Opinion
C.C.A. No. 02C01-9610-CC-00346.
December 23, 1997.
LAKE COUNTY, HON. JOE G. RILEY, JR., JUDGE (Habeas corpus).
For the Appellant:
RODNEY D. BOND (pro se) L.C.R.C.F.
For the Appellee:
JOHN KNOX WALKUP, Attorney General Reporter, ELIZABETH T. RYAN, Asst. Attorney General and C. PHILLIP BIVENS, District Attorney General.
AFFIRMED.
OPINION
The petitioner filed his petition for writ of habeas corpus on September 12, 1996, alleging that he is being illegally restrained by virtue of a nine year sentence imposed in 1991 for a rape conviction. He claims that his sentence is illegal because the underlying conviction is based upon an invalid indictment. Specifically, he claims that the indictment fails to allege the necessary mens rea element of the offense. The petitioner relies on this Court's opinion in State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-00267, Wayne County (Tenn.Crim.App. filed June 20, 1996, at Nashville). The court below summarily dismissed the petition. We affirm.
We first note that our Supreme Court has overruled this Court's decision in Hill. See State v. Hill, ___ S.W.2d ___ (Tenn. 1997). Moreover, the indictment against the petitioner alleges that he committed aggravated rape by "unlawfully and forcibly, while armed with a weapon, . . . sexually penetrat[ing] [the victim]." The use of the term "forcibly" is adequate to describe the mens rea element required for aggravated rape. The petitioner's contention is therefore without merit.
The mens rea requirement for aggravated rape is intentional, knowing or reckless. See State v. Hill, ___ S.W.2d ___, ___ (Tenn. 1997)
The judgment below is affirmed.
___________________________________ JOHN H. PEAY, Judge
CONCUR:
______________________________ PAUL G. SUMMERS, Judge
______________________________ DAVID G. HAYES, Judge