         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE

                            MAY, 1997 SESSION       FILED
                                                      July 25, 1997
STATE OF TENNESSEE,                 )
                                                    Cecil Crowson, Jr.
                                    )               Appellate C ourt Clerk
                  Appellee,         )     No. 03C01-9610-CR-00386
                                    )
vs.                                 )     Hamblen County
                                    )
GERALD EDWARD DIXON,                )     Honorable James E. Beckner,
                                    )     Judge
                                    )
            Appellant.              )
                                    )     (Habeas Corpus)



FOR THE APPELLANT:                  FOR THE APPELLEE:

JIM W. STAMBAUGH                    JOHN KNOX WALKUP
Post Office Box 1003                Attorney General & Reporter
Morristown, TN 37816-1003
                                    MICHAEL J. FAHEY, II
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493




OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                     OPINION



              Gerald Edward Dixon, Jr., the petitioner appeals pursuant to Rule

3, Tennessee Rules of Appellate Procedure, from the trial court’s dismissal of his

petition for writ of habeas corpus. On November 29, 1993, the petitioner

pleaded guilty to one count of aggravated burglary and one count of aggravated

rape. He received concurrent sentences of three and seventeen years. The

petitioner does not challenge the validity of his conviction for aggravated

burglary, but he contends that his conviction for aggravated rape is void because

the indictment failed to allege the mens rea for that offense. See State v. Roger

Dale Hill, No. 01CO1-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20,

1996), perm. to appeal granted (Tenn. 1997).



              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); Terry D. Barber v. State,

No. 01CO1-9408-CR-00281 (Tenn. Crim. App., Nashville, Feb. 23, 1995).

Moreover, the actual indictment is not included in the record on appeal. 1

Nonetheless, we have considered the substance of the petitioner’s claim and

determine it to be without merit. Aggravated rape is defined as the

              ”unlawful sexual penetration of a victim by the
              defendant or the defendant by a victim accompanied
              by . . . [f]orce or coercion . . . and the defendant is
              armed with a weapon. . . .”

Tenn. Code Ann. § 39-13-502(a)(1)(Supp.1996).



              The indictment in this case stated that the accused


       1
              The habeas corpus petition and both briefs include the indictment’s
language.

                                          2
              . . . did unlawfully and forcibly or coercively, while
              armed with a weapon, to-wit: a handgun sexually
              penetrated T. A. H. by means of sexual intercourse,
              all in violation of Tenn. Code Ann. § 39-13-502, a
              Class A Felony.

We find that the indictment sufficiently apprised the petiioner of the offense

charged and is valid.



              Tennessee law requires that an indictment “state the facts

constituting the offense in ordinary and concise language . . . in such a manner

as to enable a person of common understanding to know what is intended. . . .”

State v. Marshall, 870 S.W.2d 532, 537 (Tenn. Crim. App. 1993) (quoting Tenn.

Code Ann. § 40-13-202). An indictment is sufficient even though an element is

not specifically alleged if the language of the indictment is such that the

defendant cannot fail to be apprised of its elements. State v. John Haws Burrell,

No. 03C01-9404-CR-00157, slip op. at 27-28 (Tenn. Crim. App., Knoxville, Feb.

11, 1997), perm. app. filed April 12, 1997.



              Sexual penetration by coercion necessarily implies the act occurred

intentionally or knowingly. Id. at 31. ‘“Coercion” means threat of kidnapping,

extortion, force or violence to be performed immediately or in the future . . . .”

Tenn. Code Ann. § 39-13-501(1)(1991). A person of common understanding

would recognize that if a person uses threats in order to sexually penetrate

another, the penetration must be intentional. State v. John Haws Burrell, slip op.

at 31.




              We find no merit in the claim. The judgment is affirmed.


                                          3
                                    __________________________
                                    CURWOOD WITT, Judge


CONCUR:

___________________________
JOE B. JONES, Presiding Judge


___________________________
JOSEPH M. TIPTON, Judge




                                4
