      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE              FILED
                      NOVEMBER 1997 SESSION        December 10, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
WENDALL S. RUSSELL,
                                ) C.C.A. No. 03C01-9701-CR-00006
      Appellant,                )
                                ) Johnson County
V.                              )
                                ) Honorable Lynn W . Brown, Judge
                                )
HOWARD CARLTON, WARDEN,         )
& STATE OF TENNESSEE,           )
                                ) (Habeas Corpus-Rape)
      Appellee.                 )




FOR THE APPELLANT:              FOR THE APPELLEE:

Mark H. Toohey                  John Knox Walkup
Attorney at Law                 Attorney General & Reporter
158 Cherokee Street
Kingsport, TN 37660             Michael J. Fahey, II
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                David E. Crockett
                                District Attorney General
                                Route 19, Box 99
                                Johnson City, TN 37601



OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                              OPINION
        The appellant, Wendall S. Russell, was convicted by a jury of rape. He

was sentenced to fifteen years incarceration in the Tennessee Department of

Correction. He, thereafter, filed a petition for habeas corpus relief. In his petition

he alleged that the indictment against him was insufficient for failing to allege a

mens rea. He contends his conviction is void. The trial court dismissed the

petition finding that it was not proper for habeas corpus review. The trial court

based this finding on the fact that the appellant’s conviction was not void on its

face and that his sentence had not expired. He appeals this dismissal. Upon

review, we affirm.



        The appellant contends that the indictment against him did not sufficiently

allege the mens rea for aggravated rape.1 The appellant bases his theory on

State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, filed

June 20, 1996). The Tennessee Supreme Court has recently reversed Hill

holding that the indictment was constitutionally and statutorily valid. State v. Hill,

No. 01-S-01-9701-CC-00005 (Tenn. Nov. 3, 1997). The Court held the following:



        [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




         1
           The indictment against the appellant stated that he “did unlawfully and feloniously, and
against his will, have sexual penetration of [the victim] with said act being accomplished by force or
coercion and the defendant being armed with a deadly weapon or an article used or fashioned in a
manner to lead the victim reasonably to believe it to be a weapon, all contrary to T.C.A. § 39-2-603
. . . .”

                                                  -2-
                      (3) the mental state can be logically
                      inferred from the conduct alleged.

Id. at 3.



        In this case sub judice, we find that the appellant’s indictment sufficiently

alleged the elements of aggravated rape and was constitutionally and properly

drafted. The facts as alleged in the indictment make the mental state required

for conviction logically obvious. The appellant was fully apprised of the charges

against him in ordinary and concise language. His indictment gave the

convicting court an adequate basis for subject matter jurisdiction. Therefore, the

appellant’s conviction is not void and is improper for habeas corpus review.


        Accordingly, we find no error of law mandating reversal. The judgment of

the trial court is affirmed.




                                                   __________________________
                                                   PAUL G. SUMMERS, Judge


CONCUR:


                                          -3-
______________________________
JOSEPH B. JONES, Presiding Judge




______________________________
J. CURWOOD WITT, Judge




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