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
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CONCUR:
_____________________________
Norma McGee Ogle, Judge
_____________________________
Cornelia A. Clark, Special Judge
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