          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                       AUGUST SESSION, 1997


                                                            FILED
GARY L. COOPER,             )                         September 10, 1997
                            )   No. 02C01-9610-CC-00334
      Appellant             )                          Cecil Crowson, Jr.
                            )   LAKE COUNTY            Appellate C ourt Clerk
vs.                         )
                            )   Hon. JOE G. RILEY, JR., Judge
BILLY COMPTON, WARDEN,      )
                            )   (Writ of Habeas Corpus)
      Appellee              )



For the Appellant:              For the Appellee:

GARY L. COOPER, Pro Se          CHARLES W. BURSON
L.C.R.C.F., Rt 1, Box 330       Attorney General and Reporter
Tiptonville, TN 38079
                                CLINTON J. MORGAN
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                C. PHILLIP BIVENS
                                District Attorney General
                                P. O. Box E
                                Dyersburg, TN 38024




OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                      OPINION



       The appellant, Gary Cooper, appeals the trial court's dismissal of his pro

se petition for writ of habeas corpus. On April 25, 1994, the appellant pled guilty

to one count of rape in the Knox County Criminal Court and was sentenced to

eight years incarceration in the Tennessee Department of Correction. The

appellant filed the instant petition on August 19, 1996, alleging that the judgment

entered against him is void because the indictment failed to allege the mens rea

of the offense charged. The trial court properly dismissed the petition on the

basis that "allegations concerning the sufficiency of the indictment are not the

proper subject of habeas corpus relief." 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); Barber v. State, No. 01C01-9408-CR-00281 (Tenn. Crim. App. at

Nashville, Feb. 23, 1995). Accordingly, we affirm the trial court's dismissal of the

petition.



       Moreover, upon further review, we find the substance of the appellant's

claim without merit. In order for an indictment to satisfy both constitutional and

statutory guidelines, it must contain the material elements of 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); see also Tenn.

Code Ann. §40-13-202 (1990); State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim.

App. 1992). As applicable to the present case, rape is defined as the "unlawful

sexual penetration of a victim by the defendant" and "force or coercion is used to

accomplish the act." Tenn. Code Ann. § 39-13-501(a)(1) (1991). No requisite

mental state is included in the definition of the offense. When the legislature

fails to define a specific mental state in the definition of an offense, proof of

either intent, knowledge, or recklessness suffices to establish the culpable

mental state. Tenn. Code Ann. § 39-11-301(c)(1991). Accordingly, the


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accused's mental state is not a material element of the offense and need not be

included in the indictment. State v. Dison, No. 03C01-9602-CC-00051 (Tenn.

Crim. App. at Knoxville, Jan. 31, 1997). Other panels of this court have upheld

the validity of indictments under similar challenges. See e.g., Slagle v. State,

No. 03C01-9704-CR-00145 (Tenn. Crim. App. at Knoxville, June 25, 1997);

State v. Vann, No. 03C01-9602-CC-00066 (Tenn. Crim. App. at Knoxville, June

10, 1997); State v. James, No. 01C01-9601-CR-00016 (Tenn. Crim. App. at

Nashville, Mar. 27, 1997); State v. Burrell, No. 03C01-9404-CR-00157 (Tenn.

Crim. App. at Knoxville, Feb. 11, 1997).



       The indictment in the present case, reads, in pertinent part:

       . . . That Gary Cooper. . . unlawfully and feloniously did sexually
       penetrate [the victim] . . .by force and coercion. . . .


(emphasis in original). Contrary to the appellant's assertions, the allegations in

the indictment sufficiently apprise the accused of the offense of rape.

Consequently, we find the indictment valid.



       The trial court's dismissal of the appellant's petition for writ of habeas

corpus is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:




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___________________________________
JERRY L. SMITH, Judge



___________________________________
THOMAS T. WOODALL, Judge




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