            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            FEBRUARY 1998 SESSION
                                                           March 18, 1998

                                                       Cecil W. Crowson
KENNETH A. STEELE,              *                     Appellate Court Clerk
                                     C.C.A. # 01C01-9703-CC-00105

             Appellant,         *    WAYNE COUNTY

VS.                             *    Hon. Jim T. Hamilton, Judge

STATE OF TENNESSEE,             *    (Habeas Corpus)

             Appellee.          *




For Appellant:                       For Appellee:

Jeffery S. Frensley, Attorney        John Knox Walkup
211 Third Avenue North               Attorney General and Reporter
P.O. Box 198288
Nashville, TN 37219-8288             Daryl J. Brand
                                     Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     Stan Lanzo
                                     H.C. Bright
                                     Assistant District Attorneys General
                                     Hamilton County Justice Building
                                     Chattanooga, TN 37402




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              Indicted on twenty-one separate indictments involving eight victims,

the petitioner, Kenneth Alan Steele, was convicted on each count. The charges

included burglary, armed robbery, aggravated robbery, rape, aggravated assault,

assault with intent to commit rape, and theft of property. The Court of Criminal

Appeals affirmed the convictions. State v. Kenneth Alan Steele, No. 03C01-9207-

CR-00233 (Tenn. Crim. App., at Knoxville, Oct. 13, 1993). Application for

permission to appeal to the supreme court was denied.



              In this petition for habeas corpus, the petitioner claims that seventeen

of the felony indictments were void for the failure to include all of the essential

elements of the crime. In particular, the petitioner argues that the indictments failed

to assert the requisite mens rea of the crime charged. It is the contention of the

petitioner that, due to the faulty indictments, the trial court lacked jurisdiction to enter

a conviction or impose a sentence.



              We find no error and affirm the judgment of the trial court.



              The counts of the indictment under attack are as follows:

              (1)    Indictment No. 188342: That the defendant "did
              unlawfully, feloniously and burglariously break and enter
              into the dwelling house ... with intent to commit a
              felony...."

              (2)    Indictment No. 188345: That the defendant "did
              unlawfully engage in sexual penetration (i.e., sexual
              intercourse) by the use of force or coercion...."

              (3)   Indictment No. 188332: That the defendant "did
              unlawfully, feloniously and forcibly take ... property ... by
              the use of force and violence ... in violation of [Tenn.
              Code Ann. §] 39-2-501...."

              (4)   Indictment No. 188333: That the defendant "did
              unlawfully engage in sexual penetration (i.e., sexual

                                             2
intercourse) ... by the use of force or coercion ... in
violation of [Tenn. Code Ann. §] 39-2-603...."

(5)    Indictment No. 188334: That the defendant "did
unlawfully, feloniously and burglariously break and enter
into the dwelling house ... with intent to commit a
felony...."

(6)    Indictment No. 188335: That the defendant "did
unlawfully and feloniously assault ... with intent,
feloniously and willfully to commit [r]ape, in violation of
[Tenn. Code Ann. §] 39-2-608...."

(7)   Indictment No. 188336: That the defendant "did
unlawfully, feloniously, and forcibly take ... property ... by
the use of force and violence ... in violation of [Tenn.
Code Ann. §] 39-2-501...."

(8)    Indictment No. 188337: That the defendant "did
unlawfully, feloniously, and burlargiously break and enter
into the dwelling house ... with intent to commit a
felony...."

(9)   Indictment No. 188338: That the defendant "did
unlawfully, feloniously, and forcibly take ... property ... by
the use of force and violence ... in violation of [Tenn.
Code Ann. §] 39-2-501...."

(10) Indictment No. 188340: That the defendant "did
unlawfully, feloniously, and burglariously break and enter
into the dwelling house ... with intent to commit a
felony...."

(11) Indictment No. 188329: That the defendant "did
unlawfully, feloniously and forcibly take ... property ... by
the use of force and violence ... in violation of [Tenn.
Code Ann. §] 39-2-501...."

(12) Indictment No. 188331: That the defendant "did
unlawfully engage in sexual penetration, (i.e., sexual
intercourse) ... by the use of force or coercion ... in
violation of [Tenn. Code Ann. §] 39-2-603...."

(13) Indictment No. 188341: That the defendant "did
unlawfully enter the habitation ... without ... consent, with
intent to commit [t]heft, in violation of [Tenn. Code Ann.
§] 39-14-403...."

(14) Indictment No. 188343: That the defendant "did
unlawfully enter the habitation ... without ... consent, with
intent to commit [a]ttempt[ed r]ape, in violation of [Tenn.
Code Ann. §] 39-14-403...."

(15)   Indictment No. 188344: That the defendant "did

                              3
              unlawfully attempt to engage in sexual penetration ... by
              the use of force or coercion ... in violation of [Tenn. Code
              Ann. §] 39-12-101...."

              (16) Indictment No. 188326: That the defendant "did
              unlawfully engage in sexual penetration (i.e., sexual
              intercourse) ... by the use of force or coercion ... in
              violation of [Tenn. Code Ann. §] 39-13-503."

              (17) Indictment No. 188327: That the defendant "did
              unlawfully enter the habitation ... without ... consent ...
              with intent to commit [r]ape, in violation of [Tenn. Code
              Ann. §] 39-14-403...."



              On September 12, 1996, the petitioner filed a petition for habeas

corpus relief alleging deficiencies in each of these indictments based upon the

ruling of this court in State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn.

