           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                       DECEMBER SESSION, 1996
                                                                          FILED
                                                                            June 10, 1997
STATE OF TENNESSEE,                 )
                                    )      No. 03C01-9602-CC-00066 Cecil Crowson, Jr.
                                                                          Appellate C ourt Clerk
       Appellee                     )
                                    )      McMINN COUNTY
vs.                                 )
                                    )      Hon. R. STEVEN BEBB, Judge
GUSSIE WILLIS VANN,                 )
                                    )      (Felony Murder - Death Penalty;
       Appellant                    )      Incest)



                            SEPARATE CONCURRING


       I concur in the result reached by the majority in affirming all convictions

and the appellant's sentence of death. I write separately only to address the

issue of whether the indictment for incest is fatally defective for failing to include

the requisite mens rea. I agree that the indictment is valid, but for reasons other

than those articulated by the majority. The majority relies upon State v. Marshall,

870 S.W.2d 532, 537 (Tenn. Crim. App. 1993). In Marshall, this court held that

the mens rea is an essential element of an offense and, therefore, must be

included in the indictment. Id. at 537. This court further held that, if the mens

rea is implicit in the allegations contained in the indictment, the indictment is

adequate. Id. at 538. The majority applies this rationale, concluding that the

mental state of "knowingly" is "necessarily implied by the allegations in the

indictment."



       However, as noted by the majority, the legislature did not include the

requisite mental state in the definition of the offense of incest, permitting the

application of any one of three mental states set forth in Tenn. Code Ann. § 39-

11-301(c). I would simply adhere to this court's position in State v. Dison, No.

03C01-9602-CC-00051 (Tenn. Crim. App. at Knoxville, Jan. 31, 1997), in which

we held that, under these circumstances, the accused's culpable mental state is
not an essential element of the offense and need not be alleged in the

indictment.



                                 ____________________________________
                                 DAVID G. HAYES, Judge




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