       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                         DECEMB ER SESSION, 1997       January 26, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

RANDY BLAINE KNIGHT,               )    C.C.A. NO. 03C01-9705-CR-00162
                                   )
           Appe llant,             )
                                   )    JOHNSON COUNTY
                                   )
V.                                 )
                                   )    HON. LYNN BROWN, JUDGE
HOWARD CARLTON, WARDEN,            )
                                   )
           Appellee.               )    (HABEAS C ORPU S)




FOR THE APPELLANT:                 FOR THE APPELLEE:

RAND Y KN IGHT , pro se            JOHN KNOX WALKUP
N.E.C.C. #101642                   Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683            TIMOTHY F. BEHAN
                                   Assistant Attorney General
                                   2nd Floor, Cordell Hull Building
                                   425 Fifth Avenue North
                                   Nashville, TN 37243

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




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION
              The Appe llant, Ra ndy B laine K night, a ppea ls as of right from the trial

court’s dismissal of his Petition for Habeas Corpus Relief.              We affirm the

judgm ent of the tria l court.



              The record shows that on December 1 2, 1983, Appellant was

convicted of two counts of second degree burglary, one count of grand larceny,

one count o f aggravated rape, and one count of aggravated kidnapping. He

received an effective sentence of seventy (70) years in the Tennessee

Department of Correction. On September 11, 1996, he filed the petition for writ

of habeas corpus relief wh ich is the subject of this appeal. In essence, Appellant

argues that the indictment charging all of the offenses is void because the

culpab le men tal state for e ach offen se was not allege d in the ind ictmen t.



              The first count of the indictment, charging Appellant with second

degree burglary, alleged that he did “break and enter a dwelling house during the

daytime . . . with the felonio us intent to c omm it a felony there in, to-wit:

larceny . . . .” The second count of the indictment charged Appellant with the

crime of grand larceny and alleged that the property was taken “with the felonious

intent to perm anently d eprive the said true o wner the reof.” The third count of the

indictment charged second degree bu rglary b y allegin g that th e App ellant d id

“felonio usly break and enter a dwelling house by daytime . . . with the felonious

intent to com mit a felon y therein, to-w it: an aggra vated rap e . . . .” The fou rth

count of the indictment charged that the Appellant committed aggravated rape

and tha t he did “felo niously, se xually pen etrate another, to-wit: [victim] and that

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force or coercion was used to accomplish the act . . . .” The indictment further

alleged that he was armed with a .25 c aliber pisto l, caused person al injury to the

victim, and pe netrated her gen ital area with his finger. The fifth count of the

indictment alleged that Appellant committed the offense of aggravated kidnapping

and included allegations that he did “seize, confine, inveigled, enticed, decoyed,

abducted, concealed, kidnapped or carried away, [victim] with the felonious intent

to cause the said [vic tim] to b e con fined s ecretly , again st her w ill or to de tain the

said [victim] against her will . . . .” The indictm ent furth er alleg ed se rious b odily

injury to the victim and that a deadly weapon was used during the commission

of the crim inal act.



              Coun ts 1, 2, 3, and 5 plainly and clearly alleged the Appellant’s

felonious intent to sa tisfy any req uireme nts of allegations of the appropriate mens

rea.



              Appellant places the most emphasis in his argum ent on the fourth

count of the indictment, which alleges in full as follows:


       The Gran d Juro rs for the State a nd Co unty afo resaid , upon their
       oath present and say that Rand y Blaine Knigh t on or about the 24
       day of July, 1983, in the State and C ounty afores aid did unlaw fully
       and feloniously, sexually pen etrate another, to-wit: [victim] and that
       force or coercion was used to accomplish the act and that the
       defendant was armed with a weapon, to-wit: a .25 caliber autom atic
       pistol. The defenda nt cause d perso nal injury to th e said [victim ].
       The defend ant’s penis touch ed he r genita l area a nd he did
       penetra te her genital area with his finger se veral tim es, an d did
       injure her by striking h er with his g un, and biting her, co ntrary to the
       Statute, [a]gainst the peace and dignity of the State of Tennessee.


              In support of his argument, Appellant relies upon the decision of this

Court in State v. Rog er Da le Hill, C.C.A. No. 01C01-9508-CC-00267, Wayne

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Coun ty (Tenn . Crim. A pp., Nas hville, June 20, 199 6). However, our supreme

court reversed this Court’s decision in Hill. See State v. Hill, 954 S.W.2d 725

(Tenn . 1997).



             Furthermore, a panel of this Co urt has previously h eld in a similar

case that the ruling of this Court in State v. Rog er Da le Hill, was based upon an

interpretation of Tennessee Code Annotated section 39-11-301(c), which was

enacted in 1989. See Gregory L. Hatton v. State of Tennessee, C.C.A . No.

02C01-9611-CC-00407, slip op. at 2, Lake County (Tenn. Crim. App., Jackson,

Feb. 19 , 1997).



             As in Hatton, Appellant was convicted of an offense which occurred

prior to enactm ent of the 1 989 revis ions to the Crimina l Code. We conclude that

the langu age in the ind ictment charging appellant with various offenses was

sufficient under the law as it existed at the time of the offenses.



             Appe llant’s petition may be dismissed sum marily if the pe tition fails

to state a co gnizab le claim. See Passa rella v. State , 891 S.W.2d 619, 627

(Tenn. Crim. App. 1994); State ex rel. Byrd v. Bomar, 381 S.W.2d 280, 283

(Tenn. 1964); Tenn. Code Ann. § 29-21-109. The trial court properly dismissed

Appellant’s petition.



             The judgment of the trial court is affirmed.




                                 ____________________________________
                                 THOMAS T. W OODALL, Judge

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CONCUR:



___________________________________
DAVID H. WELLES , Judge


___________________________________
DAVID G. HAYES, Judge




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