            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                          JULY SESSION, 1998         FILED
                                                     October 13, 1998

                                                Cecil W. Crowson
DANNY R. KING,              )
                                              Appellate Court Clerk
                            )    No. 01C01-9710-CR-00487
      Appellant             )
                            )    DAVIDSON COUNTY
vs.                         )
                            )    Hon. Thomas H. Shriver, Judge
STATE OF TENNESSEE,         )
                            )    (Writ of Habeas Corpus)
      Appellee              )



For the Appellant:               For the Appellee:

Dwight E. Scott                  John Knox Walkup
4024 Colorado Avenue             Attorney General and Reporter
Nashville, TN 37209
                                 Lisa A. Naylor
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493




OPINION FILED:


AFFIRMED



David G. Hayes
Judge
                                                 OPINION



        The appellant, Danny R. King, appeals the Davidson County Criminal Court’s

dismissal of his petition for writ of habeas corpus. The appellant was originally

indicted by the Williamson County Grand Jury for aggravated rape and aggravated

kidnapping. On December 20, 1982, he was convicted of both counts and received

two concurrent life sentences. 1 He filed a pro se petition for writ of habeas corpus in

January 1997, which was subsequently amended after counsel was appointed.

Thereafter, appellant’s counsel filed a second amended petition. The trial court

dismissed the appellant’s petition finding the challenges to the indictment were

waived under Tenn. R. Crim. P. 12(b)(2) and (f) and pre-1989 offenses were not

determined according to State v. Hill, 954 S.W.2d 725 (Tenn. 1997). The trial court

also found the jury instruction was still valid law in Tennessee. The appellant

presents four issues for our review:

        1)whether he waived his right to object to the sufficiency of the
        indictment pursuant to Rule 12, Tenn. R. Crim. P.;

        2)whether the indictment was fatally defective for failure to allege the
        requisite mens rea depriving the sentencing court of jurisdiction;

        3)whether the indictment was fatally defective in that it was
        unconstitutionally vague and did not adequately apprise the appellant
        of his charges against which he had to defend;

        4)whether the jury charge concerning reasonable doubt was
        constitutionally defective inasmuch as it required a lower burden of
        proof than what is constitutionally required.




        1
         The appellant’s conviction stems from the “overwhelming evidence” in the No vember
1981 abduction and rape of Betty Hoover. He and his co-defendant, William D. Buford, were
 sentenced to two concurrent life sentences. Their convictions were affirmed on appeal to this
 court. See State v. Buford, No. 83-1 13-III, (Te nn. Crim . App. at N ashville, Fe b. 29, 198 4), perm .
to appeal denied, (Tenn. April 30, 1984). This court also denied the appellant’s post-conviction
relief. See State v. King, No. 02C 01-951 0-CC -00327 (Tenn . Crim. A pp. at Na shville, Sep t. 30,
1996).

                                                    2
                                             ANALYSIS



                            I. Grounds for Habeas Corpus Relief

        The trial court found the appellant had waived his right to challenge the

sufficiency of the indictment pursuant to Rule 12, Tenn. R. Crim. P. We disagree.

Tennessee law is well-established that habeas corpus relief is only available when a

conviction is void because the convicting court was without jurisdiction or authority to

sentence a defendant, or that a defendant’s sentence has expired and the petitioner

is being illegally restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993);

Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). In Orren v.

State, No. 03C01-9704-CR-00141 (Tenn. Crim. App. at Knoxville, Feb. 13, 1998),

this court held, in a habeas corpus proceeding, the validity of an indictment may be

challenged if it fails to properly charge an offense or the convicting court was without

jurisdiction.2 The trial court lacks the jurisdiction necessary to proceed when mens

rea is an essential element to an offense and the requisite mens rea cannot be fairly

imported from the language of the charging instrument. See State v. Hill, 954

S.W.2d 725 (Tenn. 1997); State v. Marshall, 870 S.W.2d 532, 537 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1993). Therefore, since the appellant

challenges the indictment for failure to state the requisite mens rea and failure to

properly charge an offense, we will address each in turn.




