Thomas v. Case v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
AUGUST 1997 SESSION
FILED
August 22, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
THOM AS V. CASE ) C.C.A. NO. 01C01-9610-CC-00444
)
Appellant ) DICKSON COUNTY
)
VS. ) Hon. Robert E. Burch, Judge
)
STATE OF TENNESSEE )
) (Post-Conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
THOM AS V. CASE, PRO SE JOHN KNOX WALK UP
South Central Corrections Center Attorney General and Reporter
P.O. Box 279
Clifton, Tennessee 38425-0279 LISA A. NAYLOR
Assistant Attorney General
450 James Robertson Parkway
Nashville, Tennessee 37243-0493
DAN ALSOBROOKS
District Attorney General
P.O. Box 580
Charlotte, Tennessee 37036
OPINION FILED:____________________
AFFIRMED
JOE H. WALKER, III
Sp. JUDGE
OPINION
Petitioner, Thomas V. Case, appeals the order of the Circuit Court of Dickson County
summarily dismissing his petition for post-conviction relief.
Petitioner was convicted for aggravated sexual battery (T.C.A. 39-13-504)1 on September
1, 1993, after entering a plea of nolo contendere, and is serving a ten year sentence.
Petitioner entered the plea reserving the right to appeal a certified question of law. On
April 28, 1994, the Court of Criminal Appeals of Tennessee, affirmed the conviction. State
v.Case, 884 S.W.2d 146 (Ct. Crim. App. 1994).
The petition for post-conviction relief was filed August 15, 1996.
On September 30, 1996, the court entered an order denying post-conviction relief.
The petitioner contends that the indictment must be dismissed under the recent opinion of
State v. Roger Dale Hill, because the indictment fails to include a specific mens rea, and merely
states the defendant acted “unlawfully”.
The indictment in this case charged in relevant part that the petitioner on or about the 8th
day of January, 1993, in the county of Dickson, unlawfully, willfully, and feloniously did have
unlawful sexual contact with another, a named minor, and that the victim was less than thirteen
years of age.
I.
Petitioner contends the indictment charging aggravated sexual battery was fatally defective
in that it did not contain the requisite mens rea element of the offense. Petitioner relies upon State
v. Hill, 1996 Tenn. Crim. App. LEXIS 369, C. C. A. No. 01C01-9508-CC-00267 (Tenn. Crim.
App. filed June 20, 1996, at Nashville). The petitioner did not raise this issue in the trial court.
1
The indictment in this case alleges violation of T.C.A. 39-14-504, which is not the proper
code section. The proper cite is T.C.A. 39-13-504. The reference to a code section is deemed to
be surplusage; and the insertion of a wrong code section does not render the indictment invalid.
Cole v. State, 512 S.W.2d 598, 601-602 (Tenn. Crim. App. 1974); McCracken v. State, 489
S.W.2d 48, 51 (Tenn. Crim. App. 1972). See State v. Beal, 614 S.W.2d 77, 80 (Tenn. Crim. App.
1981).
The defendant in Hill was charged with the offense of aggravated rape. The court
concluded that the failure of the indictment to specifically allege the mens rea was fatally
defective. T. C. A. § 40-13-202 provides as follows:
The indictment 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 common
understanding to know what is intended, and with that degree of certainty which will enable the
court, on conviction, to pronounce the proper judgment; and in no case are such words as "force
and arms" or "contrary to the form of the statute" necessary.
Fair and reasonable notice of the charges against a defendant is a fundamental
constitutional requirement. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. An indictment has
three (3) purposes in Tennessee; namely, (1) to inform the defendant of the precise charges; (2) to
enable the trial court upon conviction to enter an appropriate judgment and sentence; and (3) to
protect the defendant against double jeopardy. State v. Trusty, 919 S.W.2d 305, 309 (Tenn. 1996).
The facts must be stated in ordinary and concise language so that a person of "common
understanding" will know what is intended. Warden v. State, 214 Tenn. 391, 381 S.W.2d 244
(1964).
The indictment in this case alleged that the petitioner had unlawful sexual contact with a
named victim less than thirteen (13) years of age. The petitioner was informed by this indictment
of the precise charge. The charge was stated in ordinary and concise language so that a person of
common understanding would know what was intended. The charge clearly enabled the trial court
upon conviction to enter the appropriate judgment and sentence. Finally, the charges protected the
petitioner against any double jeopardy problems.
For the above reasons we decline to follow Hill and find this indictment was sufficient to
charge aggravated sexual battery. Furthermore, if there had been an objection to the indictment
based upon the failure to allege a requisite mental state, it should have been raised pre-trial. See
T.R.Cr.P. 12(b)(2).
II.
Even if Hill has vitality, it is distinguishable from the instant case. Unlike Hill, the
indictment charged that the defendant did have unlawful sexual contact with [MMN], a child less
than thirteen (13) years of age.
At the time of the defendant’s acts, T.C.A. 39-13-504 defined aggravated sexual
battery as unlawful sexual contact “accompanied by any of the circumstances listed in section 39-
13-502(a).” Petitioner appealed the certified question of law as to the validity of the aggravated
circumstance of the sexual battery of a child less than thirteen years of age. The Court of
Criminal Appeals, at Nashville, determined that the offense of aggravated sexual battery of a child
less than thirteen years of age was a crime in January, 1993, and remained punishable under
T.C.A. 39-13-504 as a Class B felony. State v. Case, 884 S.W.2d 146 (Ct. Crim. App. 1994).
T. C. A. § 39-13-501(6) defines "sexual contact" as the
...intentional touching of the victim's, the defendant's, or any other person's intimate parts,
or the intentional touching of the clothing covering the immediate area of the victim's, the
defendant's, or any other person's intimate parts, if that intentional touching can be
reasonably construed as being for the purpose of sexual arousal or gratification (emphasis
added).
Therefore, the mental element of "intentional" is included in the definition of "sexual
contact" and is impliedly included within the indictment. By statutory definition the only way one
can have "sexual contact" is by the "intentional" touching...for the purpose of sexual arousal or
gratification." Id.
The state has the burden of proving the requisite culpable mental state regardless of
whether the statute does or does not set forth the culpable mental state. State v. Griffis and
Rogers, 1997 Tenn. Crim. App. LEXIS 427, No. 01-C-01-9506-CC-00201 at Nashville, April 30,
1997.
In a prosecution for aggravated sexual battery, mere recklessness as to the age of the
victim was sufficient evidence to establish defendant’s guilt. State v. Parker, 887 S.W.2d 825
(Tenn.Crim.App. 1994).
We, therefore, conclude that Hill is distinguishable based upon the charged offense.
The Court finds that the indictment in this case was not defective, in that it alleged the offense,
the trial court had subject matter jurisdiction, and that the post-conviction court properly
dismissed the petition. The judgment of the trial court is AFFIRMED.
__________________________
JOE H. WALKER, III
Sp. JUDGE
CONCUR:
_______________________
JOE G. RILEY, JUDGE
______________________
J. CURWOOD WHITT, JR., JUDGE