                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                             AT JACKSON



RICKY LEE OLDHAM,                                 )
                                                  )
        Petitioner,                               ) C. C. A. NO. 02C01-9702-CC-00055
                                                  )
vs.                                               ) LAKE COUNTY
                                                  )
BILLY COMPTON, WARDEN,                            ) No. 97-7585
                                                  )
        Respondent.                               )



                                                ORDER



                This matter is before the Court upon the state’s motion to affirm the

judgment of the trial court under Rule 20, Rules of the Court of Criminal Appeals. The

case before this Court represents an appeal from the trial court’s denial of the

petitioner’s petition for writ of habeas corpus. The record was filed on February 11,

1997, and the petitioner filed his brief on March 6, 1997. It appears the petitioner was

originally indicted on one court of burglary in January 1995, and subsequently pled

guilty to the same. In the present appeal, the petitioner, relying in part upon State v.

Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996),

contends the judgment entered against him is void because the indictment failed to

allege the mens rea of the offense charged.1



                Having reviewed the state’s motion in light of the petitioner’s response

and the entire record on appeal, we conclude that the motion is well-taken and should

be granted. The trial judge dismissed the petition stating that “[a]llegations concerning

the sufficiency of an indictment are not subject to habeas corpus relief.” It is well

established that challenges to the sufficiency of an indictment cannot be tested in a

habeas corpus proceeding. See Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim.

App. 1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). A panel of

         1
           In his brief, the petitioner also mentions that he was indicted on an unrelated burglary charge on
April 3, 1995, to which he pled guilty. Nothing pertaining to this indictment or judgment is contained in the
record; nor did the petitioner challenge this charge in the proceeding below. Accordingly, this matter is not
properly before the Court. T.R.A.P. 36(a).
this Court recently held the same in a capital case. Barber v. State, No. 01C01-9408-

CR-00281 (Tenn. Crim. App., Feb. 23, 1995).



              Nonetheless, we have considered the substance of the petitioner’s claim

and determine it to be without merit. At the time of the offense in this case, one was

guilty of burglary when that person, “without the effective consent of the property owner,

enter[ed] any freight or passenger car, automobile . . . or other motor vehicle with intent

to commit a felony, theft or assault or commits or attempts to commit a felony, theft or

assault.” T.C.A. § 39-14-402(a)(4) (1991). The indictment at issue before us charged

that the petitioner “did unlawfully enter a vehicle belonging to [the victim], without the

effective consent of the owner, with the intent to commit Theft of Property, in violation of

T.C.A. §39-14-402." We find that the indictment at issue here sufficiently apprised the

appellant of the offense charged, and is therefore valid.



              A valid indictment in this state must contain the elements constituting the

offense and must sufficiently apprise the accused of the offense he or she is called

upon to defend. State v. Tate, 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995). When

the legislature neglects, however, to include the requisite mental state in the definition

of an offense, permitting the application of any one of the three mental states set forth

in T.C.A. § 39-11-301(c), an allegation of criminal conduct will provide the accused

constitutionally adequate notice of the facts constituting the offense. State v. Dison,

No. 03C01-9602-CC-00051 (Tenn. Crim. App., Jan. 31, 1997). The accused’s culpable

mental state for entering the vehicle, therefore, is not an essential element of the

offense. Id. Consequently, the failure to allege a culpable mental state in this case did

not invalidate the indictment.



              For the reasons stated above, it is hereby ORDERED, pursuant to Rule

20, Rules of the Court of Criminal Appeals, that the judgment of the trial court

dismissing the petition for writ of habeas corpus is affirmed. Costs of this appeal shall

be assessed against the petitioner.



                                              2
Enter, this the ___ day of May, 1997.




                           __________________________________
                           PAUL G. SUMMERS, JUDGE




                           __________________________________
                           DAVID G. HAYES, JUDGE




                           __________________________________
                           JOE G. RILEY, JUDGE




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