FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
May 17, 1999
AT KNOXVILLE
Cecil Crowson, Jr.
Appe llate Court C lerk
JANUARY 1999 SESSION
TIM DENTON, * C.C.A. NO. 03C01-9712-CR-00536
APPELLANT, * MORGAN COUNTY
VS. * Hon. E. Eugene Eblen
STATE OF TENNESSEE, * (Habeas Corpus)
APPELLEE. *
For Appellant: For Appellee:
Tim Denton, pro se John Knox Walkup
M. C. R. C. F. Box 2000 Attorney General and Reporter
Wartburg, TN 37887 450 James Robertson Parkway
Nashville, TN 37243-0493
Ellen Pollack
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Frank Harvey
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763
OPINION FILED: ____________________
AFFIRMED
NORMA MCGEE OGLE, JUDGE
OPINION
The petitioner, Tim Denton, appeals the Morgan County Criminal
Court’s dismissal of his petition for a writ of habeas corpus. On November 27, 1989,
a Cocke County Grand Jury indicted the appellant for aggravated rape, armed
robbery, and aggravated kidnapping, occurring in August of 1989. Following a trial
by jury, the Cocke County Criminal Court convicted the petitioner of all three
offenses and imposed an effective sentence of twenty-two (22) years incarceration
in the Tennessee Department of Correction.
The petitioner filed a pro se petition for a writ of habeas corpus on April
10, 1997. On November 6, 1997, the Morgan County Criminal Court dismissed the
petition without appointing counsel or conducting an evidentiary hearing. The trial
court based its summary dismissal of the petition on the decision of our supreme
court in State v. Hill, holding that the facts and circumstances of the petitioner’s case
fall within the purview of Hill. 954 S.W.2d 725 (Tenn. 1997).
On appeal, the petitioner presents two issues for our review:
(I) whether the trial court erred by dismissing his petition
for a writ of habeas corpus without appointing counsel or
conducting an evidentiary hearing; and
(II) whether the indictment for aggravated rape, armed
robbery, and aggravated kidnapping in his case was
fatally defective for failure to allege the requisite mens
rea, thereby depriving the convicting court of jurisdiction.
Following a thorough review of the record, we affirm the judgment of the trial court.
2
Analysis
The petitioner, citing Tenn. Code Ann. § 8-14-205 and Supreme Court
Rule 13, § 1, argues that he has a constitutional right to counsel in habeas corpus
proceedings. In addition, the petitioner contends that the trial court’s summary
dismissal of his petition for a writ of habeas corpus denied him due process of law.
However, Tenn. Code Ann. § 29-21-109 (1980) provides that A[i]f, from the
showing of the petitioner, the plaintiff would not be entitled to any relief, the writ may
be refused...” Moreover, Tenn. Code Ann. § 40-14-204 (1997) provides for
appointment of counsel in habeas corpus proceedings only as necessary. Finally,
there is no constitutional right to counsel in habeas corpus proceedings. See
Weatherly v. State, 704 S.W.2d 730, 732 (Tenn. Crim. App. 1985). Thus, we have
held that when a petition has been competently drafted and conclusively shows that
the petitioner is entitled to no relief, the trial court may order the petition dismissed
without the appointment of counsel and without an evidentiary hearing. Fredrick v.
State, 906 S.W.2d 927, 930 (Tenn. Crim. App. 1993). See also Russell v. Willis,
437 S.W.2d 529, 531 (Tenn. 1969); State ex rel. Byrd v. Bomar, 381 S.W.2d 280,
282 (Tenn. 1964).
Accordingly, the propriety of the trial court’s summary denial of relief in
this case depends upon the merits of the petitioner’s claim that his convictions for
aggravated rape, armed robbery, and aggravated kidnapping are void because the
indictment charging those offenses failed to allege the mens rea elements of the
offenses. We conclude that the indictment was sufficient and the trial court correctly
dismissed the petition for habeas corpus relief.
3
Initially, the record does not contain the count of the indictment
charging armed robbery. Moreover, the record does not contain the judgments of
conviction indicating which counts of the five count indictment resulted in
convictions. A trial court may dismiss a habeas corpus petition for failure to attach
the judgment forms. Tenn. Code. Ann. § 29-21-107 (1980). Notwithstanding this
rule, Acourts may take judicial notice of...court records in an earlier proceeding of
the same case and the actions of the courts thereon.” Delbridge v. State, 742
S.W.2d 266, 267 (Tenn. 1987). Additionally, the appellate courts are authorized to
supplement incomplete records by the terms of Tenn. R. App. P. 24(e), and may
also consider the contents of their own court records in their consideration of related
cases. Accordingly, we will address the merits of the petitioner’s claim.
In State v. Hill, 954 S.W.2d at 726-27, our supreme court set forth the
following standard for reviewing the sufficiency of an indictment:
[F]or 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 [which requires that an indictment use
“ordinary and concise language”]; and
(3) the mental state can be logically inferred
from the conduct alleged.
