              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                            DECEMBER 1996 SESSION
                                                              FILED
                                                                 July 23, 1997

                                                              Cecil Crowson, Jr.
WILLIE D. LOCUST,                 )                           Appellate C ourt Clerk
                                  )
             Appellant,           )      No. 02C01-9512-CC-00356
                                  )
                                  )       Dyer County
v.                                )
                                  )       Honorable Joe G. Riley, Judge
                                  )
STATE OF TENNESSEE,               )       (Post-Conviction)
                                  )
             Appellee.            )



                               CONCURRING OPINION



             I concur in the results and most of the reasoning in the majority opinion. I

write separately because I believe that State v. Roger Dale Hill, Sr., No. 01C01-9508-

CC-00267, Wayne County (Tenn. Crim. App. June 20, 1996), app. granted (Tenn. Jan.

6, 1997), reflects the proper analysis of the traditional charging instrument requirements

in Tennessee in light of the 1989 criminal code changes by which the culpable mental

state is made a material element of any offense for which the offense statute does not

negate the need for a mens rea. See T.C.A. §§ 39-11-201(a) and -301(b).



             The requirement for all the material elements to be alleged in the

indictment is not solely based upon notice and double jeopardy protections.

             The true test of the sufficiency of an indictment is not whether
             it could have been made more definite and certain, but
             whether it contains the elements of the offense intended to be
             charged, “and sufficiently apprises the defendant of what he
             must be prepared to meet, and, in case any other proceedings
             are taken against him for a similar offense, whether the record
             shows with accuracy to what extent he may plead a former
             acquittal or conviction.”

Hagner v. United States, 285 U.S. 427, 430, 52 S. Ct. 417, 419 (1932) (emphasis

added) (noting that the “rigor of old common-law rules of criminal pleading” had yielded
to such a test). Obviously, the United States Supreme Court viewed the material

elements requirement to exist separately from the other requirements. For example,

the constitutional protection of the right to grand jury consideration of whether sufficient

evidence exists to warrant indictment or presentment, necessarily implied in Article I,

Section 14 of the Constitution of Tennessee, is left in doubt when the indictment does

not contain all of the material elements required to prove the offense.



              However, the failure of the indictment in this case to contain an express

allegation of the mens rea does not mean that the indictment is insufficient. “Upon a

proceeding after verdict at least, no prejudice being shown, it is enough that the

necessary facts appear in any form, or by fair construction can be found within the

terms of the indictment.” Hagner, 285 U.S. at 433, 52 S. Ct. at 420; State v. Marshall,

870 S.W.2d 532, 538 (Tenn. Crim. App. 1993). The indictment in the convicting case

alleged that the Appellant “unlawfully, and with force or coercion, did sexually penetrate

. . . the victim, while armed with a weapon . . . .” These allegations of force and

coercion necessarily contain a level of awareness regarding the sexual penetration that

reflects it to be an intended act. See State v. John Haws Burrell, No. 03C01-9404-CR-

00157, Anderson County (Tenn. Crim. App. Feb. 11, 1997), applic. filed (Tenn. Apr. 10,

1997). Therefore, the indictment was sufficient.



                                                  _____________________________
                                                  Joseph M. Tipton, Judge




                                             2
