I N T H E S U P R E M E C O U R T O F T E N N E S S E E
A T N A S H V I L L E
( H E A R D A T J A C K S O N )
S T A T E O F T E N N E S S E E ) F O R P U B L I C A T I O N
)
) F I L E D : N O V E M B E R 3 , 1 9 9 7
A p p e l l a n t )
) W A Y N E C O U N T Y
v . )
) H O N . J A M E S L . W E A T H E R F O R D ,
R O G E R D A L E H I L L , S R . ) J U D G E
)
A p p e l l e e ) N O . 0 1 - S - 0 1 - 9 7 0 1 - C C - 0 0 0 0 5
FILED
November 3, 1997
Cecil W. Crowson
F o r A p p e l l e e : F o r A p p e l l a n t : Appellate Court Clerk
S H A R A A N N F L A C Y J O H N K N O X W A L K U P
D i s t r i c t P u b l i c D e f e n d e r A t t o r n e y G e n e r a l a n d R e p o r t e r
W I L L I A M C . B R I G H T K A T H Y M O R A N T E
A s s i s t a n t P u b l i c D e f e n d e r D e p u t y A t t o r n e y G e n e r a l
P u l a s k i , T N N a s h v i l l e , T N
T . M I C H A E L B O T T O M S
D i s t r i c t A t t o r n e y G e n e r a l
R I C H A R D H . D U N A V A N T
A s s i s t a n t D i s t r i c t A t t o r n e y
G e n e r a l
P u l a s k i , T N
O P I N I O N
R E V E R S E D B I R C H , J .
2
We accepted the State’s application for review in this
cause in order to determine the validity of an indictment which
charged aggravated rape.1 The Court of Criminal Appeals held the
indictment void and the subsequent conviction invalid because the
language of the indictment failed to allege a culpable mental
state.2
This issue arises because the Sentencing Reform Act of
1989 provides that a culpable mental state is required to establish
an offense unless the definition of the offense “plainly dispenses
with a mental element.” Tenn. Code Ann. § 39-11-301(b)(1991).
Further, when a statute omits reference to a specific mens rea, but
does not plainly dispense with a mens rea requirement, then proof of
“intent,” “knowledge,” or “recklessness” will suffice to establish
a culpable mental state. Tenn. Code Ann. § 39-11-301(c). The
statute defining aggravated rape does not expressly require a
culpable mental state, neither does it plainly state that no such
mental state is required. Thus, proof of intent, knowledge or
recklessness is required to sustain a conviction for that offense.
Since a plain reading of Tenn. Code Ann. §§ 39-11-301(b)
and (c) leads us to conclude that the Legislature intended that a
culpable mens rea be an element of the offense of aggravated rape,
the question here is whether failure to allege such mens rea in an
1
Aggravated rape is defined in Tenn. Code Ann. § 39-13-
502(a)(4) as the “unlawful sexual penetration of a victim by the
defendant . . . [when] [t]he victim is less than thirteen (13) years
of age.”
2
The terms “mental state,” “culpable mental state,” and “mens
rea” are used interchangeably.
3
indictment charging that offense constitutes a fatal defect
rendering the indictment void. We hold that for 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
(3) the mental state can be logically
inferred from the conduct alleged.
I
On or about June 22, 1991, the victim, M.H.,3 and her
older sister were spending the night with their paternal
grandmother. M.H. was about eight years old. The victim’s father,
defendant Roger Dale Hill, also spent the night at the house. M.H.,
her sister, and Hill went to sleep on the floor while her
grandmother slept on a couch nearby. According to M.H., after her
sister and grandmother went to sleep, Hill pulled up her nightgown,
pulled her panties over, and put “[h]is finger in my private,” and
then “got on top of me and . . . started putting his private part
3
Due to the age of the victim and the nature of the offense, we
identify the victim by initial only.
4
into mine.” Hill then began to move “[u]p and down.” When M.H.
told Hill to stop, he did.
