              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON                    FILED
                                                                       April 9, 1997
RONALD PARKER,                            )
                                                               Cecil Crowson, Jr.
                                          )                     Appellate C ourt Clerk
       Petitioner,                        ) C. C. A. NO. 02C01-9612-CC-00467
                                          )
vs.                                       ) LAKE COUNTY
                                          )
STATE OF TENNESSEE,                       ) No. 96-7561
                                          )
       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 December 17,

1996, and the petitioner filed his brief on January 8, 1997. The petitioner was originally

indicted on three counts of burglary in July 1994. The petitioner 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.



              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

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 offenses in this case, one was

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

enter[ed] a building other than a habitation (or any portion thereof) not open to the

public, with the intent to commit a felony or theft.” T.C.A. § 39-14-402(a) (1991). The

indictment at issue before us charged that the petitioner did “unlawfully enter a building

other than a habitation . . ., not open to the public, without the effective consent of the

[owner], with the intent to commit theft." The petitioner seems to suggest that the

indictment must state that the petitioner entered the building “intentionally, knowingly, or

recklessly.” See T.C.A. § 39-11-301(c) (1991). We find that the indictment at issue

here sufficiently apprised the appellant of the offenses 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 for entering the building, 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 indictments. Cf. State v. Marshall, 870 S.W.2d 532, 536-38 (Tenn.

Crim. App. 1993) (holding that if language of indictment “necessarily implies” mens rea,

indictment is not fatal).



              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 March, 1997.




                          __________________________________
                          DAVID G. HAYES, JUDGE




                           __________________________________
                           JOE B. JONES, PRESIDING JUDGE




                           __________________________________
                           PAUL G. SUMMERS, JUDGE




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