         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE                FILED
                        FEBRUARY 1998 SESSION              July 14, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

JAMES A. HOOPER,                  )
                                  )   No. 03C01-9704-CR-00152
          Appe llant,             )
                                  )   Morga n Cou nty
vs.                               )
                                  )   Honorable E. Eugene Eblen, Judge
STATE OF TENNESSEE,               )
                                  )   (Post-Conviction)
          Appellee.               )



FOR THE APPELLANT:                    FOR THE APPELLEE:

PRO SE                                JOHN KNOX WALKUP
                                      Attorney General & Reporter

                                      TIMOTHY E. BEHAN
                                      Assistant Attorney General
                                      Cordell Hull Bldg., Second Floor
                                      425 Fifth Avenu e, North
                                      Nashville, TN 37243-0493

                                      CHARLES E. HAWK, JR.
                                      District Attorney General

                                      FRANK A. HARVEY
                                      Assistant District Attorney
                                      P. O. BOX 703
                                      KINGSTON, TN 37763


OPINION FILED:____________________



AFFIRMED PURSU ANT TO RU LE 20


WILLIAM B. ACREE, JR.
SPECIAL JUDGE
                                         OPINION


       The appe llant, Ja mes A. Ho oper, a ppea ls as of r ight the trial cou rt’s
dismiss al of his pe tition for post-c onviction re lief. We affirm the tria l court.


       In 1992, the appellant was indicted in a multi-count indictment charging
him with aggravated rape for crimes which were committed in 1990. He was
convicted of three counts, but those convictions were reversed by the Court of
Criminal Appeals. In 1995, the appellant entered a plea of guilty to one count of
aggravated sexual battery, a lesser included offense of Count 5.


       The issue raised by the appellant is that the indictment did not allege a
culpable mental state and is invalid.1 The a ppella nt relies upon this Co urt’s
decision in State v. Rog er Da le Hill, (No. 01C01-9508-CC-00267
(Tenn.Crim.App.), filed June 20, 1996, at Nashville). This decision was reversed
by the Su preme Court at State v. Hill, 954 S.W.2d 725 (Tenn.1997). Therein, the
Supreme Court held:


       “W e hold that for o ffense s whic h neith er exp ressly re quire n or plain ly
       dispense with the requirement for a culpable mental state, an
       indictme nt which fa ils to allege s uch m ental state will be sufficien t to
       support prosecution and conviction for that offense as 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 judg ment, and protection from d ouble jeopa rdy;
       (2) the form of the indictment meets the requirement of
       Tenn.Code.Ann. §40-13-202; and
       (3) the mental state can be logically inferred from the conduct
       alleged.”

           Hill, at 726, 727.


       In Hill, the defendant was indicted for aggravated rape. The indictment
alleged that the defendant “did unlawfully sexually penetrate (the victim) a person
less than thirteen (13) years of age in violation of T.C.A. §39-13-502, all of which
is against the peace and dignity of the State of Tennessee”. The Court held that
the language of that indictment met constitutional and statutory requirements of
notice and form and was therefore valid. In the case at bar, the appellant was


       1
        The State raises the issue that the petition is barred by the statute of limitations.
However, it cannot be determined from the record when the judgment became final nor
can it be determined when the petition was filed. Consequently, this issue will not be
considered.
indicted for the sam e crime by indictm ent using the sa me langu age. Acco rdingly,
we hold that the judgment in this case is valid and affirm the dismissal of the
petition.


                                ___________________________________
                                WILLIAM B. ACREE, JR., SPECIAL JUDGE




CONCUR:


___________________________________
JERRY L. SMITH, JUDGE


____________________________________
THOMAS T. WOODALL, JUDGE
