                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                             AT JACKSON



DAVID CROSS,                                      )
                                                  )
        Petitioner,                               ) C. C. A. NO. 02C01-9702-CC-00072
                                                  )
vs.                                               ) LAUDERDALE COUNTY
                                                  )
ROBERT CONLEY, WARDEN,                            ) No. 4879
                                                  )
        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.1 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 20,

1997, and the petitioner's brief was filed on March 11, 1997. The petitioner was

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

found guilty of the same in December 1994. 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, in essence, that allegations

concerning the sufficiency of an indictment are not the proper subject for 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.



        1
          Upon motion of the state, and for good cause shown, the state’s motion to late-file its motion for
affirmance pursuant to Rule 20 is hereby granted.
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 commit rape of a child by having unlawful sexual

penetration of [the victim], a child less than thirteen (13) years of age, thereby

committing the offense of RAPE OF A CHILD, in violation of T.C.A. 39-13-522(a).” 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.




                                              2
Enter, this the ___ day of May, 1997.




                           __________________________________
                           PAUL G. SUMMERS, JUDGE




                           __________________________________
                           DAVID G. HAYES, JUDGE




                           __________________________________
                           JOE G. RILEY, JUDGE




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