FILED

September 10, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1997

GARY L. COOPER, )

) No. 02C01-9610-CC-00334

Appellant )

) LAKE COUNTY

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
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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