         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                           JUNE SESSION, 1999                 FILED
                                                           July 20, 1999
STATE OF TENNESSEE,          )    C.C.A. NO. 02C01-9809-CC-00265
                             )                           Cecil Crowson, Jr.
      Appellee,              )                         Appellate Court Clerk
                             )
                             )    GIBSON COUNTY
VS.                          )
                             )    HON. JULIAN P. GUINN
CHARLES WOODRUFF,            )    JUDGE
                             )
      Appe llant.            )    (Sale of Cocaine)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF GIBSON COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

C. MICHAEL ROBINS                 PAUL G. SUMMERS
46 North Third Street             Attorney General and Reporter
Suite 719
Memphis, TN 38103                 R. STEPHEN JOBE
  (ON APPEAL)                     Assistant Attorney General
                                  425 Fifth Avenu e North
TOM C. CRIDER                     Nashville, TN 37243
District Public Defender
107 S. Co urt Square              CLAYBURN L. PEEPLES
Trenton, TN 38382                 District Attorney General
  (AT TRIAL)
                                  BRIAN W. FULLER
                                  Assistant District Attorney General
                                  110 S. College Street, Suite 200
                                  Trenton, TN 38382




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION
       The Defen dant, Ch arles W oodruff, w as indicte d by the Gibs on Co unty

Grand Jury on September 15, 1997 on four charges, all arising from a single drug

transaction: possession of cocaine with intent to sell or deliver, delivery of

cocaine, sale of cocaine, and possession of cocaine. On May 22, 1998, the

Defendant was tried before a jury and found guilty of th e sale of cocaine. The

trial court sen tenced him as a Rang e III persisten t offender to ten years

incarceration, and as fixed by the jury, he was fined $2,000. Pursuant to Rule 3

of the Tennessee Rules of Appellate Procedure, the Defendant now appe als his

conviction, presenting only one issue for our review: whether his indictment was

void for failure to sufficiently allege a culpable mental state. We affirm the

judgm ent of the tria l court.



       The indictme nt at issue alleges th at “CHA RLE S W OO DRU FF did

unlaw fully sell a controlled substance, to wit: COCAINE, a schedule II controlled

substance, as classified in Section 39-17-408 of the Tennessee Code Annotated,

to Michael Jones, an undercover agent of the Milan Police Department, in

violation of T.C.A. 39-17-417.” The Defendant argues that the indictment does

not allege a culpable mental state as contem plated by Tenn essee laws, see

Tenn. Code Ann. § 39-11-301, and that it is therefore fatally deficient.           He

contends that because the indictment fails to allege a culp able m ental s tate, it is

fatally deficien t.



       Genera lly, the Sixth and Fourteenth Amendments to the United States

Constitution, as well as Article I, Section 9 of the Tennessee Con stitution

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“guarantee to the accuse d the right to be inform ed of the nature and cause of the

accusa tion.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). In addition, an

indictment is generally valid “if it provides sufficient information (1) to enable the

accused to know the accusation to which answer is required, (2) to furnish the

court adequ ate bas is for the en try of a proper judgment, and (3) to protect the

accused from do uble jeop ardy.” Id. The Defendant relies upon Hill to sup port his

argum ent in th is app eal.



       In Hill, the supreme court considered an indictment charging the defendant

with the offense of aggravated rape and concluded that the indictment was valid,

desp ite its failu re to alle ge a c ulpab le menta l state. Id. at 729. The court held

       that for offense s which n either expressly require nor plainly dispense
       with the requirement for a culpable mental state, an indictment
       which fails to allege such m ental state will be sufficient to sup port
       prosecution and conviction for that offense so long as

             (1) the lan guag e of the indictmen t is sufficient to meet the
       constitutional requirements of notice to the accused of the charge
       against which the accused mus t defen d, ade quate basis for entry of
       a proper judg ment, and protection from d ouble jeopa rdy;
              (2) the form of the indictm ent meets the requirements of Tenn.
       Code Ann. § 40-13-202; and
              (3) the mental state can be logically inferred from the
              conduct
       alleged.

Id. at 726-2 7. The c ourt em phas ized th at “the p urpos e for the tradition ally strict

pleading requirement was the existence of common law offenses whose

eleme nts were not easily ascertained by reference to a statute” and pointed out

that “[s]uch co mm on law o ffenses no long er exist.” Id. at 728. The court also

indicated that “‘the growing inclination of this court [is] to escape from the

embarrassment of technic alities that are empty and without reason, and tend to




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defeat law and right.’” Id. (quoting State v. Cornellison, 59 S.W.2d 514, 515

(Tenn . 1933)).



      In the case at hand, the Defen dant co ntends that “as to statutory offenses

which do spe cify a culpable mental state in the definition of the offense, m odern

criminal practice in Tennessee as elsewhere mandates that the required mental

state be expressly pleaded in the indictment.” He distinguish es the offe nse with

which he was charged, the sale of cocaine, from that ch arged in Hill, aggravated

rape, in two ways: He points out that the offense itself is different and argues that

the common law affecting the two crimes differs. He also stresses the fact that

the statute defining the crime charged in h is case does specify a culpable mental

state — tha t of “knowing.”



      Contrary to the Defend ant’s assertions, the Tennes see Sup reme C ourt

held in Ruff v. Sta te, 978 S.W .2d 95 (T enn. 19 98), that the reasoning in Hill

applies “with ev en gre ater for ce” in c ases where the cu lpable men tal state is

provided in the st atute c ited in the indictme nt. Id. at 99. In a recent case, our

supreme court reaffirmed its holding in Ruff, stating tha t

      an indictment which includes a reference to the criminal statute that
      sets forth the mens rea is sufficient to give a defendant notice of the
      applic able mental state. “Thus, where the constitutional and
      statutory require men ts outlin ed in Hill are met, an indictment that
      cites the pertine nt statute and us es its langu age will be sufficient to
      suppo rt a convictio n.”

State v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999) (quoting Ruff, 978 S.W.2d at
100).

      This Court has recently applied the same reasoning in cases involving the

sale of drugs . See State v. Vincent Burris , No. 02C01-9703-CC-00087, 1999 WL

150866 (Tenn . Crim. A pp., Jackso n, March 22, 199 9); State v. Howard Kareem

                                         -4-
Atkins, No. 02C01-9805-CC-00155, 199 9 W L 2418 70 (Te nn. Crim . App.,

Jackson, April 26, 19 99); Bruce E dward L ittle v. State, No. 01C01-9710-CR-

00461, 1998 WL 918608, at *3-*4 (Tenn. Crim. App., Nashville, Dec. 31, 199 8).



      In the case at bar, the indictment specifically references Tennessee Code

Annotated § 39-17-41 7, which states in p ertinent part, “It is an offense for a

defendant to know ingly . . . [s]ell a controlled substan ce . . . .” Tenn. Code Ann.

§ 39-17-4 17(a)(3) (emph asis add ed). In addition, we no te that the trial court

instructed the jury that in order for the Defendant to be found guilty of the offense

of which he was ultimately convicted, “the State must have proven beyond a

reasonable doubt that the defenda nt intentionally or know ingly sold [the]

Coca ine.” (Emphasis added.)        The jury instructions included a definition of

“knowin gly.” We conclud e that the in dictment in this case meets constitutional

and statutory requirements of notice and form and is, therefore, valid.



      Accord ingly, the jud gmen t of the trial cou rt is affirmed .



                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
NORMA McGEE OGLE, JUDGE




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