State v. Rondey Bond

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON OCTOBER 1997 SESSION

FILED December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk

RODNEY DEWAYNE BOND, )

) C.C.A. NO. 02C01-9610-CC-00346 Appellant, )

) LAKE COUNTY

VS. )

) HON. JOE G. RILEY, JR.,

BILLY COMPTON, Warden ) JUDGE

) Appellee. ) (Habeas corpus) FOR THE APPELLANT: FOR THE APPELLEE:

RODNEY D. BOND (pro se) JOHN KNOX WALKUP L.C.R.C.F. Attorney General & Reporter Rt. 1, Box 330 Tiptonville, TN 38079 ELIZABETH T. RYAN

Asst. Attorney General 450 James Robertson Pkwy.

Nashville, TN 37243-0493 C. PHILLIP BIVENS District Attorney General P.O. Box E Dyersburg, TN 38024

OPINION FILED:____________________ AFFIRMED JOHN H. PEAY, Judge

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.1 The petitioner's contention is therefore without merit.

The judgment below is affirmed.

___________________________________ JOHN H. PEAY, Judge

CONCUR: ______________________________ PAUL G. SUMMERS, Judge ______________________________ DAVID G. HAYES, Judge