The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1997 SESSION December 10, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
WENDALL S. RUSSELL,
) C.C.A. No. 03C01-9701-CR-00006
Appellant, )
) Johnson County
V. )
) Honorable Lynn W . Brown, Judge
)
HOWARD CARLTON, WARDEN, )
& STATE OF TENNESSEE, )
) (Habeas Corpus-Rape)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Mark H. Toohey John Knox Walkup
Attorney at Law Attorney General & Reporter
158 Cherokee Street
Kingsport, TN 37660 Michael J. Fahey, II
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Wendall S. Russell, was convicted by a jury of rape. He
was sentenced to fifteen years incarceration in the Tennessee Department of
Correction. He, thereafter, filed a petition for habeas corpus relief. In his petition
he alleged that the indictment against him was insufficient for failing to allege a
mens rea. He contends his conviction is void. The trial court dismissed the
petition finding that it was not proper for habeas corpus review. The trial court
based this finding on the fact that the appellant’s conviction was not void on its
face and that his sentence had not expired. He appeals this dismissal. Upon
review, we affirm.
The appellant contends that the indictment against him did not sufficiently
allege the mens rea for aggravated rape.1 The appellant bases his theory on
State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, filed
June 20, 1996). The Tennessee Supreme Court has recently reversed Hill
holding that the indictment was constitutionally and statutorily valid. State v. Hill,
No. 01-S-01-9701-CC-00005 (Tenn. Nov. 3, 1997). The Court held the following:
[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; and
1
The indictment against the appellant stated that he “did unlawfully and feloniously, and
against his will, have sexual penetration of [the victim] with said act being accomplished by force or
coercion and the defendant being armed with a deadly weapon or an article used or fashioned in a
manner to lead the victim reasonably to believe it to be a weapon, all contrary to T.C.A. § 39-2-603
. . . .”
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(3) the mental state can be logically
inferred from the conduct alleged.
Id. at 3.
In this case sub judice, we find that the appellant’s indictment sufficiently
alleged the elements of aggravated rape and was constitutionally and properly
drafted. The facts as alleged in the indictment make the mental state required
for conviction logically obvious. The appellant was fully apprised of the charges
against him in ordinary and concise language. His indictment gave the
convicting court an adequate basis for subject matter jurisdiction. Therefore, the
appellant’s conviction is not void and is improper for habeas corpus review.
Accordingly, we find no error of law mandating reversal. The judgment of
the trial court is affirmed.
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
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______________________________
JOSEPH B. JONES, Presiding Judge
______________________________
J. CURWOOD WITT, Judge
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