              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE                  FILED
                                AUGUST 1998 SESSION
                                                                   December 31, 1998

                                                                  Cecil W. Crowson
                                                                 Appellate Court Clerk
BRUCE EDWARD LITTLE,                       )
                                           )      C.C.A. NO. 01C01-9710-CR-00461
              Appellant,                   )
                                           )      DAVIDSON COUNTY
VS.                                        )
                                           )      HON. WALTER C. KURTZ,
STATE OF TENNESSEE,                        )      JUDGE
                                           )
              Appellee.                    )      (Post-Conviction)



                                      DISSENT



              I respectfully disagree with the majority’s conclusion that all three counts of

the indictment on which the defendant was found guilty provide sufficient facts from which

the culpable mental state of “knowingly” can be inferred. The language in count four of

the indictment, which alleged possession of cocaine with the intent to deliver, was

sufficient because “[b]y alleging that the defendant possessed cocaine which he intended

to sell, the indictment necessarily implied that it was a knowing possession.” State v.

Marshall, 870 S.W.2d 532, 538 (Tenn. Crim. App. 1993); see T.C.A. § 39-11-301(a)(2)

(“intentional” includes “knowing”). Likewise, the language in count one, which charged

the defendant with conspiring to deliver cocaine, was sufficient because logically, one can

only knowingly or intentionally conspire. It is the language in count two, which charged

the defendant with delivery of cocaine, I find insufficient.



              As I noted in my dissent in State v. Tyrone Sain, 02C01-9710-CC-00379,

Hardeman County (Tenn. Crim. App. filed November 24, 1998, at Jackson), the case of

Dykes v. Compton, ___ S.W.2d ___, No. 02S01-9711-CC-00105 (Tenn. September 21,
1998), involved an offense for which the culpable mental state was not specified in the

violated statute of count two, which distinguishes it from the instant case. Because the

charged statute in count two specified a particular mental state, i.e., “knowing,” merely

referencing the statute in the indictment will generally not suffice in terms of alleging all

essential elements, including scienter. Marshall, 870 S.W.2d at 537; State v. Brandon

Wilson, No. 03C01-9609-CC-00352, Blount County (Tenn. Crim. App. filed September

1, 1998, at Knoxville). Thus, unlike the majority in this case, I do not find support in

Dykes and would instead conclude that count two of the indictment failed to sufficiently

allege scienter, an essential element of delivery of cocaine, which is included in the

statute. As such, I would reverse and dismiss the conviction on count two.




                                                  _______________________________
                                                  JOHN H. PEAY, Judge




                                             2
