              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON                    FILED
                                                                       April 17, 1997
GREGORY TURNER,                            )
                                                                Cecil Crowson, Jr.
                                           )                     Appellate C ourt Clerk
       Petitioner,                         ) C. C. A. NO. 02C01-9701-CC-00025
                                           )
vs.                                        ) LAUDERDALE COUNTY
                                           )
JIMMY HARRISON, WARDEN,                    ) No. 4869
                                           )
       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. 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 January 17,

1997, and the petitioner's brief was filed on February 18, 1997. The petitioner was

originally indicted on one count of aggravated rape in January 1994, and was

subsequently convicted of the same. 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 effect, that this is not an

appropriate matter 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. 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. Aggravated rape is defined as the “unlawful sexual

penetration of a victim by the defendant” accompanied by certain enumerated

aggravating circumstances, including that the “defendant causes bodily injury to the

victim.” T.C.A. § 39-13-502 (1996 supp.).



              The indictment at issue before us charged that the petitioner did

“unlawfully sexually penetrate and cause bodily injury to [the victim], in violation of

T.C.A. 39-13-502.” We find that the indictment at issue here sufficiently apprised the

petitioner of the offenses 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.




              Enter, this the ___ day of April, 1997.



                                              2
__________________________________
PAUL G. SUMMERS, JUDGE




__________________________________
JOE B. JONES, PRESIDING JUDGE




__________________________________
DAVID G. HAYES, JUDGE




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