         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE        FILED
                         NOVEMBER 1998 SESSION
                                                   November 19, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
GENE H. CRANK,                      )
                                    )    NO. 01C01-9708-CR-00318
      Appellant,                    )
                                    )    DAVIDSON COUNTY
VS.                                 )
                                    )    HON. J. RANDALL WYATT, JR.,
STATE OF TENNESSEE                  )    JUDGE
                                    )
      Appellee.                     )    (Habeas Corpus)



FOR THE APPELLANT:                       FOR THE APPELLEE:

GENE H. CRANK, Pro Se                    JOHN KNOX WALKUP
#108161                                  Attorney General and Reporter
South Central Correctional Center
Apollo AA-225                            KAREN M. YACUZZO
P.O. Box 279                             Assistant Attorney General
Clifton, TN 38425-0279                   Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         VICTOR S. JOHNSON III
                                         District Attorney General
                                         222 - 2nd Avenue North
                                         Washington Square, Suite 500
                                         Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                        OPINION



       Petitioner appeals the summary dismissal of his petition for writ of habeas

corpus. The petitioner claims his indictment for aggravated rape and first degree

burglary was void for failing to set forth the requisite mens rea. However, the record

does not contain the indictment at issue, thereby precluding the Court from

conducting an adequate review. Nevertheless, assuming that the indictment reads

as claimed by petitioner, we find no merit to his claim and AFFIRM the trial court’s

dismissal of the habeas corpus petition.



                              PROCEDURAL HISTORY



       Petitioner filed for a writ of habeas corpus with the trial court. He challenged

the validity of his 1984 indictment for aggravated rape and first degree burglary.

Petitioner claimed that the indictment failed to allege the proper mens rea, making

it facially invalid and divesting the trial court of jurisdiction as per State v. Hill, 954

S.W.2d 725 (Tenn. 1997). The trial court dismissed the petition.



                                            I.



       Without a valid indictment, there can be no jurisdiction and no prosecution.

Dykes v. Compton, __ S.W.2d __, __ (Tenn. 1998). “[T]he validity of an indictment

and the efficacy of the resulting conviction may be addressed through a petition for

writ of habeas corpus when the indictment is so defective as to deprive the court of

jurisdiction.” Id. at __. Thus, this case is properly before our Court in the posture

of a habeas corpus proceeding.




                                            II.


                                            2
       It is the appellant’s duty to prepare a record which conveys a fair and

accurate account of what transpired with respect to the issues which form the basis

of the appeal in order to allow for a meaningful appellate review. Tenn. R. App. P.

24; State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). This appeal is

based solely upon sufficiency of the indictment, yet petitioner failed to include a

copy of the indictment in the record. Tenn. Code Ann. § 29-21-107(b)(2) provides

that if petitioner in a petition for writ of habeas corpus is restrained of his liberty “by

virtue of any legal process, a copy thereof shall be annexed, or a satisfactory

reason given for its absence.” This provision of the statute is “mandatory and the

failure to comply with same may be grounds for dismissing the petition.” State ex

rel. Wood v. Johnson, 216 Tenn. 531, 393 S.W.2d 135, 136 (1965); see also State

ex rel. Kuntz v. Bomar, 214 Tenn. 500, 381 S.W.2d 290, 291 (1964). Thus,

petitioner has not met the duty which entitles him to a complete appellate review.

       However, the record is not completely devoid of material upon which an

appellate review can be conducted. Petitioner did allege the indictment’s wording

in his original petition for writ of habeas corpus.        Thus, we elect to address

petitioner’s appeal on the merits in spite of the less than complete appellate record.



                                           III.



       Petitioner complains that the indictment under which he was convicted is void

for failing to allege the proper mens rea for each offense. We disagree.

