            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                            AT KNOXVILLE                       August 16, 1999

                                                              Cecil Crowson, Jr.
                         MARCH 1999 SESSION                   Appellate C ourt
                                                                  Clerk



JESSE L. DABBS,             *    C.C.A. # 03C01-9806-CR-00199

      Appellant,            *    MORGAN COUNTY

VS.                         *    Hon. E. Eugene Eblen, Judge

STATE OF TENNESSEE,         *    (Habeas Corpus)

      Appellee.             *




For Appellant:                   For Appellee:

Jesse L. Dabbs, pro se           John Knox Walkup
BMCX, Box 2000                   Attorney General and Reporter
Wartburg, TN 37887
                                 Ellen H. Pollack
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

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




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

               The petitioner, Jesse L. Dabbs, appeals the trial court's dismissal of

his petition for writ of habeas corpus. In this appeal of right, the single issue

presented for review is whether the petition was properly dismissed without the

appointment of counsel and without an evidentiary hearing. We affirm the judgment

of the trial court.



               On June 8, 1990, the petitioner was indicted on six counts of

aggravated rape, two counts of aggravated kidnapping, and one count of attempted

aggravated kidnapping. On June 6, 1991, the petitioner entered best interest guilty

pleas to five counts of aggravated rape and one count of attempted kidnapping.

The trial court imposed Range I sentences as follows:

               Offense                                           Term

               Aggravated rape                                   20 years
               Aggravated rape                                   20 years
               Aggravated rape                                   20 years
               Attempt to commit aggravated kidnapping           5 years
               Aggravated rape                                   22-1/2 years
               Aggravated rape                                   22-1/2 years



               The two twenty-two and one-half year sentences were ordered to be

served concurrently with each other but consecutively with the remaining sentences.

The aggregate term of the Range I sentence is 87-1/2 years. Other counts of the

indictments were dismissed as a result of the plea agreement. The petitioner

appealed the sentence imposed by the trial court. On September 15, 1994, this

court affirmed the sentence. State v. Jesse L. Dabbs, No. 01C01-9308-CR-00253

(Tenn. Crim. App., at Nashville, Sept. 15, 1994). Application for permission to

appeal to the supreme court was denied January 30, 1995.



               The petitioner filed this petition for writ of habeas corpus on April 2,

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1997. He alleged that he was illegally imprisoned and warranted relief due to fatally

deficient indictments for aggravated rape and attempted aggravated kidnapping.

Two aggravated rape indictments brought pursuant to the 1989 Act allege, in

pertinent part, as follows:

              that JESSE L. DABBS ... did engage in unlawful sexual
              penetration of [the victim] ... and force or coercion was
              used ... and Jesse L. Dabbs was armed with a weapon ...
              in violation of [Tenn. Code Ann.] § 39-13-502 ....

The remaining three aggravated rape indictments for offenses occurring before the

1989 Act allege, in pertinent part, as follows:

              that JESSE L. DABBS ... with force and arms, ...
              unlawfully, and feloniously committed the crime of
              aggravated rape by subjecting [the victim] to unlawful
              sexual penetration by force or coercion while ... armed
              with a deadly weapon ... in violation of [Tenn. Code Ann.]
              § 39-2-603 ....

The sixth challenged indictment for attempted aggravated kidnapping is not included

in the record and any issue regarding the sufficiency of that indictment is waived.

Tenn. R. App. P. 36(a).




              The petitioner contended that the indictments failed to state the

required mens rea pursuant to Tenn. Code Ann. § 39-11-301 and, therefore, the trial

court lacked jurisdiction to adjudicate guilt. The petitioner based his claim upon an

opinion by this court in State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-00267

(Tenn. Crim. App., at Nashville, June 20, 1996). When the supreme court reversed

that decision, the trial court dismissed the petitioner's complaint. See State v. Hill,

954 S.W.2d 725 (Tenn. 1997).



              In Hill, our supreme court ruled that "an indictment which fails to allege

[a] mental state will be sufficient to support ... [a conviction] so long as, [among

other things], the mental state can be logically inferred from the conduct alleged."

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Id., at 726-27. The indictment in Hill charged that "[the defendant] did unlawfully

sexually penetrate [the victim] a person less than thirteen (13) years of age, in

violation of Tennessee Code Annotated 39-13-502. ..." Id., slip op. at 5 (alteration in

original). In Ruff v. State, 978 S.W.2d 95, 96-97 (Tenn. 1998), our supreme court

applied the Hill analysis to determine whether a post-1989 Act indictment for

aggravated sexual battery was sufficient. Our high court held that "the intentional

nature of aggravated sexual battery may be inferred from the conduct alleged in the

indictment--unlawful sexual contact." Id. at 97 (emphasis in original). Our supreme

court has held that the Hill analysis is applicable to pre-1989 Act indictments, as

well. Dykes v. Compton, 978 S.W.2d 528, 530 (Tenn. 1998).



              The language of the indictments challenged here is substantially the

same as that in Hill and Ruff. In our view, the culpable mental state for aggravated

rape can be logically inferred from the conduct alleged. Moreover, our supreme

court recently ruled that an indictment which makes reference to the statute

allegedly violated will serve as satisfactory notice. State v. Carter, 988 S.W.2d 145

(Tenn. 1999). Here, there was a statutory reference in each indictment. In our view,

these holdings control the disposition of the case. The indictments satisfy the

standards established by our supreme court.



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge




                                           4
CONCUR:



_____________________________
Norma McGee Ogle, Judge



_____________________________
Cornelia A. Clark, Special Judge




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