A few days later, M.H. related the night’s events to her
mother. Subsequently, Hill was arrested and charged with aggravated
rape. The jury convicted Hill of aggravated sexual battery. The
trial court sentenced him to a term of twelve years and imposed a
fine in the amount of $25,000. At the hearing on motion for new
trial, Hill contended, for the very first time, that the indictment
was defective because it failed to specify a culpable mental state
for the crime charged. The trial court rejected this contention and
approved the verdict. On appeal, the intermediate appellate court
ruled that the indictment was indeed void for failure to allege mens
rea, and the trial court was therefore without jurisdiction.
II
Because the issues before us are questions of law, our
review is de novo. State v. Davis, 940 S.W.2d 558, 561 (Tenn.
1997).
The State contends that the indictment is valid because an
indictment need not specify the culpable mental state when the
language therein is otherwise sufficient to inform the accused of
the charge.
The indictment in question contains six counts, each in
the following language:
5
[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, all of
which is against the peace and
dignity of the State of Tennessee.
As for constitutional requirements, the Sixth and
Fourteenth Amendments to the United States Constitution and Article
I, Section 9 of the Tennessee Constitution guarantee to the accused
the right to be informed of the nature and cause of the accusation.
Generally stated, an indictment is valid if it provides sufficient
information (1) to enable the accused to know the accusation to
which answer is required, (2) to furnish the court adequate basis
for the entry of a proper judgment, and (3) to protect the accused
from double jeopardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn.
1991); VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn. Crim. App.
1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980).
We recognize, however, that an indictment need not conform
to traditionally strict pleading requirements. Rather, as the Court
noted in State v. Pearce,
the strictness required in indict-
ments had grown to be a blemish and
inconvenience in the law and the
administration thereof. That more
offenders escaped by the over-easy
ear given to exceptions to
indictments, than by the
manifestation of their innocence; and
that the grossest crimes had gone
unpunished by reason of these
unseemly niceties. . . . [W]hile
tenderness ought always to prevail in
criminal cases, yet, that it does not
require such a construction of words
as would tend to render the law
6
nugatory and ineffectual, nor does it
require of us to give into such nice
and strained critical objections as
are contrary to its true meaning and
spirit. . . .[I]n criminal cases,
where the public security is so
deeply interested in the prompt
execution of justice, it seems the
minor consideration should give way
to the greater, and technical
objections be overlooked, rather than
the ends of society be defeated.
7 Tenn. (Peck) 66-67 (1823). Over the years, this Court has made
reference to “the growing inclination of this court to escape from
the embarrassment of technicalities that are empty and without
reason, and tend to defeat law and right.” State v. Cornellison,
166 Tenn. 106, 59 S.W.2d 514, 515 (Tenn. 1933). Indeed, the purpose
for the traditionally strict pleading requirement was the existence
of common law offenses whose elements were not easily ascertained by
reference to a statute. Such common law offenses no longer exist.
See Tenn. Code Ann. § 39-11-102(a) (1991). Thus, we now approach
“attacks upon indictments, especially of this kind, from the broad
and enlightened standpoint of common sense and right reason rather
than from the narrow standpoint of petty preciosity, pettifogging,
technicality or hair splitting fault finding.” United States v.
Purvis, 580 F.2d 853, 857 (5th Cir. 1978)(citing Parson v. United
States, 189 F.2d 252, 253 (5th Cir. 1951)).
The form of an indictment is subject to statutory
prescription also. Tennessee Code Annotated § 40-13-202 (1990)
provides that an indictment must:
state the facts constituting the
offense in ordinary and concise
language, without prolixity or
7
repetition, in such a manner as to
enable a person of common
understanding to know what is
intended, and with that degree of
certainty which will enable the
court, on conviction, to pronounce
the proper judgment. . . .
This statute, procedural in nature, was originally enacted
in 1858, one hundred and thirty-one years prior to the enactment of
the Sentencing Reform Act of 1989, which expressly abolished common
law offenses and statutorily specified the conduct necessary to
support a criminal prosecution in Tennessee. See Tenn. Code Ann. §
39-11-102(1991) and the Sentencing Commission Comments thereto.
When the General Assembly enacted the Sentencing Reform
Act of 1989, it included significant references to the requirement
for a culpable mental state. One such reference is found in Tenn.