                               II. Sufficiency of the Indictment

        The first step in determining whether an indictment fails to charge an offense



        2
          We note various panels of this court have held the sufficiency of the indictment cannot be
reviewed in habeas corpus proceedings under Hagg ard v. State , 475 S.W.2d 186, 187-88 (Tenn.
Crim. App. 1971) and Brown v. State , 445 S.W .2d 669, 6 74 (Te nn. Crim . App. 196 9), cert. denied,
(Tenn . 1969). H oweve r, Haggard and Brown did no t involv e cha llenge s reg ardin g the cour t’s
subject matter jurisdiction or whether the indictment failed to state an offense. Other challenges
related to form and not substance in the indictment are waived unless raised prior to trial. Tenn.
R. Crim . P. 12(b)(2 ); see State v. Nixon, No. 02C01-9612-CC-00484 (Tenn. Crim. App. at
Jack son, De c. 3, 1997 ), perm. to appeal denied, (Tenn . 1998); T enn. Co de Ann . § 40-13 -203, -
207, -20 8 (1990 ).

                                                 3
because of the omission of the required mental state is to establish whether the

crime occurred before or after the adoption of the new criminal code, i.e., November

1, 1989. Those offenses occurring after the enactment of the current code are

governed by Hill, 954 S.W.2d at 725.3 Those offenses occurring prior to November

1, 1989, require a different analysis than that suggested by the appellant. Under the

pre-1989 Criminal Code, the required mens rea of the crime was often included in

the statutory definition of the particular offense; however, numerous statutory

offenses contained no defined mental state. Therefore, the court must review the

indictment to determine whether the challenged indictment tracks the language of

the statutory offense charged. “Recitation of the statutory language gives rise to the

presumption that the indictment sufficiently apprises the defendant of the mental

state required.” Orren, No. 03C01-9704-CR-00141 (citing Campbell v. State, 491

S.W.2d 359, 361 (Tenn. 1973)). Even if the language of the statute is not strictly

pursued, the indictment remains sufficient if words of equivalent import or more

comprehensive import are used. Campbell, 491 S.W.2d at 361.



                                         A. Aggravated Rape

        The presentment4 in the case at bar for count one charged that the appellant:

                 “unlawfully and feloniously did accomplish and aid and
                 abet in the accomplishment of unlawful sexual
                 penetration, as defined in Tennessee Code Annotated, §
                 39-3702, of another, Mrs. Betty Hoover, accompanied by
                 the following circumstances. The defendants caused
                 personal injury to the victim; the defendants were aided
                 and abetted by each other and force or coercion was
                 used to accomplish the act . . .”


         At the time of the offense in this case, aggravated rape was defined as

        3
          Although Hill is not controlling authority for pre-1989 offenses, its principles are
applicable. A post-1989 indictment is sufficient if: (a) the language satisfies the constitutional
requirement of notice to the accused, (b) its form meets the requirement set forth in Tenn. Code
Ann. § 40-13-202 (Supp. 1996), and (c) the requisite mental state can be logically inferred from
the alleged condu ct. Hill, 954 S.W.2d at 726-27. If the statute creates an offense, the indictment
mus t charge the facts and circu msta nces w hich con stitute the of fense m entioned in the statute .
Hill, 954 S.W .2d at 729 ; see also Cam pbell v. State , 491 S.W .2d 359, 361 (Tenn. 1973 ).

        4
        See Tenn. Code Ann. § 40-1702 (1975) (“Wherever in this Code ‘indictment’ is used, the
sam e shall be ta ken to inc lude pres entm ent whe never the contex t so requ ires or will perm it.”); see
also Tenn. Code A nn. § 40-13-101(b) (1995).

                                                    4
“unlawful sexual penetration of another accompanied by any of the following

circumstances” including causing personal injury to the victim and aiding and

abetting by one or more persons when force is used to accomplish the act.

Tenn. Code Ann. § 39-3703 (a) (2) (3) (A) (Supp. 1981).



        In Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 251(1952),

the Supreme Court applied common law mens rea to statutory crimes. For those

crimes originating at common law, an interpretive presumption exists that a mens

rea is required. Id. Hence, statutory crimes originating from common law that

expressly omit scienter in their definition apply the mens rea for the offense that

existed under common law. 5 The statutory offense of aggravated rape is a crime

originating from common law. See State v. Wilkins, 655 S.W.2d 914, 916 (Tenn.

1983) (defining common law rape as “the unlawful carnal knowledge of a woman

over the age of ten years forcibly and without her consent, or, as otherwise

expressed, by force, or forcibly and against her will, or such knowledge of a female

child under the age of ten years either with or without her consent.”). 6 Rape was a

general intent crime at common law. See 75 CJS Rape § 9 (1952). Accordingly, no

intent is required other than that evidenced by the doing of the acts constituting the

offense. Id.; see also Orren No. 03C01-9704-CR-00141; Wilkins, 655 S.W.2d at

916.



