The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
March 25, 1998
JANUARY 1998 SESSION
Cecil Crowson, Jr.
Appe llate Court C lerk
NELSON B. GRAVES, )
)
Appellant, ) C.C.A. No. 03C01-9705-CR-00171
)
vs. ) Johnson County
)
HOWARD CARLTON, WARDEN, ) Hon. Lynn W. Brown, Judge
AND STATE OF TENNESSEE, )
) (Habeas Corpus)
Appellees. )
FOR THE APPELLANT: FOR THE APPELLEE:
NELSON B. GRAVES JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
N.E.C.C.
P.O. Box 5000 SANDY COPOUS PATRICK
Mountain City, TN 37683 Assistant Attorney General
2d Floor Cordell Hull Bldg.
425 Fifth Ave. North
Nashville, TN 37243-0943
DAVID E. CROCKETT
District Attorney General
Rt. 19, Box 99
Johnson City, TN 37601
OPINION FILED:__________________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
The petitioner, Nelson B. Graves, appeals the Johnson County Criminal Court's
summary denial of his petition for the writ of habeas corpus. According to his petition, Graves is
presentlyserving an effective 55 year incarcerativesentence following his convictions of threecounts
of aggravated rape and one count of aggravated kidnapping. See also State v. Nelson B. Graves, No.
744, slip op. at 1 (Tenn. Crim. App., Knoxville, Dec. 10, 1981), perm. app. denied (Tenn. 1982). It
appearsthat hecommittedhis crim in 1980.1 Graves alleges the court belowerroneously failed to
es
issue the writ of habeas corpus, to which he claim entitlement because (1) the district attorney
s
general's signature is lacking from som of the charging instruments, and (2) the indictments against
e
him fail to allege a culpable mens rea. Having reviewed the records and the arguments of the
petitioner and the state, w affirm the trial court's dism
e issal of Graves's petition.
We begin our analysis with recitation of Rule 12(b)(2), Tennessee Rules of Criminal
Procedure.
Any defense, objection, or request which is capableof determinationwithout the trial
of the general issue may be raised before trial by motion. M otions may be written or
oral at the discretion of the trial judge. The following must be raised prior to trial.
...
Defenses and objections based on defects in the indictment, presentment or
information (other than that it fails to show jurisdiction in the court or to charge an
offense which objections shall be noticed by the court at any tim during the
e
pendency of the proceedings)[.]
Tenn. R. Crim P. 12(b)(2). Objections not made in accordance with the time fram of rule 12(b)(2)
. e
are waived. Tenn. R. Crim P. 12(f).
.
Theabsenceof theattorney general's signatureon an indictment is neithernecessary
for a showing of jurisdiction nor for the charging of anoffense. Thus, under R 12(b)(2), anobjection
ule
to a defect of this nature must be made pre-trial, and not in a collateral, post-trial habeas corpus
1
The indictments included in the record consist of one charge of criminal
conduct in 1977 and five charges of criminal conduct in 1980. Matching the
indictments with the judgment forms attached to the pleadings Graves filed in the
court below, we infer that his complaint relates to four of the indictments for the
1980 crimes.
petition. John C. Tomlinson v. Howard Carlton, No. 03C01-9610-CR-00389, slip op. at 5 (Tenn. Crim.
App., Knoxville, Oct. 2, 1997), pet. for perm app. filed (Tenn., Oct. 31, 1997); see also State v.
Anthony Nixon, No. 02C01-9612-CC-00484, slip op. at 4 (Tenn. Crim. App., Jackson, Dec. 3, 1997)
(defects "that go to matters of formrather than substance" must beraised pre-trial or they are waived
pursuant to Rule 12), pet. for perm. app. filed (Tenn., Jan. 20, 1998). In his brief, Graves concedes
no such objection was made "during the course of his trial." The issue was waived when it w not
as
raised pre-trial, and it is not properly before us now.
Graves also claim entitlement to the writ of habeas corpus based upon alleged
s
deficiencies in the indictments in failing to allege a culpable mental state. He bases his argum on
ent
the provisions of Code sections 39-11-301 and 39-11-302. Those provisions require a culpable
mental state for the commission of a crim offense and define the four culpable mental states
inal
applicable to violations of the 1989 Criminal Code. H supports his argum by citation to State v.
e ent
Roger Dale Hill, Sr., No. 01C01-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20, 1996), rev'd,
954 S.W.2d 725 (Tenn. 1997), and State v. Nathaniel W No. 03C01-9408-CR-00277 (Tenn. Crim.
hite,
App., Knoxville, June 7, 1995).