       Our Supreme Court’s decision in Hill established the requirements for a valid

indictment when the legislature does not expressly require nor plainly dispense with

the requirement for a culpable mental state, and the indictment fails to allege a

mental state. Those requirements are:

       (1) the language of the indictment [must be] 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 [must meet] the requirements of Tenn.
       Code Ann. § 40-13-202; and



                                            3
      (3) the mental state [must be able to] be logically inferred from the
      conduct alleged.

954 S.W.2d at 726-27.

       Although Hill concerned a post-1989 indictment and the case under review

is a pre-1989 indictment, the Supreme Court in Dykes found the Hill analysis “as

relevant to crimes committed under the 1979 Act as it is to those committed under

the 1989 Act.” Dykes, __ S.W.2d at __. Therefore, Hill is relevant to petitioner’s

1984 indictment.

                               A. Aggravated Rape

       The aggravated rape statute at the time of petitioner’s offense read:

       “Aggravated rape is unlawful sexual penetration of another
       accompanied by any of the following circumstances . . . Force or
       coercion is used to accomplish the act and the defendant is armed
       with a weapon or any article used or fashioned in a manner to lead
       the victim reasonably to believe it to be a weapon.” Tenn. Code Ann.
       § 39-2-603(a)(1) (1982).

The aggravated rape indictment allegedly read:

              “. . .Gene H. Crank, heretofore, to wit, on the 9th day of July,
       1984 and prior to the return of this indictment, with force and arms, in
       the County aforesaid, unlawfully, and unlawfully [sic] have sexual
       penetration of Marsha D. Warren while said defendant was armed
       with a knife or an ‘article’ used in a manner while he lead [sic] Marsha
       D. Warren to believe is [sic] was a weapon. The said unlawful sexual
       penetration was in violation of Tennessee Code Annotated, Section
       39-2-603, and against the peace and dignity of the State of
       Tennessee.”

       Applying the Hill analysis to this charge, it is obvious that petitioner’s claim

fails. The language of the indictment clearly advises petitioner of the crime for

which he is charged; provides a basis for a proper judgment; and protects petitioner

from double jeopardy. The indictment comports with the requirements of Tenn.

Code Ann. § 40-13-202. Furthermore, there is sufficient conduct alleged from which

petitioner’s mental state may be logically inferred. This issue has no merit.



                             B. First Degree Burglary

      The first degree burglary statute at the time of petitioner’s offense read:

       “Burglary is the breaking and entering into a dwelling house, or any
       other house, building, room or rooms therein used and occupied by
       any person or persons as a dwelling place or lodging either
       permanently or temporarily and whether as owner, renter, tenant,

                                          4
       lessee or paying guest, by night, with intent to commit a felony.”
       Tenn. Code Ann. § 39-3-401(a) (1982).

Petitioner’s burglary indictment allegedly read:

              “. . . Gene H. Crank, heretofore, to wit, on the 9th day of July,
       1984, and prior to the return of this indictment, in the County and
       State aforesaid, unlawfully, feloniously, forcibly and violently, did
       break and enter, in the ‘night’ time, the dwelling home of another, to
       wit: one Marsha D. Warren . . . to commit a felony, to wit: Larceny, did
       then and there and therein unlawfully and feloniously take, steal and
       carry away certain goods and chattel, to wit: six dollars in good and
       lawful currency of the United States of America.”

       Again, the Hill analysis leads us to the conclusion that petitioner’s claim fails.

The wording of the indictment gives petitioner notice of the charge against him,

provides the basis for a proper judgment, and protects him from double jeopardy.

Again, the indictment comports with Tenn. Code Ann. § 40-13-202. Further, the

indictment alleges more than sufficient conduct from which petitioner’s culpable

state of mind may be inferred. This issue has no merit.



                                   CONCLUSION



       Based upon the foregoing, we AFFIRM the trial court’s dismissal of

petitioner’s writ of habeas corpus.




                                                  ____________________________
                                                   JOE G. RILEY, JUDGE




                                           5
CONCUR:




____________________________
DAVID G. HAYES, JUDGE




____________________________
L. T. LAFFERTY, SENIOR JUDGE




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