        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                          OCTOBER SESSION, 1997       December 23, 1997

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
DARRE LL DO UGLAS             )    C.C.A. NO. 03C01-9701-CR-00031
SHEETS,                       )
                              )
      Appellee,               )
                              )    JOHNSON COUNTY
VS.                           )
                              )    HON. LYNN BROWN
HOWARD CARLTON,               )    JUDGE
WARDEN, and                   )
STATE OF TENNESSEE            )
                              )
      Appe llant.             )    (Habeas Corpus)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF JOHNSON COUN TY


FOR THE APPELLANT:                 FOR THE APPELLEE:

DARRELL D. SHEETS                  JOHN KNOX WALKUP
Pro Se                             Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683            MICHAEL J. FAHEY
                                   Assistant Attorney General
                                   425 5th Avenu e North
                                   Nashville, TN 37243

                                   C. BERKELEY BELL
                                   District Attorney General
                                   Route 19, Box 99
                                   Johnson City, TN 37601



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION

        The Petitioner, Darrell Douglas Sheets, appeals the trial court’s order

denying him habeas corpus relief.         He was indicted for and convicted of

aggravated rape. He argues that his conviction is void because the indictment

charging him with the offen se of aggrava ted rape is fatally defective beca use it

failed to allege the requisite mens rea. W e affirm the judgm ent of the trial court

dismissing the petition.



        In his habeas corpus petition, the Petitioner alleges that the indictment

failed to specify the mens rea for the offense of aggravated rape a nd thu s, his

conviction was void. The Petitioner was indicted for aggravated rape on May 4,

1992.    He plea ded gu ilty to that offense on September 23, 1992, and was

sentenced to fifteen years incarcera tion. He filed a petition for writ of habeas

corpus on August 19, 1996. The trial court dismissed the petition on September

9, 1996, without a hearing. The Petitioner filed a motion to set aside the order of

dismissal and a motion for entry of findings of fact and conclusions of law on

October 1, 1996 . The trial court denied the motion on December 10, 1996. The

Petitioner now appeals.



        The Petitioner a rgues th at his convic tion for a ggrav ated ra pe is vo id

because the indictment did not allege the requisite mens rea for the offense. An

indictment or presentment must provide notice of the offense charged, an

adequ ate basis for the entry of a proper judgment, and suitable protection against

doub le jeopard y. State v. Trusty, 919 S.W .2d 305 , 310 (T enn. 19 96); State v.



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Byrd, 820 S.W.2d 739, 741 (Tenn . 1991);        State v. Lindsay, 637 S.W.2d 886,

890 (Tenn. Crim . App. 1982 ). The indictme nt “must state the facts in ordinary

and concise language in a manner that would enable a person of common

understanding to know what is intended, and with a degree of certainty which

would enable the cour t upon co nviction, to pronoun ce the prope r judgmen t.”

Warden v. State, 381 S.W.2d 244, 245 (Tenn. 1964); Tenn. Code Ann. § 40-13-

202.



       A lawful accusation is an essential jurisdictiona l elemen t, thus, a

prosecution canno t procee d withou t an indictm ent that su fficiently informs the

accused of the essential eleme nts of the o ffense. State v. Perkinson, 867 S.W.2d

1, 5 (Tenn. Crim. App . 1992); State v.Morgan, 598 S.W.2d 796, 797 Tenn. Crim.

App. 1979).    A judgment based on an indictment that does not allege all the

essential eleme nts of the o ffense is a nullity. Wa rden v. Sta te, 381 S.W .2d at

245;    McCracken v. State, 489 S.W .2d 48, 53 (T enn. Crim. A pp. 1972).

Furthermore, the Tennessee Code provides that "[i]f the definition of an offense

within this title does not plainly dispense with a m ental elem ent, intent,

knowledge, or recklessness suffices to es tablish the culpable menta l state."

Tenn . Code Ann. § 3 9-11-30 1(c).



       The Petitioner c ites a rece nt decisio n of a pane l of this Court that held an

indictment invalid which charged the offense of aggravated rape in language

nearly identical to that in the case sub judice. See State v. Rog er Da le Hill,

C.C.A. No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App., Nashville,

June 20, 199 6), rev’d, ___ S.W.2d ___ (Tenn. 1997).             He argues that the

indictment fails to assert a reckless, knowing or intentional mental state as

                                          -3-
required by Tennessee Code Annotated section 39-11-301(c). The indictment

reads as follows:

   The Gran d Juro rs of the afores aid Sta te and Coun ty duly empaneled and
   sworn, upon their oa th, pres ent tha t: Darre ll Douglas Sheets between
   November 1991 and February, 1992 in the State and County aforesaid,
   and before the finding of the indictment, did unlawfully have sexual
   penetration of [A.M.L.], a victim less than 13 years of age, contrary to the
   statute, and all of w hich is ag ainst the p eace a nd dign ity of the State of
   Tennessee.


      Our supreme court recen tly provid ed gu idanc e on th is issue in its opinion

reversing Hill:

   for offenses which neither ex pressly re quire no r plainly dispe nse with the
   requirement for a culpable mental state, an indictment which fails to allege
   such me ntal state will be sufficient to supp ort prosecution and conviction
   for that offense so long as

      (1) the language of the indictment is sufficient to meet the
      cons titutional requirements of notice to the accused of the charge
      against which the accused mus t defen d, ade quate basis for entry of
      a proper judg ment, and protection from d ouble jeopa rdy;
      (2) the form of the indictment meets the requirements of Tenn. Code
      Ann. § 40-13-202; and
      (3) the mental state can be logically inferred from the conduct
      alleged.


Hill, ___ S.W .2d ___ (Te nn. 1997).



      Here, the indictment clearly satisfies the constitutional notice requirements.

There was adequate notice that the Defenda nt was charg ed with the statutory

offense of aggravated rape as codified in Tennessee Code Annotated section

39-13-502(a)(4) (1991), which contained the essential elements of the offense.

Here too, is su fficient in forma tion by w hich th e trial judge could pronounce

judgment for the     offen se of agg ravated ra pe.     Fina lly, the Defe ndan t is

adeq uately protected against a second prosecution for an offense of aggravated




                                         -4-
rape of the victim occurring during the period of No vember 1 991 to Feb ruary

1992.



        Regarding the second requirement, it is also apparent that the indictment

was drafted such that a person of ordinary intelligence could un derstan d with

what offense he was charged. The language in the indictment clearly tracks the

language of the statute. Likewise, the third requirement, that the m ental state

be logically inferred from the indictment, has been satisfied. One can infer from

the charged act that the Petitioner “did unlawfully have sexual penetration”, that

the required mental state of reckless, knowing, or intentional was present in the

nature o f the allege d crimina l conduc t. Hill, ___ S.W.2d at ___. Therefore, we

conclude that the indictment in this case adequately informed the Defendant of

the charg es ag ainst h im and does not provide sufficient grounds for his claim for

habea s corpu s relief.



        According ly, we affirm the judgm ent of the tria l court dismissing the

petition.



                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
JERRY L. SMITH, JUDGE

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