                                                       FILED
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                  May 17, 1999
                             AT KNOXVILLE
                                                      Cecil Crowson, Jr.
                                                       Appe llate Court C lerk
                          JANUARY 1999 SESSION



TIM DENTON,                  *    C.C.A. NO. 03C01-9712-CR-00536

      APPELLANT,             *    MORGAN COUNTY

VS.                          *    Hon. E. Eugene Eblen

STATE OF TENNESSEE,          *    (Habeas Corpus)

      APPELLEE.              *




For Appellant:                    For Appellee:

Tim Denton, pro se                John Knox Walkup
M. C. R. C. F. Box 2000           Attorney General and Reporter
Wartburg, TN 37887                450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  Ellen Pollack
                                  Assistant Attorney General
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Frank Harvey
                                  Assistant District Attorney General
                                  P.O. Box 703
                                  Kingston, TN 37763



OPINION FILED: ____________________



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                       OPINION

              The petitioner, Tim Denton, appeals the Morgan County Criminal

Court’s dismissal of his petition for a writ of habeas corpus. On November 27, 1989,

a Cocke County Grand Jury indicted the appellant for aggravated rape, armed

robbery, and aggravated kidnapping, occurring in August of 1989. Following a trial

by jury, the Cocke County Criminal Court convicted the petitioner of all three

offenses and imposed an effective sentence of twenty-two (22) years incarceration

in the Tennessee Department of Correction.



              The petitioner filed a pro se petition for a writ of habeas corpus on April

10, 1997. On November 6, 1997, the Morgan County Criminal Court dismissed the

petition without appointing counsel or conducting an evidentiary hearing. The trial

court based its summary dismissal of the petition on the decision of our supreme

court in State v. Hill, holding that the facts and circumstances of the petitioner’s case

fall within the purview of Hill. 954 S.W.2d 725 (Tenn. 1997).



              On appeal, the petitioner presents two issues for our review:

              (I) whether the trial court erred by dismissing his petition
              for a writ of habeas corpus without appointing counsel or
              conducting an evidentiary hearing; and

              (II) whether the indictment for aggravated rape, armed
              robbery, and aggravated kidnapping in his case was
              fatally defective for failure to allege the requisite mens
              rea, thereby depriving the convicting court of jurisdiction.

Following a thorough review of the record, we affirm the judgment of the trial court.




                                                           2
                                        Analysis

              The petitioner, citing Tenn. Code Ann. § 8-14-205 and Supreme Court

Rule 13, § 1, argues that he has a constitutional right to counsel in habeas corpus

proceedings. In addition, the petitioner contends that the trial court’s summary

dismissal of his petition for a writ of habeas corpus denied him due process of law.

However, Tenn. Code Ann. § 29-21-109 (1980) provides that A[i]f, from the

showing of the petitioner, the plaintiff would not be entitled to any relief, the writ may

be refused...” Moreover, Tenn. Code Ann. § 40-14-204 (1997) provides for

appointment of counsel in habeas corpus proceedings only as necessary. Finally,

there is no constitutional right to counsel in habeas corpus proceedings. See

Weatherly v. State, 704 S.W.2d 730, 732 (Tenn. Crim. App. 1985). Thus, we have

held that when a petition has been competently drafted and conclusively shows that

the petitioner is entitled to no relief, the trial court may order the petition dismissed

without the appointment of counsel and without an evidentiary hearing. Fredrick v.

State, 906 S.W.2d 927, 930 (Tenn. Crim. App. 1993). See also Russell v. Willis,

437 S.W.2d 529, 531 (Tenn. 1969); State ex rel. Byrd v. Bomar, 381 S.W.2d 280,

282 (Tenn. 1964).



              Accordingly, the propriety of the trial court’s summary denial of relief in

this case depends upon the merits of the petitioner’s claim that his convictions for

aggravated rape, armed robbery, and aggravated kidnapping are void because the

indictment charging those offenses failed to allege the mens rea elements of the

offenses. We conclude that the indictment was sufficient and the trial court correctly

dismissed the petition for habeas corpus relief.




                                                            3
              Initially, the record does not contain the count of the indictment

charging armed robbery. Moreover, the record does not contain the judgments of

conviction indicating which counts of the five count indictment resulted in

convictions. A trial court may dismiss a habeas corpus petition for failure to attach

the judgment forms. Tenn. Code. Ann. § 29-21-107 (1980). Notwithstanding this

rule, Acourts may take judicial notice of...court records in an earlier proceeding of

the same case and the actions of the courts thereon.” Delbridge v. State, 742

S.W.2d 266, 267 (Tenn. 1987). Additionally, the appellate courts are authorized to

supplement incomplete records by the terms of Tenn. R. App. P. 24(e), and may

also consider the contents of their own court records in their consideration of related

cases. Accordingly, we will address the merits of the petitioner’s claim.



