           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                         MAY 1998 SESSION
                                               FILED
                                               November 24, 1998

                                               Cecil Crowson, Jr.
                                               Appellate C ourt Clerk

STATE OF TENNESSEE,           )    C.C.A. NO. 02C01-9710-CC-00379
                              )
           Appellee,          )    HARDEMAN COUNTY
                              )
V.                            )
                              )    HON. JON KERRY BLACKWOOD,
TYRONE SAIN,                  )    JUDGE
                              )
           Appe llant.        )    (EVADIN G ARRE ST)



FOR THE APPELLANT:                 FOR THE APPELLEE:

STEVEN E. FARESE                   JOHN KNOX WALKUP
P.O. Box 98                        Attorney General & Reporter
Ashland, MS 38603
                                   PETE R M. C OUG HLAN
                                   Assistant Attorney General
                                   2nd Floor, Cordell Hull Building
                                   425 Fifth Avenue North
                                   Nashville, TN 37243

                                   ELIZABETH T. RICE
                                   District Attorney General

                                   JERRY W. NORWOOD
                                   Assistant District Attorney General
                                   25th Judicial District
                                   Hardeman County Courthouse
                                   Bolivar, TN 38008-2359




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION
             The Defenda nt, Tyrone Sain, was convicted in the Circuit Court of

Hardeman County of the offense of evading arrest, in violation of Tennessee Code

Annotated section 39-16-603. He appealed as of right and pre sents two (2) issues

for review: (1) The count of the indictment charging the offense of evading arrest is

void because it alleged a mens rea of “knowingly” when the statute requires a mens

rea of “intentionally;” and (2) If the indictment is void and therefore must be

dismissed, future prosecution of Defendant for this particular offense is barred by the

applic able statute of limitations.    After careful review of this record, and the

argum ents of the State an d Defe ndant, w e affirm the judgm ent of the tria l court.



             Defendant was ch arged in a fou r (4) cou nt indic tmen t as follo ws:

Count 1, possession of cocaine with intent to manufacture, deliver, or sell, a Class

B felony; count 2, evading arrest in violation of Tennessee Code Annotated section

39-16-603; count 3, speeding in violation of Tennessee Code Annotated section 55-

8-152; and co unt 4, failure to stop his vehicle at a stop sign in violation of Tennessee

Code Annotated section 55-8-149. In the first two (2) counts, Ded rick K. McGu ire

was also cha rged as a co-de fendan t.         McGu ire is not a party to th is app eal.

Following a jury trial, Defe ndant w as foun d guilty of co unts 2 and 4 and was

acquitted of counts 1 and 3 . This appeal pertains only to the conviction for evading

arrest.



             The record on appe al is very spa rse. It conta ins only the docum ents

filed with the trial court clerk and a transcript of a hearing in the trial court.   The

transcript conta ins on ly the post-trial hearing on the motion to dismiss. No proof was

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taken at this hearing. There is no transcript in the record of the trial or any pretrial

hearing s, if any were held.



             According to the indictm ent, the offense was alleged to have occurred

on December 14, 1993. This was prior to the 1995 amendment of the statute setting

forth the offense of evading arrest, Tennessee Code Annotated section 39-16-603.

Therefore, at the time of the offense, the applicable statute read as follows:


      39-16-603. Evading a rrest. - (a) It is unlawful for any pe rson to
      intentionally flee from anyone the person knows to be a law
      enforcement officer and the person:

             (1) Knows th e officer is attempting to arrest the perso n; or
             (2) Has been arrested.

             (b) It is a defense to prosecution under this section that the
      attem pted a rrest w as un lawful.

             (c) A violation of this section is a C lass A misd emean or.


Tenn. C ode Ann . § 39-16-603 (1991) (em phasis add ed).



             Count 2 of the indictment alleges as follows:


      And the Grand Jurors on th eir oath afores aid furth er pres ent tha t in
      Hardeman County on or about the 14 th day of Dece mber, 199 3, before
      the finding of this ind ictme nt, the s aid DEDRICK K. MCGUIRE AND
      TYRONE SAIN did unlawfully and knowingly flee from Sheriff Delphus
      Hicks and D eputy Doug Brow n of the Hard ema n Cou nty Sh eriff’s
      Depa rtment, known to DEDRICK K. MCGUIRE AND TYRONE SAIN
      to be a law enforcement officers [sic] from effecting the arrest of the
      said DEDR ICK K . MCG UIRE AND T YRO NE S AIN, in violation of
      T.C.A. 39-16-603, against the peace and dignity of the State of
      Tennessee.



             From the judgment, it appears that the jury trial was held January 22,

1997. There is nothing in the record to indicate that Defendant brought to the

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attention of the trial court prior to trial by motion or otherwise his argument that the

incorrect mens rea was alleg ed in cou nt 2 of the in dictme nt. However, on February

3, 1997, less than two (2) weeks after the jury trial, Defendant’s counsel filed (1) a

motion to dismiss count 2 of the indictment, and (2) a brief in support of the motion

to dismiss. The basis for the motion to dism iss was that count 2 of the indictment

failed to allege an essential element of the offense, i.e. the mens rea of

“intentionally.”



              The precise issue presented by Defendant in this appeal can be set

forth as follows: “If a criminal statute re quires a me ntal culpability of ‘intentionally’

and the indictment alleges ‘knowing’ mental culpability, does this render the

indictment void becau se it fails to state an offe nse? ” Our re searc h indic ates th at this

is an issue of first impre ssion in T ennes see. In State v. Hill, 954 S.W.2d 725 (Tenn.