4
The court concluded in Hill that an indictment for aggravated rape was sufficient
because it satisfied constitutional and statutory requirements, and “ the act for which
the defendant [was] indicted, ‘ unlawful sexual penetrat[ion]’...is committable only if
the principal actor’s mens rea is intentional, knowing, or reckless. Thus, the
required mental state may be inferred from the nature of the criminal conduct
alleged.” Id. at 729.
Turning to the case at hand, the petitioner’s offenses occurred prior to
the effective date of the 1989 criminal code. The court’s decision in Hill specifically
addressed offenses in the 1989 code for which the statute defining the offense omits
the required mens rea but does not plainly dispense with a mens rea. For those
offenses, the 1989 code provides in a separate statute that intent, knowledge, or
recklessness will suffice. Tenn. Code Ann. § 39-11-301 (c) (1997). Accordingly,
several opinions of this court declined to apply Hill in the context of pre-1989
offenses, and instead analyzed the sufficiency of the indictment under the law in
effect at the time of the offenses. See, e.g., Hughes v. Compton, No. 02C01-9611-
CC-00408, 1997 WL 786170, at *1 (Tenn. Crim. App. at Jackson, December 23,
1997), perm. to appeal denied, (Tenn. 1998); King v. State , No. 01C01-9710-CR-
00487, 1998 WL 712345, at **2-4 (Tenn. Crim. App. at Nashville, October 13,
1998), perm. to appeal denied, (Tenn. 1999); Ali v. State, No. 03C01-9706-CC-
00207, 1998 WL 166481, at *1 (Tenn. Crim. App. at Knoxville), perm. to appeal
denied, (Tenn. 1998); Orren v. Carlton, No. 03C01-9704-CR-00141, 1998 WL
57551, at **2-3 (Tenn. Crim. App. at Knoxville), perm. to appeal denied, (Tenn.
1998); O’Quinn v. Carlton, No. 03C01-9703-CR-00084, 1998 WL 47947, at *2
(Tenn. Crim. App. at Knoxville), perm. to appeal denied, (Tenn. 1998); Tomlinson v.
5
Carlton, No. 03C01-9610-CR-00389, 1997 WL 604573, at **2-3 (Tenn. Crim. App. at
Knoxville, October 2, 1997), perm. to appeal denied, concurring in results only,
(Tenn. 1998).
However, in Dykes v. Compton, 978 S.W.2d 528 (Tenn. 1998), the
supreme court reviewed the sufficiency of an indictment for aggravated rape
pursuant to the Sexual Offenses Law of 1979. Noting that the 1979 statute for
aggravated rape neither required nor plainly dispensed with a culpable mental state,
the court ruled that the Hill standard applies to cases under the 1979 Act as well as
the 1989 Act. Id. at 530. See also, e.g., Harris v. Raney, No. 02C01-9808-CC-
00240, 1999 WL 134732, at *1 (Tenn. Crim. App. at Jackson, March 12, 1999).
Thus, the Dykes opinion effectively overruled the cases mentioned above to the
extent that this court declined to apply Hill to pre-1989 offenses.
Accordingly, we must apply the Hill standard to the indictment in this
case. Count one of the indictment alleged aggravated rape. At the time of the
offense, aggravated rape was defined, in part, as
unlawful sexual penetration of another accompanied by
any of the following circumstances:... [f]orce or coercion
is used to accomplish the act and the defendant is armed
with a weapon...
Tenn. Code. Ann. § 39-2-603(1982). The petitioner’s indictment contained the following
language:
that Tim Denton... on ...August, 1989, ...did unlawfully,
and feloniously accomplish unlawful sexual penetration
of Dorothy E. Essary by the use of force or coercion and
at a time when the defendants were armed with a ...
pistol, and by such violated the provisions of T.C.A. 39-2-
603.
6
The aggravated rape statute neither expressly required nor dispensed
with a mental state or mens rea. Nevertheless, rape was a general intent crime.
Dykes, 978 S.W.2d at 530. n. 2. The indictment failed to allege the requirement of a
general intent. Yet, in Dykes, the court concluded that an indictment which alleged
“unlawful sexual penetration” of a child less than thirteen years of age and which
included specific reference to the applicable statute provided ample notice to the
accused, an adequate basis for entry of judgment, and protection from re-
prosecution for the same crime. 978 S.W.2d at 530. In Ruff v. State, 978 S.W.2d
95, 97-98 (Tenn. 1998), our supreme court held that specific reference to the
applicable statute provided the defendant with adequate notice of the offense
charged. Accordingly, we conclude that the language of the aggravated rape
indictment, including the reference to the applicable statute, satisfied the first prong
of the Hill analysis.