Crim. App., at Nashville, June 20, 1996), rev'd, 954 S.W.2d 725 (Tenn. 1997). A

writ of habeas corpus may be granted only when the petitioner has established lack

of jurisdiction for the order of confinement or that he is otherwise entitled to

immediate release because of the expiration of his sentence. See Ussery v. Avery,

432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d 839

(Tenn. Crim. App. 1969). Habeas corpus relief is available in this state only when it

appears on the face of the judgment or the record that the trial court was without

jurisdiction to convict or sentence the defendant or that the sentence of

imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992).



              Tennessee Code Annotated § 39-11-301(c) (1989) provides that "[i]f

the definition of an offense within this title does not plainly dispense with a mental

element, intent, knowledge or recklessness suffices to establish the culpable mental

state." In Hill, a panel of this court ruled that the statutory offense of rape as defined

by the 1989 Act did not "plainly dispense" with a mens rea of the crime and thus the


                                            4
indictment, which did not allege a mens rea, was void for failure to allege an

essential element of the offense. Slip op. at 5-6.



              On appeal, our supreme court overruled the intermediate court

opinion, holding as follows:

              [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

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

Hill, 954 S.W.2d at 726-27. The court ultimately ruled that the indictment for

aggravated rape was sufficient because "the act for which the defendant [was]

indicted, 'unlawful sexual penetrat[ion]' ... is committable only if the principal actor's

mens rea is intentional, knowing, or reckless. Thus, the required mental state may

be inferred from the nature of the criminal conduct alleged." Id. at 729.



              Generally, an indictment must set forth the elements of the offense.

State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992). It is settled law that

"[w]hen the indictment or presentment fails to fully state the crime, all subsequent

proceedings are void." Id. (citing State v. Morgan, 598 S.W.2d 796, 797 (Tenn.

Crim. App. 1979)). The historical significance of the indictment is well documented

in the federal courts:

                                             5
              The general ... and universal[] rule ... is that all the
              material facts and circumstances embraced in the
              definition of the offense must be stated, or the indictment
              will be defective. No essential element of the crime can
              be omitted without destroying the whole pleading. The
              omission cannot be supplied by intendment or
              implication, and the charge must be made directly, and
              not inferentially, or by way of recital.

United States v. Hess, 124 U.S. 483, 486, 8 S. Ct. 571, 573 (1888). The provisions

of our state and federal constitutions guarantee the criminally accused knowledge of

the "nature and cause of the accusation." U. S. Const. amend. VI; Tenn. Const. art

I, § 9. "Fair and reasonable notice of the charges against an accused is a

fundamental constitutional requirement." State v. Trusty, 919 S.W.2d 305, 309

(Tenn. 1996). To be sufficient, an indictment must "inform the defendant of the

precise charges; ... must enable the trial court upon conviction to enter an

appropriate judgment; ... and must protect [the] defendant against double jeopardy."

Id. As a matter of fairness, the constitutional requirement is designed to afford the

criminally accused with an adequate opportunity to prepare any defense before the

trial. See, e.g., Pope v. State, 258 S.W. 775 (Tenn. 1924); Daniel v. State, 50 Tenn.

257 (1871).



              Such a rigid rule has occasionally caused harsh results from the

perspective of the state. At times, convictions have been set aside even though the

prosecution gains no advantage:

                      At common law, even the slightest technical defect
              might fell an indictment. Sir Matthew Hale lamented the
              strictness with which indictments were viewed as a
              "blemish and inconvenience of the law" whereby
              "heinous and crying offenses escape by these unseemly
              niceties to the reproach of the law, to the shame of the
              government, and to the encouragement of villainy, and to
              the dishonor of God." 2 Sir Matthew Hale, The History of
              the Pleas to the Crown, 193 (London E. Ryder 1800)
              (1716).

United States v. Wydermyer, 51 F.3d 319, 324 (2d Cir. 1995).


                                           6
                  Twelve of the indictments challenged by the petitioner were for

offenses committed before November 1, 1989. The opinion of a panel of this court

in Hill was based for the most part on Tenn. Code Ann. § 39-11-301(b)(1989), which

provided that a "culpable mental state is required ... unless the definition of the

offense plainly dispenses with the mental element." The 1982 Act contained no

similar provision. The indictments need only set forth the elements of the offenses

as they were defined at the time of the unlawful act. See Gregory L. Hatton v. State,

No. 02C01-9611-CC-00407, slip op. at 2-3 (Tenn. Crim. App., at Jackson, Feb. 19,

1997). So the twelve under attack were sufficient, in our view, under the prior law.1

Moreover, nine of the indictments against the petitioner allege that he acted

"feloniously."2 "Feloniously" has been recognized as expressing a culpable mental

state. Id.



                  Four of the indictments against the petitioner allege either "an attempt"

or "sexual penetration ... by the use of force or coercion."3 In our view, that

language necessarily implies the required mental state. See State v. John Haws

Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim. App., at Knoxville, Feb. 11, 1997),

app. denied, concurring in results only, (Tenn., Oct. 6, 1997). In summary, each of

the indictments under challenge adequately set forth the elements of the offense

alleged. By the use of the rule established in Hill, the language included in each of

the indictments supports the inference that the acts were intentional.



                  Accordingly, the judgment is affirmed.




       1
           Indictments No. 188329, 188331 through 188338, 188340, 188342, and 188345.

       2
           Indictm ents No . 188329 , 188332 , 188334 through 18833 8, 18834 0, and 18 8342.

       3
           Indictm ents No . 188326 , 188331 , 188333 , 188344 , and 188 345.

                                                     7
                                ________________________________
                                Gary R. Wade, Judge

CONCUR:



_____________________________
William M. Barker, Judge



_____________________________
Curwood Witt, Judge




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