        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 7, 2011

            CHARLES E. THOMPSON v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                No. P-24665, P-22149, P-27258    Chris Craft, Judge


                 No. W2010-02509-CCA-R3-PC - Filed May 16, 2012


Petitioner, Charles Thompson, appeals from the post-conviction court’s denial of his three
separate petitions for post-conviction relief in case numbers P-24665, -22149, and -27258.
Petitioner was convicted, following guilty pleas, of the first degree murder of Eddie Johnson
and attempted first degree murder of Brenda Hampton. Following jury trials, he was
convicted for the aggravated assault, especially aggravated robbery, and especially
aggravated kidnapping of Paloy Finnie, see State v. Derrick M. Vernon, et al., No. W1998-
00612-CCA-R3-CD, 2000 WL 490718 at *1 (Tenn. Crim. App. at Jackson, filed Apr. 25,
2000), perm. app. denied (Tenn. Jan. 16, 2001); and the first degree murder of Dedrick
Taylor, see State v. Charles Thompson, No. W1998-00351-CCA-R10-CD, 2001 WL 912715
(Tenn. Crim. App. at Jackson, filed Aug. 9, 2001), perm. app. denied (Tenn. Dec. 31, 2001).
In his brief, Petitioner asserts that the indictments in the three cases above were defective.
After a careful review of the record, we affirm the judgments of the post-conviction court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.

Charles E. Thompson, Wartburg, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Katrina Earley, Assistant
District Attorney General, for the appellee, the State of Tennessee.
                                         OPINION

Procedural History

       In case number P-22149 (Eddie Johnson case), on December 2, 1998, Petitioner pled
guilty to first degree murder and attempted first degree murder and was sentenced to
concurrent sentences of life imprisonment and 15 years, respectively. At Petitioner’s guilty
plea hearing, the prosecutor gave the following factual basis:

        [I]n August of 1993, Ms. Torsha Burks, the girlfriend of [Petitioner] had
        left him and was, in fact, in protective custody with the Federal Bureau of
        Investigation; was giving them information concerning the background of
        the Traveling Vice Lords and criminal activities of the Traveling Vice
        Lords, as well as information specific to [Petitioner] and specific members
        of the Traveling Vice Lords.

        During the course of that and in a continuation of events in this case,
        [Petitioner] issued orders for her family, or at least Mr. Eddie Johnson to be
        killed. Mr. Johnson approached the porch along with Ms. Brenda Hampton.
        The [co-]defendant Cordiell Walker and [co-]defendants, who already have
        been disposed of in this case, were waiting for him and did gun down Mr.
        Eddie Johnson and wounded Ms. Brenda Hampton, and reported back to
        [Petitioner] that they had accomplished what they had been told to do.

       Petitioner filed a timely pro se petition for post-conviction relief, alleging that his
pleas were involuntary; that he was denied the effective assistance of counsel; and that newly
discovered evidence had been discovered since his guilty pleas. Petitioner was subsequently
appointed counsel and filed amended petitions, which the trial court denied following a
hearing in an order dated August 18, 2010.

       In case number P-24665 (Paloy Finnie case), Petitioner was convicted by a jury of
aggravated assault and especially aggravated kidnapping and sentenced to 25 years for each
conviction with his sentences to be served consecutively. This Court affirmed Petitioner’s
convictions and sentences on direct appeal. State v. Derrick M. Vernon, et al., No. W1998-
00612-CCA-R3-CD, 2000 WL 490718 (Tenn. Crim. App. at Jackson, filed April 25, 2000),
perm. app. denied (Tenn. Jan. 16, 2001). An appellate summary of the facts underlying
Petitioner’s convictions can be found in this Court’s opinion cited above. On February 1,
2001, Petitioner filed a pro se petition for post-conviction relief. Petitioner subsequently



                                             -2-
filed an amended petition with the assistance of counsel, which the trial court denied
following a hearing in an order dated August 18, 2010.

