1964).

          The indictment in this case alleged that the petitioner had unlawful sexual contact with a

named victim less than thirteen (13) years of age. The petitioner was informed by this indictment

of the precise charge. The charge was stated in ordinary and concise language so that a person of

common understanding would know what was intended. The charge clearly enabled the trial court

upon conviction to enter the appropriate judgment and sentence. Finally, the charges protected the

petitioner against any double jeopardy problems.

          For the above reasons we decline to follow Hill and find this indictment was sufficient to

charge aggravated sexual battery. Furthermore, if there had been an objection to the indictment

based upon the failure to allege a requisite mental state, it should have been raised pre-trial. See

T.R.Cr.P. 12(b)(2).

                                                     II.

          Even if Hill has vitality, it is distinguishable from the instant case. Unlike Hill, the

indictment charged that the defendant did have unlawful sexual contact with [MMN], a child less

than thirteen (13) years of age.

                  At the time of the defendant’s acts, T.C.A. 39-13-504 defined aggravated sexual

battery as unlawful sexual contact “accompanied by any of the circumstances listed in section 39-
13-502(a).” Petitioner appealed the certified question of law as to the validity of the aggravated




circumstance of the sexual battery of a child less than thirteen years of age. The Court of

Criminal Appeals, at Nashville, determined that the offense of aggravated sexual battery of a child

less than thirteen years of age was a crime in January, 1993, and remained punishable under

T.C.A. 39-13-504 as a Class B felony. State v. Case, 884 S.W.2d 146 (Ct. Crim. App. 1994).

        T. C. A. § 39-13-501(6) defines "sexual contact" as the

        ...intentional touching of the victim's, the defendant's, or any other person's intimate parts,
        or the intentional touching of the clothing covering the immediate area of the victim's, the
        defendant's, or any other person's intimate parts, if that intentional touching can be
        reasonably construed as being for the purpose of sexual arousal or gratification (emphasis
        added).

        Therefore, the mental element of "intentional" is included in the definition of "sexual

contact" and is impliedly included within the indictment. By statutory definition the only way one

can have "sexual contact" is by the "intentional" touching...for the purpose of sexual arousal or

gratification." Id.

         The state has the burden of proving the requisite culpable mental state regardless of

whether the statute does or does not set forth the culpable mental state. State v. Griffis and

Rogers, 1997 Tenn. Crim. App. LEXIS 427, No. 01-C-01-9506-CC-00201 at Nashville, April 30,

1997.

        In a prosecution for aggravated sexual battery, mere recklessness as to the age of the

victim was sufficient evidence to establish defendant’s guilt. State v. Parker, 887 S.W.2d 825

(Tenn.Crim.App. 1994).

        We, therefore, conclude that Hill is distinguishable based upon the charged offense.

The Court finds that the indictment in this case was not defective, in that it alleged the offense,

the trial court had subject matter jurisdiction, and that the post-conviction court properly

dismissed the petition.        The judgment of the trial court is AFFIRMED.




                                                               __________________________
                                                               JOE H. WALKER, III
                                                               Sp. JUDGE

CONCUR:
_______________________
JOE G. RILEY, JUDGE

______________________
J. CURWOOD WHITT, JR., JUDGE
