IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
SEPTEMBER 1997 SESSION October 31, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
I. G. COURTNER, )
) C.C.A. NO. 03C01-9701-CR-00005
Appellant, )
) JOHNSON COUNTY
VS. )
) HON. LYNN W. BROWN,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Habeas corpus)
FOR THE APPELLANT: FOR THE APPELLEE:
ISAAC G. COURTNER, pro se JOHN KNOX WALKUP
TDOC no. 132603, Unit 10 Attorney General & Reporter
Northeast Correctional Center
P.O. Box 5000 MARVIN E. CLEMENTS, JR.
Mountain City, TN 37683-5000 Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
DAVID CROCKETT
District Attorney General
Rt. 19, Box 99
Johnson City, TN 37601
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The petitioner filed his “Motion to Dismiss and for Immediate Release” on
September 18, 1996, alleging that his 1990 conviction for aggravated rape must be set
aside pursuant to this Court’s opinion in State v. Roger Dale Hill, Sr., No. 01C01-9508-
CC-00267, Wayne County (Tenn. Crim. App. filed June 20, 1996, at Nashville).
Specifically, he claims that the indictment charging him with aggravated rape fails to
allege an essential element of the crime and his conviction must therefore be set aside.
The court below treated the petitioner’s motion as a petition for writ of habeas corpus and
denied it on the grounds that it failed to state a basis for relief. The petitioner appeals,
claiming that the court below erred in treating his petition as one for a writ of habeas
corpus and further contending that he is entitled to relief under Hill. We affirm the
judgment below.
The indictment against the petitioner provides that he “did unlawfully and
feloniously have sexual intercourse with [the victim], by the use of force and coercion,
and did cause bodily injury, in violation of ” T.C.A. § 39-2-603. In Hill, the indictment
alleged merely that the defendant had “unlawfully sexually penetrate[d] [the victim] a
person less than thirteen (13) years of age.” This Court found that the use of the word
“unlawfully” was not sufficient to allege the defendant’s mens rea, an essential element
of the offense. Accordingly, the indictment was found fatally defective.
The indictment in the petitioner’s case is significantly different. In addition
to alleging that the crime was committed “unlawfully,” the indictment provides that the
defendant committed the offense “feloniously” and “by the use of force and coercion.”
As pointed out by the State, Judge Tipton of this Court has previously considered
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allegations similar to those of the petitioner’s in which the defendant had been charged
with “unlawfully and feloniously sexually penetrat[ing] [the victim] by use of force or
coercion.” See Charles Gates v. State, No. 03C01-9510-CC-00313, Bradley County
(Tenn. Crim. App. Order filed Aug. 16, 1996, at Knoxville). In that case, Judge Tipton
ruled as follows:
Historically, the word