      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE               FILED
                    NOVEMBER 1997 SESSION
                                                    December 23, 1997

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
GENE HIBBARD,
                                ) C.C.A. No. 03C01-9702-CR-00077
      Appellant,                )
                                ) Knox County
V.                              )
                                ) Honorable Ray L. Jenkins, Judge
                                )
HOWARD CARLTON, WARDEN,         )
& STATE OF TENNESSEE,           )
                                ) (Habeas Corpus-Rape)
      Appellee.                 )




FOR THE APPELLANT:               FOR THE APPELLEE:

Gene Hibbard, Pro Se             John Knox Walkup
N.E.C.C.                         Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683-5000     Marvin E. Clements
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 Randall E. Nichols
                                 District Attorney General
                                 City-County Building
                                 Knoxville, TN 37902



OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                               OPINION
          The appellant, Gene Hibbard, was convicted by a jury of two counts of

aggravated rape. He was sentenced to thirty years incarceration in the

Tennessee Department of Correction. He, thereafter, filed a petition for habeas

corpus relief. In his petition he alleged that his convictions were void because

the indictments against him were insufficient for failing to cite the applicable code

section and failing to allege a mens rea. The trial court dismissed the petition

finding that it was not proper for habeas corpus review. The trial court based this

finding on the fact that the appellant’s convictions were not void on their face and

that his sentence had not expired. He appeals this dismissal. Upon review, we

affirm.



          The appellant contends that the indictment against him did not sufficiently

allege the mens rea for aggravated rape.1 The appellant bases his theory on

State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, filed

June 20, 1996). The Tennessee Supreme Court has recently reversed Hill

holding that the indictment was constitutionally and statutorily valid. State v. Hill,

No. 01-S-01-9701-CC-00005 (Tenn. Nov. 3, 1997). The Court held the following:



          [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


          1
          The first indictm ent against the appe llant stated that he “unlaw fully, and feloniously did
sexually penetra te [the victim] to wit: Ge ne Hibbard did p enetrate the vagin a of the said [victim ] with
his penis, the said [v ictim] being a fem ale less than thirteen (1 3) years of age, co ntrary to the Statute
and against the peace and dignity of the State.” The second indictment stated that the appellant
“unlawfully and feloniously did sexually penetrate [the victim], to wit: cunnilingus, the said [victim]
being a female less than thirteen (13) years of age, contrary to the Statute and against the peace and
dignity of the State.”
. . . .”

                                                     -2-
                      (3) the mental state can be logically
                      inferred from the conduct alleged.

Id. at 3.



        We find that the appellant’s indictment sufficiently alleged the elements of

aggravated rape and was constitutionally and properly drafted. The facts as

alleged in the indictment make the mental state required for conviction logically

obvious. The appellant was fully apprised of the charges against him in ordinary

and concise language. His indictment gave the convicting court an adequate

basis for subject matter jurisdiction. Therefore, the appellant’s convictions are

void and are improper for habeas corpus review.


        Accordingly, we find no error of law mandating reversal. The judgment of

the trial court is affirmed.




                                                  __________________________
                                                  PAUL G. SUMMERS, Judge




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CONCUR:




______________________________
JOSEPH B. JONES, Presiding Judge




______________________________
J. CURWOOD WITT, Judge




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