              In State v. Hill, 954 S.W.2d at 726-27, our supreme court set forth the

following standard for reviewing the sufficiency of an indictment:

              [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 [which requires that an indictment use
                     “ordinary and concise language”]; and

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



                                                          4
The court concluded in Hill that an indictment for aggravated rape was sufficient

because it satisfied constitutional and statutory requirements, and “ 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.



              Turning to the case at hand, the petitioner’s offenses occurred prior to

the effective date of the 1989 criminal code. The court’s decision in Hill specifically

addressed offenses in the 1989 code for which the statute defining the offense omits

the required mens rea but does not plainly dispense with a mens rea. For those

offenses, the 1989 code provides in a separate statute that intent, knowledge, or

recklessness will suffice. Tenn. Code Ann. § 39-11-301 (c) (1997). Accordingly,

several opinions of this court declined to apply Hill in the context of pre-1989

offenses, and instead analyzed the sufficiency of the indictment under the law in

effect at the time of the offenses. See, e.g., Hughes v. Compton, No. 02C01-9611-

CC-00408, 1997 WL 786170, at *1 (Tenn. Crim. App. at Jackson, December 23,

1997), perm. to appeal denied, (Tenn. 1998); King v. State , No. 01C01-9710-CR-

00487, 1998 WL 712345, at **2-4 (Tenn. Crim. App. at Nashville, October 13,

1998), perm. to appeal denied, (Tenn. 1999); Ali v. State, No. 03C01-9706-CC-

00207, 1998 WL 166481, at *1 (Tenn. Crim. App. at Knoxville), perm. to appeal

denied, (Tenn. 1998); Orren v. Carlton, No. 03C01-9704-CR-00141, 1998 WL

57551, at **2-3 (Tenn. Crim. App. at Knoxville), perm. to appeal denied, (Tenn.

1998); O’Quinn v. Carlton, No. 03C01-9703-CR-00084, 1998 WL 47947, at *2

(Tenn. Crim. App. at Knoxville), perm. to appeal denied, (Tenn. 1998); Tomlinson v.



                                                          5
Carlton, No. 03C01-9610-CR-00389, 1997 WL 604573, at **2-3 (Tenn. Crim. App. at

Knoxville, October 2, 1997), perm. to appeal denied, concurring in results only,

(Tenn. 1998).



              However, in Dykes v. Compton, 978 S.W.2d 528 (Tenn. 1998), the

supreme court reviewed the sufficiency of an indictment for aggravated rape

pursuant to the Sexual Offenses Law of 1979. Noting that the 1979 statute for

aggravated rape neither required nor plainly dispensed with a culpable mental state,

the court ruled that the Hill standard applies to cases under the 1979 Act as well as

the 1989 Act. Id. at 530. See also, e.g., Harris v. Raney, No. 02C01-9808-CC-

00240, 1999 WL 134732, at *1 (Tenn. Crim. App. at Jackson, March 12, 1999).

Thus, the Dykes opinion effectively overruled the cases mentioned above to the

extent that this court declined to apply Hill to pre-1989 offenses.



              Accordingly, we must apply the Hill standard to the indictment in this

case. Count one of the indictment alleged aggravated rape. At the time of the

offense, aggravated rape was defined, in part, as

              unlawful sexual penetration of another accompanied by
              any of the following circumstances:... [f]orce or coercion
              is used to accomplish the act and the defendant is armed
              with a weapon...

Tenn. Code. Ann. § 39-2-603(1982). The petitioner’s indictment contained the following

language:

              that Tim Denton... on ...August, 1989, ...did unlawfully,
              and feloniously accomplish unlawful sexual penetration
              of Dorothy E. Essary by the use of force or coercion and
              at a time when the defendants were armed with a ...
              pistol, and by such violated the provisions of T.C.A. 39-2-
              603.



                                                          6
               The aggravated rape statute neither expressly required nor dispensed

with a mental state or mens rea. Nevertheless, rape was a general intent crime.

Dykes, 978 S.W.2d at 530. n. 2. The indictment failed to allege the requirement of a

general intent. Yet, in Dykes, the court concluded that an indictment which alleged

“unlawful sexual penetration” of a child less than thirteen years of age and which

included specific reference to the applicable statute provided ample notice to the

accused, an adequate basis for entry of judgment, and protection from re-

prosecution for the same crime. 978 S.W.2d at 530. In Ruff v. State, 978 S.W.2d

95, 97-98 (Tenn. 1998), our supreme court held that specific reference to the

applicable statute provided the defendant with adequate notice of the offense

charged. Accordingly, we conclude that the language of the aggravated rape

indictment, including the reference to the applicable statute, satisfied the first prong

of the Hill analysis.



               Moreover, the indictment is concise and understandable, and the

requisite mental state can be inferred from the conduct alleged. The court in Dykes

noted that a general intent was easily inferable from the conduct which comprised

the offense of aggravated rape. 978 S.W.2d at 530 n. 2. Moreover, in this case, it

is difficult to imagine a circumstance in which a defendant could sexually penetrate a

victim by the use of force or coercion while armed with a deadly weapon absent an

intent to commit the crime. Ruff, 978 S.W.2d at 100 (the culpable mental state was

more easily inferable because of the references to force and the use of a deadly

weapon).