Moreover, the indictment is concise and understandable, and the
requisite mental state can be inferred from the conduct alleged. The court in Dykes
noted that a general intent was easily inferable from the conduct which comprised
the offense of aggravated rape. 978 S.W.2d at 530 n. 2. Moreover, in this case, it
is difficult to imagine a circumstance in which a defendant could sexually penetrate a
victim by the use of force or coercion while armed with a deadly weapon absent an
intent to commit the crime. Ruff, 978 S.W.2d at 100 (the culpable mental state was
more easily inferable because of the references to force and the use of a deadly
weapon).
Count three of the petitioner’s indictment charged the offense of armed
7
robbery. At the time of the offense, armed robbery was defined as Athe felonious
and forcible taking from the person of another, goods or money of any value, by
violence or putting the person in fear.” Tenn. Code. Ann. § 39-2-501 (1982). The
petitioner’s indictment read:
That Tim Denton...on...August, 1989,...did unlawfully,
feloniously, and forcibly take from the person of Dorothy
E. Essary, by violence or putting that person in fear, the
following goods or money approximately $30.00..., and
certain papers and documents...Said robbery was
accomplished by the use of...a pistol...
The robbery statute neither expressly required nor plainly dispensed
with a culpable mental state. Rather, case law provided that robbery was a specific
intent crime and required proof of “the specific intent...[to] depriv[e] the owner of the
property taken.” Harrell v. State, 593 S.W.2d 664, 671 (Tenn. Crim. App. 1979).
The petitioner’s indictment failed to set forth this specific intent. Moreover, the
indictment failed to cite the statute setting forth the offense of robbery.
Nevertheless, although the supreme court has noted statutory citations
with approval in determining that indictments provided adequate notice, we do not
believe that citation to the statute is the sine qua non of a sufficient indictment. As
the supreme court observed in Hill, 954 S.W.2d at 728 (citation omitted),
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.’
We conclude that the language of the indictment charging armed robbery, which
precisely tracked the language of the statute, provided adequate notice to the
8
petitioner of the offense charged, a basis for the entry of a judgment, and protection
from double jeopardy.
Furthermore, the language of the indictment was concise and
understandable, and the requisite, specific intent could be logically inferred from the
allegations contained in the charge. Similar to the aggravated rape indictment, the
armed robbery indictment alleged that the petitioner forcibly took property from the
victim by violence or placing the victim in fear and while the petitioner was armed
with a pistol. Admittedly, the offense of aggravated rape only required a general
intent, while armed robbery required a specific intent to deprive the owner of the
property taken. Nevertheless, we believe that nothing less than this specific intent
could be inferred from the conduct alleged.
We note that, in Ruff, 978 S.W.2d at 100, the supreme court approved
an indictment charging the defendant with aiding and abetting an aggravated rape,
the offense occurring after the effective date of the 1989 criminal code. While the
indictment cited the aggravated rape statute, the indictment did not cite the criminal
responsibility statute, which requires that a defendant act Awith intent to promote or
assist the commission of the offense, or to benefit in the proceeds or results of the
offense ....” Tenn. Code Ann. § 39-11-402 (1997)(emphasis added).
The supreme court in Ruff concluded its discussion by stating that,
Awhere the constitutional and statutory requirements outlined in Hill are met, an
indictment which cites the pertinent statute and uses its language will be sufficient to
support a conviction.” Id. at 100. However, we fail to comprehend how citation to
9
the aggravated rape statute in that case rendered the specific intent required by the
criminal responsibility statute more easily inferable. Once again, we decline to hold
that citation to the relevant statute is a prerequisite to sufficiency of the indictment.
The language of the indictment in this case was adequate under the Hill standard.
Count five of the petitioner’s indictment charged the offense of
aggravated kidnapping. At the time of the petitioner’s offense, an aggravated
kidnapping occurred when a
person...unlawfully seizes, confines, inveigles, entices,
decoys, abducts, conceals, kidnaps or carries away
another with the felonious intent to:...[d]etain the other
against his will;...when...[the] defendant is armed with a
deadly weapon.
Tenn. Code. Ann. § 39-2-301 (1982). The petitioner’s indictment contained the
following language:
that Tim Denton...on...August, 1989,...did unlawfully, and
feloniously seize, confine, inveigle, entice, decoy, abduct,
conceal, kidnap or carry away Dorothy E. Essary, with
the felonious intent to detain the said Dorothy E. Essary
against her will, and while the said Dorothy E. Essary
was secretly confined or unlawfully detained, said secret
confinement or unlawful detention was accomplished
while the defendants were armed with a...pistol.
In this instance, the statute contained the requisite mens rea, i.e., a defendant must
act with the felonious intent to detain another against her will. The indictment also
set forth this required intent. Accordingly, the petitioner’s May 20, 1999 argument is
without merit.
Because the petitioner cannot prevail on either procedural or
substantive grounds, we affirm the judgment of the trial court.
10
_________________________
Norma McGee Ogle, Judge
CONCUR:
_________________________
James Curwood Witt, Jr., Judge
_________________________
John K. Byers, Senior Judge
11