              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                        AT JACKSON

                              NOVEMBER 1997 SESSION
                                                                      FILED
                                                                 January 12, 1998
ROGER LEE KIMMEL,                   *      C.C.A. NO. 02C01-9701-CR-00006
                                                                Cecil Crowson, Jr.
       APPELLANT,                   *      SHELBY COUNTY         Appellate C ourt Clerk


VS.                                 *      HON. JOSEPH B. DAILY, JUDGE

STATE OF TENNESSEE,                 *      (Writ of Habeas Corpus)

       APPELLEE.                    *



                                CONCURRING OPINION

               I agree with the majority opinion that the indictment is sufficient to

support the conviction for aggravated sexual battery. I reach this conclusion,

however, on a different basis. I believe that the language within the charging

instrument suggests that the unlawful act was done intentionally, knowingly, or

recklessly. Tenn. Code Ann. § 39-11-301(c)(1991).



               In State v. Roger Dale Hill, Sr., _____S.W.2d_____, No. 01S01-9701-

CC-00005, slip op. at 3 (Tenn., at Jackson, Nov. 3, 1997), our supreme court ruled

as follows:

               [F]or offenses which neither expressly require nor plainly
               dispense with the requirement for a culpable mental
               state, an indictment which fails to allege such mental
               state will be sufficient to support prosecution and
               conviction for that offense so 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 judgment, and protection from double
                   jeopardy;

                   (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.



              In Hill, of course, the supreme court reviewed the sufficiency of an

indictment charging rape. Here, the indictment is for aggravated sexual battery.

Nonetheless, the ruling by our supreme court should control; the mens rea can be

"logically inferred" from the allegations within the indictment.



              In State v. Milton S. Jones, Jr., No. 02C01-9503-CR-00061, slip op. at

5 (Tenn. Crim. App., at Jackson, Mar. 7, 1997), perm. to app. filed (May 6, 1997),

our court reviewed the sufficiency of an indictment identical to the one in this case:

              While there is no specific allegation of the requisite mens
              rea, we find that the term 'sexual contact' does
              necessarily imply an intentional touching of the underage
              victim. ... Because sexual contact is defined as
              intentional touching, the mens rea is necessarily implied.

The "logically inferred" test for indictments is less demanding than one requiring a

necessary implication. Thus, the allegations here would pass the standard adopted

in Hill.



                                           __________________________________
                                           Gary R. Wade, Judge
