             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON               FILED
                            FEBRUARY 1999 SESSION
                                                             April 26, 1999

                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )    C.C.A. NO. 02C01-9805-CC-00155
             Appellee,              )
                                    )    HAYWOOD COUNTY
VS.                                 )
                                    )    HON. DICK JERMAN, JR.,
HOWARD KAREEM ATKINS                )    JUDGE
    alias “RED”                     )
                                    )
             Appellant.             )    (Sale of Cocaine)



FOR THE APPELLANT:                       FOR THE APPELLEE:


C. MICHAEL ROBBINS                       JOHN KNOX WALKUP
46 North Third St., Suite 719            Attorney General & Reporter
Memphis, TN 38103
                                         ELIZABETH T. RYAN
                                         Asst. Attorney General
                                         John Sevier Bldg.
                                         425 Fifth Ave., North
                                         Nashville, TN 37243-0493

                                         CLAYBURN L. PEEPLES
                                         District Attorney General

                                         LARRY HARDISTER
                                                -and-
                                         BRYAN FULLER
                                         Asst. District Attorneys General
                                         109 East First St.
                                         Trenton, TN 38382



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was convicted by a jury of selling .5 grams or more of

cocaine and sentenced to serve eight years in the Tennessee Department of Correction.

He now appeals, challenging the sufficiency of the indictment. Finding no merit to his

arguments, we affirm.



              Tennessee Code Annotated § 39-17-417 prohibits a defendant from

knowingly selling a controlled substance. T.C.A. § 39-17-417(a)(3)(Supp. 1998). “[I]f the

amount involved is point five (.5) grams or more of any substance containing cocaine”

then the offense is a Class B felony. T.C.A. § 39-17-417(c)(1)(Supp. 1998). The

indictment filed against the defendant states, in pertinent part, that the defendant “did

unlawfully sell a controlled substance, to wit: COCAINE, (over .5 grams), a schedule II

controlled substance, as classified in Section 39-17-408 . . . in violation of T.C.A. 39-17-

417.”



              The defendant relies upon State v. Hill, 954 S.W.2d 725 (Tenn. 1997), to

argue that the indictment is insufficient because it fails to allege that the defendant acted

knowingly. Specifically, the defendant points to language in Hill that implies the mens rea

element of a crime should be alleged in an indictment when it is specifically included in

the statutory definition of the charged offense. See Hill, 954 S.W.2d at 726, 729. Thus,

according to the defendant, the indictment in this case is insufficient because it omits the

term “knowingly” even though “knowingly” is specifically included in the statutory definition

of the charged offense. See § 39-17-417(a)(3).



              The defendant’s argument neglects Ruff v. State, 978 S.W.2d 95 (Tenn.



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1998), a recent Tennessee Supreme Court case interpreting Hill. In Ruff, the court

determined that where the culpable mental state is provided by a statute cited in the

indictment, the indictment will be sufficient so long as the requirements set out in Hill are

met, that is, (a) that the language provides the defendant with sufficient notice of the

crime charged, an adequate basis for entry of a proper judgment, and protection from

double jeopardy; (b) that the form of the indictment complies with T.C.A. § 40-13-202;

and (c) that the mental state can be logically inferred from the conduct alleged. Ruff, 978

S.W.2d at 99, 97. Here, each of these requirements is met. Thus, the defendant’s

argument fails.



              The defendant also complains that the indictment charges him with selling

cocaine weighing .5 grams or more, but the evidence established only that he sold a

substance containing cocaine weighing .5 grams or more and it was not established how

much the pure cocaine weighed. The defendant labels this as a sufficiency of the

evidence issue. This is not a sufficiency of the evidence issue because in order to

establish a Class B felony under § 39-17-417(c), the State need not prove that the pure

cocaine in the contraband substance weighed .5 grams or more, so long as the weight

of the cocaine combined with the other substances totaled .5 grams or more. See State

v. Alcorn, 741 S.W.2d 135, 138 (Tenn. Crim. App. 1987). Thus, the State proved what

§ 39-17-417(c)(1) required it to prove, that is, that the substance containing cocaine that

was sold by the defendant weighed .5 grams or more.



              The defendant’s true point of contention is that the indictment is insufficient

because it alleges he sold cocaine weighing .5 grams or more, rather than a substance

containing cocaine weighing .5 grams or more, as § 39-17-417(c)(1) provides. The

indictment, however, complies with constitutional protections, including that of notice to



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the accused of the crime charged.          Moreover, the indictment complies with the

requirements delineated in § 40-13-202. Thus, it is sufficient to support the defendant’s

conviction.



                Finding no merit to the defendant’s arguments, his conviction and sentence

are affirmed.



                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



_________________________________
THOMAS T. W OODALL, Judge



_________________________________
JAMES C. BEASLEY, SR., Special Judge




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