                   IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                                   AT JACKSON



CHARLES R. SMITH,                                       )
                                                        )
         Petitioner,                                    ) C. C. A. NO. 02C01-9708-CC-00311
                                                        )
vs.                                                     ) LAUDERDALE COUNTY
                                                        )
ALTON HESSON, WARDEN,                                   ) No. 4972
                                                        )
         Respondent.                                    )



                                                     ORDER



                  This matter is before the Court upon the state’s motion to affirm the

judgment of the trial court in accordance with Rule 20, Rules of the Court of Criminal

Appeals. In March 1991, the petitioner was indicted on one count of rape and one

count of sexual battery. Though the judgment is not contained in the record, it appears

the petitioner was subsequently convicted of rape and sexual battery, and received an

effective sentence of thirteen years. On June 18, 1997, the petitioner filed a petition for

a writ of habeas corpus challenging the sufficiency of the indictment entered against

him. The trial court denied relief.



                  On appeal, the petitioner argues that the indictment is invalid because it

failed to assert an essential element of the offenses, i.e., the mens rea, and that his

convictions, therefore, cannot stand.1



                  At the time of the offenses in this case,2 rape was the unlawful sexual

penetration of another accompanied by several enumerated circumstances, including

that force or coercion was used to accomplish the act. T.C.A. § 39-2-604 (1982).

Sexual battery was the unlawful sexual contact with another person accompanied by


         1
           The petitio ner a lso cla ims that th e trial ju dge erred by dism issin g the petitio n bef ore h e cou ld
respond to the state’s motion to dismiss. Because we find that the indictment in this case is valid, we
nee d not addr ess that c laim .

         2
           Although the petitioner was indicted in March 1991, the petitioner was charged with committing
the offen ses in F ebruary 1 988.
several enumerated circumstances, including that force or coercion was used to

accomplish the act. T.C.A. § 39-2-607 (1982). The indictment at issue before us

charged that the petitioner did “unlawfully and feloniously sexually penetrate [the victim]

. . . by the use of force or coercion” and did “unlawfully and feloniously have sexual

contact with [the victim] . . . by force or coercion.”



                   This language was sufficient under the law as it existed at the time. The

statutory requirements for an indictment were found in § 40-13-202, which provided

simply that:


                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.



Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973) (emphasis

supplied), while addressing the sufficiency of an indictment charging the offense of

murder, our Supreme Court stated the following:


                  While it seems clear that the indictment in Witt was insufficient in
         that it failed to charge an element, that the murder was committed
         unlawfully, in either the language of the statute or common law or words
         of equivalent import, the decision is confusing because of the language,
         ‘fatally defective in omitting the charge that the offense was committed
         feloniously, or with malice aforethought; and containing no words of
         equivalent import.’ It is clear, however, that had the indictment used the
         words ‘feloniously’ or ‘unlawfully’, it would have been sufficient.



We agree with this proposition. By containing the words found in the language of the

statute, the indictment at issue here sufficiently apprised the appellant of the offense

charged under the law at the time, and is therefore valid.



                   Although not controlling in the present case,3 the Supreme Court’s recent



         3
             The decision in Hill is based upon the Court’s interpretation of T.C.A. § 39-11-301, which was
ena cted in 198 9. Th at sta tute p rovid es, in pertin ent p art, th at “[a] culpa ble m enta l state is req uired within
this title unless the definition of the offense plainly dispenses with a mental element.” Prior to 1989,
however, the Criminal Code did not contain a comparable provision.

                                                             2
opinion in State v. Hill, No. 01S01-9701-CC-00005 (Tenn., Nov. 3, 1997) supports our

conclusion. The Court stated that “an indictment need not conform to traditionally strict

pleading requirements” and that “in modern practice, it is unnecessary to charge guilty

knowledge unless it is included in the statutory definition of the offense.” Moreover,

having reviewed the language of the indictment in this case, we find that it would suffice

under the Supreme Court’s analysis of the current statutory requirements of notice and

form.



              Accordingly, we find that the indictment at issue meets constitutional and

the then-existing statutory requirements, and is therefore valid. It is therefore

ORDERED that the judgment of the trial court is affirmed in accordance with Rule 20,

Rules of the Court of Criminal Appeals.



              Enter, this the ___ day of December, 1997.




                                          ___________________________
                                          PAUL G. SUMMERS, JUDGE



                                          ___________________________
                                          JOE B. JONES, PRESIDING JUDGE



                                          ___________________________
                                          DAVID G. HAYES, JUDGE




                                             3