        In case number P-27258 (Dedrick Taylor case), Petitioner was convicted by a jury of
first degree murder and sentenced to life without parole. This Court affirmed Petitioner’s
conviction and sentence on direct appeal. State v. Charles Thompson, No. W1998-00351-
CCA-R10-CD, 2001 WL 912715 (Tenn. Crim. App. at Jackson, filed Aug. 9, 2001), perm.
app. denied (Tenn. Dec. 31, 2001). An appellate summary of the facts underlying
Petitioner’s conviction can be found in this Court’s opinion cited above. On December 6,
2002, Petitioner signed a pro se petition for post-conviction relief, which was filed with the
trial court on April 3, 2003, alleging that he received ineffective assistance of counsel at trial;
that there had been newly discovered evidence since his conviction; and that the prosecutor
had failed to disclose evidence favorable to him at trial. Petitioner subsequently filed
amended petitions with the assistance of counsel. Following a hearing, the trial court denied
relief in an order dated August 18, 2010.

Analysis

       In this appeal, Petitioner asserts that the indictments in the three cases above are
defective in that: 1) the indictments in the Dedrick Taylor and Eddie Johnson cases did not
specifically allege that Petitioner “ordered” the murder of the victims, which Petitioner
asserts is an essential element of the offense, and that the indictments therefore failed to
provide adequate notice of his charges; and 2) the indictment in the Paloy Finnie case did not
specifically allege that Petitioner “remove[d]” the victim, which Petitioner asserts is an
essential element of especially aggravated kidnapping. The State responds that Petitioner has
waived this issue by failing to include it in his post-conviction petitions or amended petitions
or present any evidence regarding the issue at the post-conviction hearings.

       A post-conviction petitioner is obliged to establish his claims by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). On appeal, the appellate court
affords the trial court’s findings of fact the weight of a jury verdict, and these findings are
conclusive on appeal unless the evidence preponderates against them. Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.
1997).

        Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgement of any [constitutional] right.” Tenn. Code Ann. § 40-
30-103 (2006). “If the facts alleged, taken as true, fail to show that the petitioner is entitled
to relief or fail to show that the claims for relief have not been waived or previously
determined, the petition shall be dismissed.” Id. § 40-30-106(g). “A ground for relief is

                                                -3-
previously determined if a court of competent jurisdiction has ruled on the merits after a full
and fair hearing.” Id. § 40-30-106(h).

        A petition for post-conviction relief “must contain a clear and specific statement of
all grounds upon which relief is sought, including full disclosure of the factual basis of those
grounds.” T.C.A. § 40-30-106(d). None of Petitioner’s several petitions and amended
petitions for post-conviction relief contain a claim that his indictments in these three cases
were defective; nor did Petitioner raise the issue on direct appeal. Nevertheless, we
recognize that defects in an indictment that fails to state an offense may be “noticed by the
court at any time during the pendency of the proceedings.” Tenn. R. Crim. P. 12(b)(2); State
v. Nixon, 977 S.W.2d 119, 120 (Tenn. Crim. App. 1997).

       At the final post-conviction hearing, at which Petitioner represented himself, in
Petitioner’s closing argument, he argued that the indictment in the Dedrick Taylor case was
defective:

        Also that the indictment was a defective indictment, Your Honor. The
        indictment did not allege that the essential elements in State versus Trust
        [sic] and State versus Hayes [sic], that I was responsible for the actions of
        Grover Haywood, Thomas Cummings, Marico Jackson and Charles Roland
        (phonetics), that I would have to be – that I would have to answer for the
        responsibility of my co-defendant[s]. It did not allege it in the indictment,
        Your Honor.

        Rule 52(b) states that you cannot be committed [sic] for a crime – convicted
        of a crime that’s not in the indictment, Your Honor, and the conviction
        cannot stand, Your Honor.

        In this case, that’s what I was convicted of based on my co-defendant’s
        actions, that they committed the crime and I ordered the murder of Deputy
        [Dedrick] Taylor, Your Honor, and it states nothing about me ordering
        anything in the indictment.

       In his rebuttal, Petitioner argued that the indictment in the Eddie Johnson case was
also defective:

        Your Honor, again, in the case of petition 22149, I was citing that, too, also,
        Your Honor, that the indictment was a defective indictment. I think Mr.
        Paris [Petitioner’s post-conviction counsel] had touched on that, that the
        indictment was a defective indictment.

