IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
NOVEMBER 1997 SESSION FILED
January 23, 1998
Cecil Crowson, Jr.
PERRY C. RILEY, ) Appellate C ourt Clerk
)
Appellant, ) C.C.A. No. 03C01-9705-CR-00181
)
vs. ) MORGAN COUNTY
)
CHARLES JONES, Warden, )
and STATE OF TENNESSEE, ) HON. E. EUGENE EBLEN, JUDGE
)
Appellees. ) (Habeas Corpus)
)
FOR THE APPELLANT: FOR THE APPELLEE:
KENNETH F. IRVINE, JR. JOHN KNOX WALKUP
606 W. Main Street, Suite 350 Attorney General & Reporter
P.O. Box 84
Knoxville, TN 37901-0084 MICHAEL J. FAHEY, II
Assistant Attorney General
425 5th Avenue North, 2nd Floor
Cordell Hull Building
Nashville, TN 37243
CHARLES E. HAWK
District Attorney General
FRANK HARVEY
Assistant District Attorney
P.O. Box 703
Kingston, TN 37763-0703
OPINION FILED: _____________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
The petitioner, Perry Riley, appeals the dismissal of his habeas corpus
petition. He stands convicted of one count of aggravated rape and one count of
aggravated sexual battery. In his habeas corpus petition, the petitioner assails the
indictment on the ground that the applicable mens rea elements were not stated,
such that the indictment is defective upon the authority of State v. Roger Dale Hill,
No. 01C01-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20, 1996). We
affirm the dismissal of the petition for habeas corpus relief.
Roger Dale Hill was reversed by our supreme court. State v. Hill, ---
S.W.2d ---, No. O1-S-01-9709-CC-00005 (Tenn. Nov. 3, 1997). In Hill, the
defendant was indicted for aggravated rape upon language virtually identical to
count one in the present case. Our supreme court noted in Hill that the statute
proscribing the offense of aggravated rape “does not require a culpable mental
state, neither does it plainly state that no such mental state is required.” Hill, ---
S.W.2d at ---, slip op. at 2. Recognizing that the Sentencing Reform Act of 1989
provides that a culpable mental state is required to establish an offense unless the
proscribing statute “plainly dispenses with a mental element,” Tenn. Code Ann. §
39-11-301(b)(1991), the court reasoned that the offense of aggravated rape is
committed if the accused acted with either intent, knowledge, or recklessness. Hill,
--- S.W.2d. at ---, slip op. at 2; see Tenn. Code Ann. § 39-11-301(c) (1991). In this
situation, the court held, an indictment which does not state a mental state is still
sufficient if (1) the language meets the constitutional requirements of notice of the
charge, provides an adequate basis for entry of a proper judgment, and protects
against double jeopardy; (2) the form of the indictment satisfies Code section 40-13-
102; and (3) the mental state can be “logically inferred from the conduct alleged.”
Hill, --- S.W.2d at ---, slip op. at 3.
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In the present case, the petitioner correctly maintains that count one,
at least, of the indictment is indistinguishable from Hill. The mens rea may be
“inferred from the nature of the criminal conduct alleged,” and the other requisites
for sufficiency of the indictment as enumerated in Hill are present. Hill, --- S.W.2d
at ---, slip op. at 9. As to count one, the petitioner’s claim is meritless.
Count two is perhaps deserving of a different analysis. It alleges
aggravated sexual battery under Tennessee Code Annotated section 39-13-
504(a)(4). Although this code section does not explicitly state a required mental
state, it defines aggravated sexual battery as the “unlawful sexual contact” with a
victim committed under certain circumstances (the circumstances applicable in the
present case being that the victim is less than thirteen years of age). Tenn. Code
Ann. § 39-13-504(a) (Supp. 1997). “Sexual contact” is defined to include the
“intentional touching” of the victim. Tenn. Code Ann. § 39-13-501(6)(1991).
Perhaps Hill may be read fairly to apply in this situation, in which case Hill validates
count two as well as count one. See State v. John Claude Wells, III, No. 01C01-
9505-CR-00146, slip op. at 8 (Tenn. Crim. App., Nashville, June 6, 1997) (observing
that Code section 39-13-504 “does not contain a culpable mental state”), pet. for
perm. app. filed (Tenn. Aug. 1, 1997). Regardless, count two is valid under another
theory that this court has utilized in reviewing indictments brought under section 39-
13-504. When the indictment charging an offense of aggravated sexual battery
alleges that the defendant committed an “unlawful sexual contact,” as the indictment
alleges in the present case, “the use of the terms ‘sexual contact’ in the indictment
is the same as if the definition is set forth in full.” John Claude Wells, III, slip op. at
8; see also State v. John James, No. 01C01-9601-CR-00016, slip op. at 19 (Tenn.
Crim. App., Nashville, March 27, 1997). Under this rationale, count two is validly
presented.
For the foregoing reasons, we affirm the trial court’s dismissal of the
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habeas corpus petition.
_______________________
CURWOOD WITT, JUDGE
CONCUR:
___________________________
JOE B. JONES, PRESIDING JUDGE
___________________________
PAUL G. SUMMERS, JUDGE
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