        Therefore, for the presentment to be sufficient in the present count, it need

only charge the accused unlawfully sexually penetrated a victim and force or

coercion is used to accomplish the act and the defendant is aided and abetted by

one other person. We conclude the language of count one of the challenged

presentment tracks the language of the statute and sufficiently informed the


        5
         See Moriss ette, 342 U.S . at 263, 72 S.Ct. at 25 1; United States v. Gypsum Co., 438 U.S.
422, 437 , 98 S.Ct. 2 864, 287 3 (1978 ).

        6
        We note that the offense in the present case is aggravated rape and not rape. Our
supreme court has recognized that the offense of aggravated rape is but an aggravated form of
the com mon law offen se of rap e. Wilkins, 655 S.W .2d at 916 .

                                                5
accused of the charge against him.



                             B. Aggravated Kidnapping

       Requiring a somewhat different analysis, we turn to the presentment on count

two which includes the required mens rea under the law at the time charging the

appellant:

       “unlawfully and feloniously did seize, confine, abduct, conceal, and
       kidnap another, Mrs. Betty Hoover, with the felonious intent to detain
       her against her will when the person secretly confined and unlawfully
       detained was the victim of a felony, Aggravated Rape, or any lesser
       included felony thereof committed on her person during and secret
       confinement and unlawful detention . . . .”


       On the relevant date, aggravated kidnapping was defined in pertinent part

as follows:

       (a) Any person who unlawfully seizes, confines, inveigles, entices,
       decoys, abducts, conceals, kidnaps or carries away another with the
       felonious intent to: (1) Cause the other to be secretly confined against
       his will; or (2) Detain the other against his will; . . . shall be guilty of
       aggravated kidnaping when one or more of the following
       circumstances are present: (C) The person ... [u]nlawfully detained ...
       is the victim of any felony committed on his person during the . . .
       unlawful detention . . . Tenn. Code Ann. § 39-2603 (Supp. 1981).


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

to the statutory requirements for an indictment which provided:

       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. Tenn. Code Ann. §
       40-1802 (1975) (now Tenn. Code Ann. § 40-12-202) .

       Additionally, in Campbell, 491 S.W.2d at 361, the court stated, “[I]t is clear,

however, that had the indictment used the words ‘feloniously’ or ‘unlawfully,’ it would

have been sufficient.” By incorporating the words found in the language of the

statute, i.e., unlawfully and feloniously, the presentment sufficiently apprised of the

requisite mens rea under the law at the time for count two, aggravated kidnapping.



                            III. Failure to Properly Charge

                                           6
       The appellant avers the presentment was fatally defective in its failure to

apprise him of the offenses to defend. Specifically, he argues the presentment

alleges the appellant only violated a statutory definition and not an indictable

offense. He also argues count one did not contain the words “Aggravated Rape” nor

did it refer to Tenn. Code Ann. § 39-3703, the aggravated rape statute.

Furthermore, he presents the same argument for count two not using the words

“Aggravated Kidnapping” nor referring to the appropriate code section. See Tenn.

Code Ann. § 39-2603. Alternatively, the State responds that the presentment was

sufficient citing State v. John Haws Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim.

App. at Knoxville, Feb. 11, 1997), perm. to appeal denied, (Tenn. 1997), and Tenn.

Code Ann. § 40-13-202. The state argues the reverse side of each count of the

presentment contains the listed offenses.



       The body of the presentment itself was sufficient to apprise the appellant of

the charge to which he was to defend. It sets forth “unlawful sexual penetration” of

the victim in count one and “abducts,. . ., kidnaps or carries away another” in count

two along with the other essential elements of the crime. See Pope v. State, 149

Tenn. 176, 258 S.W. 775 (1924); Bishop v. State, 122 Tenn. 729, 127 S.W. 698

(1910); Hall v. State, 43 Tenn. 125, (3 Cold.) 125 (1866) (holding indictment

sufficient if it informs defendant of offense to answer, informs court of offense and



appropriate judgment, and protects defendant from future prosecution for same

crime).



       The code section referred to in count one was merely to define “unlawful

sexual penetration” not to define the actual charge. Moreover, reference to the

particular code section is not required; the statute portion referred to is mere

surplusage. Cole v. State, 512 S.W.2d 598 (Tenn. Crim. App.), cert. denied, (Tenn.

1974) (finding mistaken subsection of statute as mere surplusage); McCracken v.


                                          7
State, 489 S.W.2d 48, 51 (Tenn. Crim. App. 1972), cert. denied, (Tenn. 1972)

(finding reference to incorrect statute as surplusage); Harris v. State, 82 Tenn. 485

(1884) (holding where indictment charges an offense in language of statute, other

and additional averments not required by statute should be disregarded as

surplusage).