1997), our supreme court did not address the spec ific issue raised in this ap peal, but

did determine that the required mental culpability may be inferred from the nature of

criminal conduct alleged in the indictment when the criminal offense at issue neither

expre ssly requires nor plainly dispenses with a requirement for a culpable mental

state. Id. at 729.



              In discussing Tennessee Code Annotated section 39-11-302, which

defines the culpable mental states, this court in State v. Crowe noted the following:


       The statutory scheme creates a hierarchy, and, while each of the four
       mental elements are unique, [intentional, knowing, reckless, and
       criminal negligence] the lesser levels of culpability are included within
       the greater.


914 S.W .2d 933 , 937 (T enn. 19 95).



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              W hile proof of intentional culpability necessarily includes proof of

knowing culpa bility, the c onver se is not nece ssarily true. See Id. at 937, n. 2. There

is, therefore, a defect in an indictment wherein a lesser level of me ntal culpa bility

than that required by statute is alleged in the indictment. Review of this issue

requires us to first determine whether the objection to the defective indictment must

be raised pre-trial. Rule 12(b) of the Tennessee Rules of Criminal Procedure

provides in part as follows:


              (b) Pretrial Motions. Any defense, objection, or request which
       is capa ble of determination without the trial of the general issue may be
       raised before trial b y motion . Motio ns may be written or oral at the
       discretion of the judg e. The following must be raised p rior to trial:

              (2) Defenses and objection s base d on de fects in the indictme nt,
       presentment or information (other than that it fails to show jurisdiction
       in the court or to charge an offense which objections shall be noticed
       by the co urt during the pen dency o f the proce edings ).


Tenn. R . Crim. P. 12(b) a nd (2) (emp hasis adde d).



              The indictmen t allege d “kno wing” c ondu ct by the Defe ndan t. W hile

proof of this conduct by the Defe ndan t would not nece ssarily prove that Defendant

also acted intentionally, it is not foreclosed that the “kno wing” a ct by D efend ant in

this particular c ase co uld not ha ve also be en don e “intention ally.” The transcript of

the trial is no t includ ed in the record and we therefore are unable to review the proof

presented at trial. Defendant d id not file a motion for new trial, but only filed the

motion to dismiss post-trial as discussed earlier in this op inion. In this ap peal,

Defendant does not challenge the sufficiency of the evide nce to sustain a conviction.

The trial court entered a sentencing order, an order overruling the motion to dismiss,

and signed the judgment for the conviction of evading arrest. We presume that the

                                            5
trial court approved the verdict returned by the jury. See State v. Braden, 867

S.W.2d 750 (Tenn. Crim. App. 1993).                We therefore presume that there was

sufficient evidence to support the conviction for evading arrest, including evidence

that Defend ant acted with “inten tional” mental cu lpability.



              Since proof of “knowing” conduct does not nece ssarily disprove

“intentio nal” conduct, the defect in the indictment is not of the character which would

be class ified as a d efect that fa ils to charge an offens e, and the refore, a motion to

dismiss based upon the alleged defect in this indictment must be bro ught p re-trial,

or it is waived . Tenn. R . Crim. P . 12(f).



              W e also note that a recent opinion of our supreme court lends sup port

to the conclusion reached in this case. In Dykes v. Compton, _____ S.W.2d _____,

No. 02-S-01-9711-CC-00105, Lake County (Tenn., Nashville, Sept. 21, 1998) the

court addre ssed the issu e of wh ether a challe nge to an indictment may be

addressed through a petition for writ of habeas corpus, and if it could be, whether the

appe llant in that case wa s entitled to the relief he sou ght. The su preme co urt

concluded that a cha llenge to an indictment may be addressed in a habeas corpus

petition. Howe ver, the co urt further held that the appellant was not entitled to the

relief he sought in that case. Specifically, the appellant argued that the indictment

which led to his conviction for aggravated rape was void because it failed to make

any reference to a culpable mental state. In holding that the indictment in that case

satisfied the requ iremen ts of Hill, 954 S.W.2d 725, the supreme court state d in part,

“[a]pplying Hill, we find that the langua ge of the a bove ind ictmen t, as well as the

specific reference to the statute allegedly violated, provided the app ellant with




                                               6
amp le notice of the offense charged.” Dykes, _____ S.W.2d _____, No. 02-S-01-

9711-CC-00105, slip op. at 6. The court went on to say the following:

        In conclu sion, we w ish to em phas ize once again the fact that the
       Court has moved away from the strict pleading requirements of
       common law. As we noted in Hill, ‘the purpose for the traditionally
       strict pleading requirement was the existence of common law offenses
       whose elements were not easily ascertained by reference to a statute.
       Such c omm on law o ffenses n o longe r exist.’

       Id. at 6-7 (em phasis a dded) (c itation om itted).


              In the case sub judice, there was a specific reference in the indictment

to the statute allegedly violated. The element of “intentio nal” culpable menta l state

was easily ascertained by reference to this statute. We conclude that the reasoning

contained in Dykes supports our holding that the motion to dismiss based upon the

allege d defe ct in this in dictm ent is w aived s ince it w as no t broug ht pretr ial.


              Based upon the foregoing, we conclude that Defendant’s first issue is

not well taken. Accordingly, the second issue presented by Defendant is moot. The

judgment of the trial court is therefore affirmed.

                                     ____________________________________
                                     THOMAS T. W OODALL, Judge

CONCUR:

(See sepa rate concurring opinion)
JOHN H. PEAY, Judge

___________________________________
PAUL G. SUMMERS , Judge




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