Code Ann. § 39-11-301 (1991):
(a)(1) A person commits an
offense who acts intentionally,
knowingly, recklessly or with
criminal negligence, as the
definition of the offense requires,
with respect to each element of the
offense.
. . .
(b) A culpable mental state is
required within this title unless the
definition of an offense plainly
dispenses with a mental element.
(c) If the definition of an
offense within this title does not
plainly dispense with a mental
element, intent, knowledge or
recklessness suffices to establish
the culpable mental state.
8
Another reference is found in Tenn. Code Ann. § 39-11-201
(1991), which codified the principles regarding burden of proof:
(a) No person may be convicted
of an offense unless each of the
following is proven beyond a
reasonable doubt:
. . .
(2) The culpable mental state
required.
Yet another reference is found in Tenn. Code Ann. § 39-11-101
(1991):
The general objectives of the
criminal code are to . . .
(2) Give fair warning of what
conduct is prohibited, and guide the
exercise of official direction in law
enforcement, by defining the act and
the culpable mental state which
together constitute an offense.
Arguably, the first two of these references pertain
primarily to the evidence necessary to sustain a conviction. Their
pertinence, then, to the requirements of a valid indictment is
tangential and secondary at best. Obviously, the description of the
proof necessary to sustain a conviction must be both more inclusive
and conclusive than the language of an indictment.4
Generally, an indictment must allege the material elements
of an offense. Torcia, Wharton’s Crim. Pro. § 235 at 59 (1990).
Again, the touchstone for constitutionality is adequate notice to
the accused.
4
Any confusion may be due, at least in part, to the loose usage
of the phrase “essential elements,” which can mean the elements
necessary for conviction or the elements necessary to inform the
accused of the charge.
9
The authors of the Model Penal Code suggest that
culpability is not a material element of an offense, although at
common law, “scienter” was a necessary element and had to be alleged
in every indictment. The common-law rule, however, has been
modified as to statutory offenses. In modern practice, it is
unnecessary to charge guilty knowledge unless it is included in the
statutory definition of the offense. 41 Am.Jur.2d Indictments and
Information § 126 (1995).
The offense alleged in the indictment under consideration
is aggravated rape. Tennessee Code Annotated § 39-13-502(a)(4)5
defines the applicable category of aggravated rape as the “unlawful
sexual penetration of a victim by the defendant, . . . [when] the
victim is less than thirteen (13) years of age.” This statute does
not specify a mental state. Thus, pursuant to Tenn. Code Ann. §
39-11-301(c), the mental element is satisfied if the indictment
alleges that the defendant committed the proscribed act with intent,
knowledge, or recklessness. Obviously, the act for which the
defendant is indicted, “unlawfully sexual penetrat[ing]” a person
under the age of thirteen, is committable only if the principal
actor’s mens rea is intentional, knowing, or reckless.6 Thus, the
required mental state may be inferred from the nature of the
criminal conduct alleged. Clearly, the language of this indictment
provides adequate notice to both the defendant and the trial court
5
This statute has now been amended so that rape of a child less
than thirteen years of age is a separate offense. See Tenn. Code
Ann. § 39-13-522.
6
This is true because even while voluntarily intoxicated, a
defendant may recklessly rape a victim or recklessly disregard the
age of a victim. See State v. Jones, 889 S.W.2d 225, 228-29 (Tenn.
Crim. App. 1994).
10
of the offense alleged protects the defendant from subsequent
reprosecution for this same offense. The form of the indictment
complies with the requirements of Tenn. Code Ann. § 40-13-202.
In conclusion, we hold that the indictment in this case
charging the defendant with the offense of aggravated rape, in
violation of Tenn. Code Ann. § 39-13-502, meets constitutional and
statutory requirements of notice and form and is, therefore, valid.
Accordingly, the judgment of the Court of Criminal Appeals is
reversed, and the appeal is dismissed. Costs of this appeal are
taxed to Hill; let execution issue if necessary.
____________________________________
ADOLPHO A. BIRCH, JR., Justice
CONCUR:
Anderson, C.J.
Drowota, Reid, Holder, JJ.
11