               Count three of the petitioner’s indictment charged the offense of armed



                                                           7
robbery. At the time of the offense, armed robbery was defined as Athe felonious

and forcible taking from the person of another, goods or money of any value, by

violence or putting the person in fear.” Tenn. Code. Ann. § 39-2-501 (1982). The

petitioner’s indictment read:

              That Tim Denton...on...August, 1989,...did unlawfully,
              feloniously, and forcibly take from the person of Dorothy
              E. Essary, by violence or putting that person in fear, the
              following goods or money approximately $30.00..., and
              certain papers and documents...Said robbery was
              accomplished by the use of...a pistol...




              The robbery statute neither expressly required nor plainly dispensed

with a culpable mental state. Rather, case law provided that robbery was a specific

intent crime and required proof of “the specific intent...[to] depriv[e] the owner of the

property taken.” Harrell v. State, 593 S.W.2d 664, 671 (Tenn. Crim. App. 1979).

The petitioner’s indictment failed to set forth this specific intent. Moreover, the

indictment failed to cite the statute setting forth the offense of robbery.



              Nevertheless, although the supreme court has noted statutory citations

with approval in determining that indictments provided adequate notice, we do not

believe that citation to the statute is the sine qua non of a sufficient indictment. As

the supreme court observed in Hill, 954 S.W.2d at 728 (citation omitted),

              we now approach ‘attacks upon indictments, especially of
              this kind, from the broad and enlightened standpoint of
              common sense and right reason rather than from the
              narrow standpoint of petty preciosity, pettifogging,
              technicality or hair splitting fault finding.’

We conclude that the language of the indictment charging armed robbery, which

precisely tracked the language of the statute, provided adequate notice to the



                                                           8
petitioner of the offense charged, a basis for the entry of a judgment, and protection

from double jeopardy.



              Furthermore, the language of the indictment was concise and

understandable, and the requisite, specific intent could be logically inferred from the

allegations contained in the charge. Similar to the aggravated rape indictment, the

armed robbery indictment alleged that the petitioner forcibly took property from the

victim by violence or placing the victim in fear and while the petitioner was armed

with a pistol. Admittedly, the offense of aggravated rape only required a general

intent, while armed robbery required a specific intent to deprive the owner of the

property taken. Nevertheless, we believe that nothing less than this specific intent

could be inferred from the conduct alleged.



              We note that, in Ruff, 978 S.W.2d at 100, the supreme court approved

an indictment charging the defendant with aiding and abetting an aggravated rape,

the offense occurring after the effective date of the 1989 criminal code. While the

indictment cited the aggravated rape statute, the indictment did not cite the criminal

responsibility statute, which requires that a defendant act Awith intent to promote or

assist the commission of the offense, or to benefit in the proceeds or results of the

offense ....” Tenn. Code Ann. § 39-11-402 (1997)(emphasis added).



              The supreme court in Ruff concluded its discussion by stating that,

Awhere the constitutional and statutory requirements outlined in Hill are met, an

indictment which cites the pertinent statute and uses its language will be sufficient to

support a conviction.” Id. at 100. However, we fail to comprehend how citation to



                                                          9
the aggravated rape statute in that case rendered the specific intent required by the

criminal responsibility statute more easily inferable. Once again, we decline to hold

that citation to the relevant statute is a prerequisite to sufficiency of the indictment.

The language of the indictment in this case was adequate under the Hill standard.



              Count five of the petitioner’s indictment charged the offense of

aggravated kidnapping. At the time of the petitioner’s offense, an aggravated

kidnapping occurred when a

              person...unlawfully seizes, confines, inveigles, entices,
              decoys, abducts, conceals, kidnaps or carries away
              another with the felonious intent to:...[d]etain the other
              against his will;...when...[the] defendant is armed with a
              deadly weapon.

Tenn. Code. Ann. § 39-2-301 (1982). The petitioner’s indictment contained the

following language:

              that Tim Denton...on...August, 1989,...did unlawfully, and
              feloniously seize, confine, inveigle, entice, decoy, abduct,
              conceal, kidnap or carry away Dorothy E. Essary, with
              the felonious intent to detain the said Dorothy E. Essary
              against her will, and while the said Dorothy E. Essary
              was secretly confined or unlawfully detained, said secret
              confinement or unlawful detention was accomplished
              while the defendants were armed with a...pistol.


In this instance, the statute contained the requisite mens rea, i.e., a defendant must

act with the felonious intent to detain another against her will. The indictment also

set forth this required intent. Accordingly, the petitioner’s May 20, 1999 argument is

without merit.



              Because the petitioner cannot prevail on either procedural or

substantive grounds, we affirm the judgment of the trial court.



                                                            10
                                 _________________________
                                 Norma McGee Ogle, Judge

CONCUR:



_________________________
James Curwood Witt, Jr., Judge



_________________________
John K. Byers, Senior Judge




                                            11
