              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON



JAMES A. BROWN,                           )
                                          )
       Petitioner,                        ) C. C. A. NO. 02C01-9702-CC-00056
                                          )
vs.

FRED J. RANEY, WARDEN,
                                          ) LAKE COUNTY
                                          )
                                          ) No. 96-7573
                                                                  FILED
                                          )                      June 3, 1997
       Respondent.                        )
                                                                  Cecil Crowson, Jr.
                                                                   Appellate C ourt Clerk

                                        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's brief was filed on March 18, 1997. The petitioner was

originally indicted on one count of rape of a child in May 1994, and was subsequently

convicted of the same on June 2, 1995. 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.



              Having reviewed the state’s motion in light of the petitioner’s brief 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 the indictment are not subject to habeas corpus relief.” The petitioner

subsequently filed a motion to reconsider the order of dismissal, which the trial court

denied. 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 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. Rape of a child is defined as “the unlawful sexual

penetration of a victim by the defendant . . . if such victim is less than thirteen (13)

years of age.” T.C.A. § 39-13-522 (1996 supp.). The indictment at issue before us

charged that the petitioner “did unlawfully sexually penetrate [the victim], a child less

than thirteen (13) years of age, in violation of T.C.A. 39-13-522.” We find that the

indictment at issue here sufficiently apprised the petitioner 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 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, 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.




              Enter, this the ___ day of May, 1997.



                                              2
__________________________________
PAUL G. SUMMERS, JUDGE




__________________________________
JOE B. JONES, PRESIDING JUDGE




__________________________________
DAVID G. HAYES, JUDGE




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