Hibbard v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1997 SESSION
December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
GENE HIBBARD,
) C.C.A. No. 03C01-9702-CR-00077
Appellant, )
) Knox County
V. )
) Honorable Ray L. Jenkins, Judge
)
HOWARD CARLTON, WARDEN, )
& STATE OF TENNESSEE, )
) (Habeas Corpus-Rape)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Gene Hibbard, Pro Se John Knox Walkup
N.E.C.C. Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683-5000 Marvin E. Clements
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Gene Hibbard, was convicted by a jury of two counts of
aggravated rape. He was sentenced to thirty years incarceration in the
Tennessee Department of Correction. He, thereafter, filed a petition for habeas
corpus relief. In his petition he alleged that his convictions were void because
the indictments against him were insufficient for failing to cite the applicable code
section and failing to allege a mens rea. 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 convictions were not void on their 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 first indictm ent against the appe llant stated that he “unlaw fully, and feloniously did
sexually penetra te [the victim] to wit: Ge ne Hibbard did p enetrate the vagin a of the said [victim ] with
his penis, the said [v ictim] being a fem ale less than thirteen (1 3) years of age, co ntrary to the Statute
and against the peace and dignity of the State.” The second indictment stated that the appellant
“unlawfully and feloniously did sexually penetrate [the victim], to wit: cunnilingus, the said [victim]
being a female less than thirteen (13) years of age, contrary to the Statute and against the peace and
dignity of the State.”
. . . .”
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(3) the mental state can be logically
inferred from the conduct alleged.
Id. at 3.
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 convictions are
void and are 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
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CONCUR:
______________________________
JOSEPH B. JONES, Presiding Judge
______________________________
J. CURWOOD WITT, Judge
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