IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MAY, 1997 SESSION FILED
July 25, 1997
STATE OF TENNESSEE, )
Cecil Crowson, Jr.
) Appellate C ourt Clerk
Appellee, ) No. 03C01-9610-CR-00386
)
vs. ) Hamblen County
)
GERALD EDWARD DIXON, ) Honorable James E. Beckner,
) Judge
)
Appellant. )
) (Habeas Corpus)
FOR THE APPELLANT: FOR THE APPELLEE:
JIM W. STAMBAUGH JOHN KNOX WALKUP
Post Office Box 1003 Attorney General & Reporter
Morristown, TN 37816-1003
MICHAEL J. FAHEY, II
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
Gerald Edward Dixon, Jr., the petitioner appeals pursuant to Rule
3, Tennessee Rules of Appellate Procedure, from the trial court’s dismissal of his
petition for writ of habeas corpus. On November 29, 1993, the petitioner
pleaded guilty to one count of aggravated burglary and one count of aggravated
rape. He received concurrent sentences of three and seventeen years. The
petitioner does not challenge the validity of his conviction for aggravated
burglary, but he contends that his conviction for aggravated rape is void because
the indictment failed to allege the mens rea for that offense. See State v. Roger
Dale Hill, No. 01CO1-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20,
1996), perm. to appeal granted (Tenn. 1997).
It is well established that challenges to the sufficiency of an
indictment cannot be tested in a habeas corpus proceeding. See Haggard v.
State, 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Terry D. Barber v. State,
No. 01CO1-9408-CR-00281 (Tenn. Crim. App., Nashville, Feb. 23, 1995).
Moreover, the actual indictment is not included in the record on appeal. 1
Nonetheless, we have considered the substance of the petitioner’s claim and
determine it to be without merit. Aggravated rape is defined as the
”unlawful sexual penetration of a victim by the
defendant or the defendant by a victim accompanied
by . . . [f]orce or coercion . . . and the defendant is
armed with a weapon. . . .”
Tenn. Code Ann. § 39-13-502(a)(1)(Supp.1996).
The indictment in this case stated that the accused
1
The habeas corpus petition and both briefs include the indictment’s
language.
2
. . . did unlawfully and forcibly or coercively, while
armed with a weapon, to-wit: a handgun sexually
penetrated T. A. H. by means of sexual intercourse,
all in violation of Tenn. Code Ann. § 39-13-502, a
Class A Felony.
We find that the indictment sufficiently apprised the petiioner of the offense
charged and is valid.
Tennessee law requires that an indictment “state the facts
constituting the offense in ordinary and concise language . . . in such a manner
as to enable a person of common understanding to know what is intended. . . .”
State v. Marshall, 870 S.W.2d 532, 537 (Tenn. Crim. App. 1993) (quoting Tenn.
Code Ann. § 40-13-202). An indictment is sufficient even though an element is
not specifically alleged if the language of the indictment is such that the
defendant cannot fail to be apprised of its elements. State v. John Haws Burrell,
No. 03C01-9404-CR-00157, slip op. at 27-28 (Tenn. Crim. App., Knoxville, Feb.
11, 1997), perm. app. filed April 12, 1997.
Sexual penetration by coercion necessarily implies the act occurred
intentionally or knowingly. Id. at 31. ‘“Coercion” means threat of kidnapping,
extortion, force or violence to be performed immediately or in the future . . . .”
Tenn. Code Ann. § 39-13-501(1)(1991). A person of common understanding
would recognize that if a person uses threats in order to sexually penetrate
another, the penetration must be intentional. State v. John Haws Burrell, slip op.
at 31.
We find no merit in the claim. The judgment is affirmed.
3
__________________________
CURWOOD WITT, Judge
CONCUR:
___________________________
JOE B. JONES, Presiding Judge
___________________________
JOSEPH M. TIPTON, Judge
4