            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE              FILED
                          NOVEMBER 1998 SESSION
                                                           December 11, 1998

                                                           Cecil W. Crowson
                                                          Appellate Court Clerk
GARY PHELPS
                                         )      NO. 01C01-9802-CC-00088
       Appellant,                        )
                                         )      HICKMAN COUNTY NO. 96-5182C
VS.                                      )
                                         )      HON. HENRY DENMARK BELL,
DAVID MILLS, Warden                      )      JUDGE
                                         )
       Appellee.                         )      (Habeas Corpus)
                                         )
                                         )      AFFIRMED - RULE 20


                                    ORDER


      Appellant, GARY PHELPS, appeals the trial court's summary dismissal of his

petition for writ of habeas corpus. Appellant claims his indictment for aggravated

rape and aggravated sexual battery was void for failing to set forth the requisite

mens rea for each offense.



      Our Supreme Court’s decision in Hill established the requirements for a valid

indictment when the legislature does not expressly require nor plainly dispense with

the requirement for a culpable mental state, and the indictment fails to allege a

mental state. Those requirements are:

       (1) the language of the indictment [must be] 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 [must meet] the requirements of Tenn.
       Code Ann. § 40-13-202; and

       (3) the mental state [must be able to] be logically inferred from the
       conduct alleged.

State v. Hill, 954 S.W.2d 725, 726-27 (Tenn. 1997).



      The issue in this appeal falls squarely within the purview of Hill. The

indictment in question was returned in October 1990, and used the following

language:
       “Gary Phelps heretofore on or before the 12th day of December,
       1989, in the County and State aforesaid did unlawfully sexually
       penetrate [victim’s name], a child less than thirteen (13) years of age
       at the time of the commission of this offense, in violation of TCA 39-
       13-502.”


       “. . . on or before the 12th day of December, 1989, in the County and
       State aforesaid, the said Gary Phelps, did [sic] unlawfully and with
       force or coercion, did have unlawful sexual contact with [victim’s
       name], a child under the age of thirteen (13) years of age, in violation
       of TCA 39-13-505.”


Applying the Hill analysis to this indictment, the appellant’s claim fails.



       The judgment of the trial court is affirmed pursuant to Rule 20, Tennessee

Court of Criminal Appeals. It appearing that the appellant is indigent, costs shall be

taxed to the state.



       So ordered. Enter:




                                                        _______________________
                                                        JOE G. RILEY, JUDGE



CONCUR:




____________________________
PAUL G. SUMMERS, JUDGE




____________________________
L.T. LAFFERTY, SENIOR JUDGE