                                              -4-
         When the State – the State’s whole argument was that I ordered the murder
         of Eddie Johnson, Your Honor, and there was no – the indictment in whole
         was the co-defendant and myself on August 24, 1993, killed Eddie Johnson
         in violation of Tennessee Rule [sic] Section 39-12-402, I think. It states no
         essential element that I committed – that I ordered – I ordered that these
         crimes to be done, Your Honor. It states in the indictment – in State versus
         Hayes [sic], Your Honor, and State versus Trust [sic] and Brown versus
         State [sic], the indictment is a defective indictment.

       In three separate detailed written orders, the post-conviction court denied Petitioner’s
requests for relief. As pertinent to the issues raised by Petitioner in this appeal, the post-
conviction court concluded that the indictment in the Dedrick Taylor case was not defective
for not specifically alleging that Petitioner “ordered” the victim’s murder because he was
prosecuted under the theory of criminal responsibility, relying on our supreme court’s
decision in State v. Sherman, 266 S.W.3d 395, 408 (Tenn. 2008), which held that a “separate
indictment for criminal responsibility is unnecessary when a defendant has been indicted for
the primary offense.”

        The indictment in case number 94-01918 alleges two counts of especially aggravated
kidnapping of Paloy Finnie. This indictment relates to post-conviction case number P-24665.
In his brief, Petitioner challenges the indictment in that case, asserting that it failed to include
the word “remove,” which Petitioner argues is an “essential element” of a kidnapping
charge.” Especially aggravated kidnapping is defined as “false imprisonment, as defined in
§ 39-13-302” in which the victim is held “for ransom or reward, or as a shield or hostage; or
(4) [w]here the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-305. “A
person commits the offense of false imprisonment who knowingly removes or confines
another unlawfully so as to interfere substantially with the other person’s liberty.” Tenn.
Code Ann. § 39-13-302(a).

        A reading of the indictment in the Paloy Finnie case shows that Petitioner was charged
in count one with “unlawfully and knowingly interfer[ing] substantially with the liberty of
the said Paloy Bernard Finnie in order to hold the said Paloy Bernard Finnie as a hostage, in
violation of T.C.A. 39-13-305. . . .” Count two of the same indictment alleges that Petitioner
“did unlawfully and knowingly confine Paloy Bernard Finnie so as to interfere substantially
with the liberty of the said Paloy Bernard Finnie and did cause the said Paloy Bernard Finnie
to suffer serious bodily injury, in violation of T.C.A. 39-13-305. . . .”

       Tennessee law requires that an indictment “state the facts constituting the offense in
ordinary and concise language . . . in such a manner as to enable a person of common
understanding to know what is intended. . . .” State v. Marshall, 870 S.W.2d 532, 537 (Tenn.

                                                -5-
Crim. App. 1993) (quoting Tenn. Code Ann. § 40-13-202), overruled on other grounds by
State v. Carter, 988 S.W.2d 145 (Tenn. 1999) (holding that an indictment that cites to the
statutory definition of an offense is sufficient). An indictment is valid if it provides sufficient
information to enable the accused to know the accusation to be answered, to furnish the court
with an adequate basis for proper entry of judgment, and to protect the accused from double
jeopardy. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).

        We conclude that the indictment in the Paloy Finnie case did contain sufficient facts
so as to adequately inform Petitioner of the nature and cause of the accusations against him.
We also conclude that the post-conviction court’s analysis regarding the sufficiency of an
indictment for an offense for which a defendant is prosecuted under the theory of criminal
responsibility is correct; therefore, the indictments in the Eddie Johnson and Dedrick Taylor
cases need not have specifically alleged that Petitioner “ordered” their murders. Petitioner
is not entitled to relief on this issue. The trial court correctly denied Petitioner post-
conviction relief in all three cases.

                                        CONCLUSION

       The judgments of the post-conviction court are affirmed.

                                                      _________________________________
                                                      THOMAS T. WOODALL, JUDGE




                                                -6-