         Nevertheless, we hold the reverse side of each count of the indictment may

be considered in determining whether the indictment sufficiently apprises the

appellant that he was charged with aggravated rape and aggravated kidnapping.

The reverse side is accepted by “incorporation by reference.” See State v. Nixon,

No. 02C01-9612-CC-00484 (Tenn. Crim. App. at Jackson, Dec. 3., 1997) (citing

People v. Jeffrey, 94 Ill. App. 3d 455, 49 Ill. Dec. 860, 418 N.E.2d 880, 887 (Ill. App.

1981); State v. Nelson, 514 S.W.2d 581, 584 (Mo. 1974); State v. Hurley, 251

S.W.2d 617, 619 (Mo. 1952); State v. Johnson, 77 N.C. App. 583, 335 S.E.2d 770,

771 (N.C. 1985); Hill v. State, 523 P.2d 1114, 1116 (Okla. Crim. App. 1974)). Since

those requisite offenses were stated on the reverse side of the presentment, we

think that it is clear that the appellant was apprised of the charges he was to defend,

and the presentment is therefore valid.




                                          IV. Jury Instruction

         The fourth challenge by the appellant is the constitutionality of the reasonable

doubt jury instruction. We agree with the trial court 7 that the jury instruction is valid


          7
            The appellant’s reliance upon Rickman v. Dutton, 864 F. Supp. 686, 707 (M.D. Tenn.
1994), is misplaced; this court is not bound by federal district court rulings. Moreover, in Austin v.
Bell, 126 F.3 d 843, 84 6-47 (6th Cir. 1997 ), the cour t found the reason able dou bt instruction valid.
Reg ardle ss, th e Un ited S tates Sup rem e Co urt did not fin d the use o f “m oral c ertain ty”
constitution ally invalid. Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239 (1994). The Court was
prim arily co nce rned with th e term s “gr ave u nce rtainty” and “ actu al sub stan tial do ubt” u sed in
conjun ction with the “mor al certainty” pro vision. Cage v. Louisiana, 498 U.S . 39, 41, 11 1 S.Ct.
328, 329-30 (1991). The jury instruction presently in question did not contain the particular terms
of concern. Moreover, the Tennessee Supreme Court has upheld a similar instruction using the
phrase “mo ral certainty,” State v. Nic hols , 877 S.W .2d 722, 7 34 (Te nn. 1994 ), cert. denied, 513
U.S. 11 14, 115 S .Ct. 909 (1 995), an d this cou rt has also upheld s imilar instru ctions. Pettyjohn v.
State , 885 S.W .2d 364, 3 65-66 (T enn. Cr im. Ap p. 1994) , perm. to appeal denied, (Tenn. 1994);
State v. Hallock, 875 S.W .2d 285, 2 94 (Te nn. Crim . App. 199 3), perm. to appeal denied, (Tenn.

                                                     8
in Tennessee, however, this court has repeatedly held that a challenge to a jury

instruction does not present a claim for writ of habeas corpus relief. See Hall v. Mills,

No. 01C01-9510-CV-00339 (Tenn. Crim. App. at Nashville, Aug. 1, 1996), perm. to

appeal denied, (Tenn. 1996); Voss v. Raney, No. 02C01-9501-CC-00022 (Tenn.

Crim. App. at Jackson, Aug. 2, 1995), perm. to appeal denied, (Tenn. 1995). The

appellant’s sentence has not expired as the record clearly indicates, nor would this

issue render his judgment void. This issue raised by the appellant, even if it were

valid, would only render his judgment voidable, making it an issue to be raised in a

post-conviction petition8 not a petition for writ of habeas corpus.



         Based upon the above reasons, the judgement of the trial court denying the

appellant’s petition for writ of habeas corpus is affirmed.




                                              ____________________________________
                                              DAVID G. HAYES, Judge




CONCUR:



__________________________________
PAUL G. SUMMERS, Judge


___________________________
JERRY L. SMITH, Judge




1994). W e are bo und to fo llow prece dent of o ur state’s s uprem e court. Barger v. Brock, 535
S.W .2d 337, 3 41 (Te nn. 1976 ).
         8
         8
           Although a trial court is allow ed to ente rtain a petition o f habea s corpu s as on e for pos t-
conviction relief, the trial court’s dismissal remained appropriate. Post-conviction relief must be
filed in the co unty of the a ppellant’s c onviction, W illiamson Coun ty, and not D avidson Coun ty
Crim inal Cour t. See Tenn . Code A nn. § 40- 30-204 , -205 (c).

                                                      9
