C.C.A. No. 01C01-9710-CR-00486.Court of Criminal Appeals of Tennessee. at Nashville.
August 17, 1998
Appeal from Davidson County, Honorable Thomas H. Shriver, Judge, (Writ of Habeas Corpus Denied)
AFFIRMED.
FOR THE APPELLANT: Dwight Scott, Attorney at Law
FOR THE APPELLEE: John Knox Walkup, Attorney General Reporter, Deborah Tullis, Assistant Attorney General, Victor S. (Torry) Johnson III, District Attorney General, Kymberly Haas, Assistant District Attorney General.
OPINION
PAUL G. SUMMERS, JUDGE.
The Grundy County Grand Jury charged the appellant, Robert Bennett, with one count of aggravated rape. In March 1987, the appellant was convicted by a jury of the lesser included offense of aggravated sexual battery. He was sentenced to twenty years in the Department of Correction. This Court affirmed the appellant’s conviction. State v. Bennett, No. 88-16-III (Tenn.Crim.App. filed at Nashville, Aug. 9, 1988). The victim was the appellant’s very young daughter.
In 1997, the appellant filed a petition for habeas corpus relief in the Davidson County Criminal Court. He alleged that his conviction for aggravated sexual battery was void. After a hearing, the court dismissed the petition and this appeal followed. The appellant alleges the following bases for habeas corpus relief: (1) the court lacked jurisdiction because the indictment failed to include the requisite mens rea for aggravated sexual battery, (2) a fatal variance exists between the indictment and the proof at trial, and (3) the jury charge was constitutionally defective. The judgment of the trial court is affirmed.
Habeas corpus relief is available only when a conviction is void because the convicting court was without jurisdiction or authority to sentence a defendant, or when a defendant’s sentence has expired and the petitioner is being illegally restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).
At the outset, we note the state’s observation that the appellant failed to include a copy of his judgment of conviction in the record. Tenn. Code Ann. § 29-21-107(b)(2) (1990) provides that if the petitioner’s restraint is by virtue of any legal process, then the petitioner shall annex a copy (usually of the conviction) to the petition for habeas corpus, or give a satisfactory reason why the copy could not be annexed. This statutory requirement is mandatory and may be grounds for dismissal. State v. Heer, 413 S.W.2d 688 (Tenn. 1967); State v. Wood, 393 S.W.2d 135 (Tenn. 1965). This omission alone is reason to affirm the trial court. However, we will address the issues since both parties have presented their positions well.
The appellant claims that the indictment fails to charge a crime because it does not allege the mental state required for the offense charged. We are fortunate to have a recent opinion by Judge David G. Hayes that addresses the point of law raised by the appellant. In Orren v. Carlton, 03C01-9404-CR-00141 (Tenn.Crim.App. filed at Knoxville, Feb. 13, 1998), the Court stated that “if the indictment fails to include an essential element of the offense, no crime is charged and, therefore, no offense is before the court.” Id. (quoting State v. Nixon, No. 02C01-9612-CC-00484 (Tenn.Crim.App. filed at Jackson, Dec. 3, 1997). “[W]hen the mental state is an essential element of the offense and the requisite mental state cannot be fairly imported from the language of the charging instrument, the trial court is divested of the jurisdiction necessary to proceed with the criminal prosecution.” Id.
The indictment alleged that, in January 1986, the appellant unlawfully, feloniously, and willfully committed aggravated rape upon a child under the age of thirteen years of age. The trial court held that the indictment sufficiently alleged the culpable mental state required for aggravated rape as it existed under the law in 1986. We agree. Under the pre-1989 Criminal Code, aggravated rape contained no defined mental state. Aggravated rape was defined as the “unlawful sexual penetration” of another. Tenn. Code Ann. § 39-2-603 (1982). Aggravated sexual battery was defined as “unlawful sexual contact.” Tenn. Code Ann. § 39-2-606 (1982). In Orren, the Court said that “in those statutory crimes, originating from the common law, which do not expressly include scienter in their definition, the mens rea to be applied is that mens rea required for the offense under the common law.” Orren v. Carlton, 03C01-9404-CR-00141 (Tenn.Crim.App. filed at Knoxville, Feb. 13, 1998). The Court went on to say:
The offense of aggravated rape is a crime which has its origins in the common law. See State v. Wilkins, 655 S.W.2d 914, 916 (Tenn. 1983) (citations omitted). At common law, rape was a general intent crime. See 75 C.J.S. Rape § 9 (1952). Accordingly, no intent is required other than that evidenced by the doing of the acts constituting the offense. Id.; see also Wilkins, 655 S.W.2d at 916; Walden v. State, 178 Tenn. 71, 156 S.W.2d 385, 387 (Tenn. 1941). Thus, for the indictment to be sufficient in the present case it need only charge that the accused unlawfully sexually penetrated a victim under the age of thirteen. Again, the necessary mens rea is the intent to commit the unlawful act. Based upon the foregoing, we conclude that the language of the challenged indictment sufficiently informed the accused of the charge against him.
Id.
The appellant also argues that a fatal variance exists between the indictment and the proof at trial, rendering the judgment void. In our opinion, the appellant is essentially arguing that the evidence is insufficient to support his conviction. He argues that there is no evidence of sexual penetration or touching of intimate parts. On direct appeal, this Court specifically found that the evidence of the appellant’s guilt “more than satisfies the standard prescribed in Jackson v. Virginia, 443 U.S. 307 (1979).” State v. Bennett, C.C.A. No. 88-16-III (Tenn.Crim.App. filed at Nashville, Aug. 9, 1988). Furthermore, this issue is not a cognizable issue in a habeas corpus petition. See Archer v. State, 851 S.W.2d 157 (Tenn. 1993).
Finally, the appellant argues that the jury charge addressing reasonable doubt was constitutionally defective because it required a lower burden of proof than what is constitutionally required for a guilty verdict. In charging the jury on the definition of reasonable doubt, the trial court stated: “Absolute certainty of guilt is no [sic] demanded by the law to convict [sic] of any criminal charge, but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense.” (emphasis added).
Generally, erroneous jury instructions will not entitle a petitioner to habeas corpus relief. McCaslin v. State, No. 01C01-9611-CC-00480 (Tenn.Crim.App. filed at Nashville, Feb. 5, 1998). Moreover, the appellant’s challenge to the instructions in this case have been repeatedly rejected by our courts. See Bacon v. State, 967 S.W.2d 345, 346 (Tenn.Crim.App. 1998); State v. Sexton, 917 S.W.2d 263, 265-66 (Tenn.Crim.App. 1995). The appellant cites Rickman v. Dutton, 864 F. Supp. 686, 707 (M.D. Tenn. 1994), but this Court is only bound by the constitutional dictates of the United States Supreme Court and the Tennessee Supreme Court.
The appellant has failed to present a cognizable claim for habeas corpus relief. The judgment of the trial court is
PAUL G. SUMMERS, JUDGE.
CONCUR: DAVID G. HAYES, JUDGE AND JERRY L. SMITH, JUDGE.