            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                             JUNE 1997 SESSION        December 23, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

DONALD WAYNE HOLT,                 )
                                   )    C.C.A. NO. 03C01-9702-CR-00059
            Appellant,             )
                                   )    JOHNSON COUNTY
VS.                                )
                                   )    HON. LYNN W. BROWN,
HOWARD CARLTON and                 )    JUDGE
STATE OF TENNESSEE                 )
                                   )
            Appellees.             )    (Habeas corpus)



FOR THE APPELLANT:                      FOR THE APPELLEE:


KENNETH F. IRVINE, JR.                         JOHN KNOX WALKUP
606 W. Main St., Suite 350              Attorney General & Reporter
P.O. Box 84
Knoxville, TN 37901-0084                SANDY R. COPOUS
                                        Asst. Attorney General
                                        450 James Robertson Pkwy.
                                        Nashville, TN 37243-0493

                                        DAVID CROCKETT
                                        District Attorney General
                                        Route 19, Box 99
                                        Johnson City, TN 37601




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                            OPINION



                The petitioner filed his petition for writ of habeas corpus on September 18,

1996, alleging that his 1991 conviction for aggravated rape is void because it is based

upon an invalid indictment. Specifically, he claims that the indictment fails to allege the

necessary mens rea element and that his conviction must therefore be reversed and

dismissed pursuant to 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).1

The court below summarily dismissed the defendant’s petition, finding that it fails to state

a claim upon which relief could be granted. The defendant now appeals. We affirm the

judgment below.



                In Hill, this Court held that an indictment for aggravated rape alleging that

the defendant had “unlawfully sexually penetrate[d]” the victim was insufficient because

it did not allege a culpable mental state. However, our Supreme Court has overruled this

Court’s decision in Hill, holding that aggravated rape “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.” State v. Hill, __ S.W.2d __

(Tenn. 1997) (footnote omitted).



                In this case, the petitioner was also charged with aggravated rape, the

indictment alleging that he “unlawfully did sexually penetrate and cause bodily injury to”

the victim. Under our Supreme Court's analysis in Hill, this indictment is adequate. This



        1
          The petitioner also claims in his petition that the indictment was not signed by the district
attorney general. However, this issue has not been briefed and is therefore waived. Tenn. Crim. App.
R. 10(b). Moreover, the copy of the indictment included in the record contains the signature of Guy R.
Dotson, who was the district attorney general of Rutherford County at the time. This issue merits no
further discussion.

                                                   2
issue is therefore without merit.



              The judgment below is affirmed.



                                                _________________________________
                                                JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
CURWOOD W ITT, Judge




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