The fallacy in Graves's argument is that, unlike the defendants in Hill and White, his
crimes were committed in 1980, long before the enactment of the 1989 Criminal Code. The
touchstone of the now-reversed Hill decision and White is section 39-11-301. See Roger Dale Hill,
slip op. at 5 (court of criminal appeals
3
opinion); Nathaniel White, slipop. at 4. Thecrim law at the time of Graves's crimesdidnot contain
inal
an analogous provision. See, e.g., Carl E. Saine v. Alton Hesson, No. 02C01-9710-CC-00399 (Tenn.
Crim. App., Jackson, Dec. 15, 1997) (Rule 20 Order), pet. for perm. app. filed (Tenn., Dec. 29, 1997);
Harvey Qualls v. Billy Compton, No. 02C01-9610-CC-0331, slip op. at 4, n.2 (Tenn. Crim. App.,
Jackson, Oct. 17, 1997), pet. for perm. app. filed (Tenn., Dec. 16, 1997).
Notwithstanding Graves's reliance on reversed and inapposite authority, w find the
e
indictments against himsufficient under the applicable law. The aggravated rape indictments allege
in pertinent part,
That NelsonB. G raves heretoforeonthe1st day of April, 1980. . . didunlawfullyand
feloniously engage in sexual penetration, to wit: [method of sexual penetration]2, with
[the victim], a person thirteen (13) years of age, by using force and coercion to
accomplish said act, and did cause personal injury to [the victim], against the peace
and dignity of the State.
At the time of the crimes, aggravated rape was defined in pertinent part as "unlawful sexual
penetration of another accompanied by any of the following circumstances: . . . The actor uses force
or coercion to accomplish the act, and . . . [t]he actor causes personal injury to the victim. . . ." Tenn.
Code Ann. § 39-3703 (Supp. 1979).
The aggravated kidnapping indictment alleges in pertinent part,
That NelsonB. G raves heretoforeonthe1st day of April, 1980 . . . did unlawfully and
feloniously seize, confine, inveisle [sic], entice, decoy, abduct, conceal kidnap or
carry away [the victim], and while being so held the said [victim] was the victim of a
felony, to wit: Aggravated Rape, against the peace and dignity of the State.
On the relevant date, aggravated kidnapping was criminalized in pertinent part as
2
The three aggravated rape indictments upon which Graves was
convicted alleged fellatio, cunnilingus, and sexual intercourse, each allegation
being contained in a separate indictment.
4
follows:
Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals,
kidnaps or carries away any individual shall be deemed guilty of aggravated
kidnapping when one or more of the following circumstances are present . . . The
victimsuffers seriousbodilyharmor is thevictimof anyfelonycommittedwhilebeing
held . . . .
Tenn. Code Ann. § 39-2603 (Supp. 1980).
A portion of the former Criminal Code relevant to Graves provided that indictments
must
state the facts constituting the offense in ordinary and concise language, without
prolixity or repetition, in such a manner as to enable a person of comm on
understanding to know what is intended, and with that degree of certainty which will
enable the court, on conviction, to pronounce the proper judgm . . . .
ent
Tenn. Code Ann. § 40-1802 (1975) (currently codified at Tenn. Code Ann. § 40-12-202).3 The
indictments in the case at bar closely followthe statutory formof the crimes. Their form is consistent
with the mandate of section 40-1802. Cf., e.g., Carl E. Saine; William Edward Whitt v. State, No.
02C01-9704-CC-00140 (Tenn. Crim. App., Jackson, July 1, 1997) (Rule 20 Order). Thus, we find
them sufficient under the law as it existed at the time.
Graves's final issue alleges constitutional deprivationby thecourt belowin "refusing
to entertaina properly drafted petition with valid issues for review." Because we have foundGraves's
substantive issues are not valid bases for granting habeas corpus relief, this argument collapses of
its own weight.
The trial court's dismissal of the meritless petition is affirmed.
3
The Criminal Code also provided that an indictment of a crime
chargeable at common law could "be charged or described substantially at
common law." Tenn. Code Ann. § 40-1805 (1975) (now § 40-13-205).
5
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_____________________________
GARY R. WADE, JUDGE
_____________________________
JOSEPH M. TIPTON, JUDGE
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