            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                             OCTOBER 1997 SESSION
                                                       FILED
                                                       December 23, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
JERRY L. HUGHES,                     )
                                     )   C.C.A. NO. 02C01-9611-CC-00408
      Appellant,                     )
                                     )   LAKE COUNTY
VS.                                  )
                                     )   HON. JOE G. RILEY, JR.,
BILLY COMPTON, Warden,               )   JUDGE
                                     )
            Appellee.                )   (Habeas corpus)



FOR THE APPELLANT:                       FOR THE APPELLEE:


JERRY HUGHES (pro se)                    JOHN KNOX WALKUP
Register No. 111099                      Attorney General & Reporter
Rt. 1, Box 330
Tiptonville, TN 38079-9775               ELIZABETH T. RYAN
                                         Asst. Attorney General
                                         450 James Robertson Pkwy.
                                         Nashville, TN 37243-0493

                                         C. PHILLIP BIVENS
                                         District Attorney General
                                         P.O. Drawer E
                                         Dyersburg, TN 38024




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                               OPINION



                 The petitioner filed his petition for writ of habeas corpus on September 26,

1996, alleging that he is being illegally restrained pursuant to a forty year sentence

imposed in 1986 for two counts of aggravated rape. He contends that the underlying

convictions are void because they are based on an invalid indictment. He alleges that

the indictment is invalid because neither count includes an allegation of the mens rea

element of the offense. The petitioner relies on this Court's opinion in State v. Roger

Dale Hill, Sr., No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App. filed June

20, 1996, at Nashville). The court below summarily dismissed the petition, and this

appeal as of right followed. We affirm.



                 We first note that the Hill case dealt with a post-1989 indictment whereas

this case involves a 1986 indictment. This Court has previously held that its decision in

Hill is inapposite to pre-1989 indictments. See, e.g., James Clyde Saylor v. Howard

Carlton and State, No. 03C01-9612-CR-00453, Johnson County (Tenn. Crim. App. filed

Oct. 31, 1997, at Knoxville). Moreover, irrespective of its applicability to this case, our

Supreme Court has overruled this Court's decision in Hill. See State v. Hill, __ S.W.2d

__ (Tenn. 1997). Further, each of the contested counts of the indictment in this case

alleges that the petitioner “with force and arms, in the County aforesaid, unlawfully, and

feloniously committed the offense of Aggravated Rape by engaging in unlawful sexual

penetration of [the victim], and the said [victim] is a child less than thirteen years of age.”

The use of the terms “with force and arms” and “feloniously” are sufficient to allege the

culpable mental state for aggravated rape.1 The petitioner's contention is therefore


        1
            The mens rea requirem ent for ag gravate d rape is inte ntional, kn owing or reckles s. See State
v. Hill , __ S.W .2d __, __ (Tenn . 1997).

                                                      2
without merit.



             The judgment below is affirmed.



                                      ___________________________________
                                      JOHN H. PEAY, Judge


CONCUR:



______________________________
PAUL G. SUMMERS, Judge



______________________________
DAVID G. HAYES, Judge




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