# FILED
July 23, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT JACKSON D ECEMBER 1996 S ESSION

WILLIE D. LOC UST, ) ) Appellant, ) No. 02C01-9512- CC-00356

) ) Dyer C ounty v. ) ) Honorable Joe G. Riley , Judge ) STATE OF TENNESSEE, ) (Post-Conv iction) ) Appellee. )

CONCURR ING OPINION

I concur in t he results and most of the reasoning in the majori ty opinion. I write s eparately b ecause I believ e that State v. Roger Dale Hill, Sr. , No. 01C01-950 8- CC-00267, Wayne County (Tenn. Crim. Ap p. June 20, 1996), app. granted (Tenn. Jan. 6, 1997), reflect s the proper ana lysis of the traditional charging instrument requirements in Tennessee in l ight of the 1989 c riminal code changes by which theculpable mental state is made a mate rial element o f any offense for whi ch the offense statute does not negate the need for a

mens rea. See T.C.A. §§ 39-11-201(a) and -301(b).
The requirement for all the mater ial elements to be alleged i n the indictment is

not solely

based upon notice and double jeopardy protections. The true test of the s ufficiency of an indictment is

not whether it could have been m ade more definite and cer tain, but whether it contains the elements of the offense intended to be charged , “ and sufficiently apprises the de fendant of what he must be prepa red to m eet, an d, in case any other proceed ings are taken against him fora similar offense, whethe r the record shows with acc uracy to what e xt ent he may plead a former acquittal or convic

tion.” Hagner v . United States , 285 U.S. 427, 430, 52 S. Ct. 417, 419 (1932) (empha sis added) (noting that the “ri gor of old common- law rul es of criminal pleading” h ad yielded2

to such a test) . Obvious ly, the U nited States Supreme Court vi ewed the mater ial elements requi rement to exi st separately from the other req uirements. For example, the constituti onal protecti on of the right to grand jur y consider

ation of whether

sufficient evidence ex ists to warrant indic tment or presentment , necessaril y implied in Articl e I, Section 14 of the Con stitution of Tennesse e, is left in do ubt when the i ndictment does not contain all of the material el ements requir ed to prove t he offense.
However, the failure of the indictme nt in this case to contain an express allegation of the mens rea does not mean that the indi ctment is ins ufficient. “Upon a proceeding after

verdict at least, no pr

ejudice being shown, it is enough that the necessary

facts appear in an y form, or by fair construc

tion can be found w ithin the terms of the indictme nt.” Hagner , 285 U.S. at 433, 52 S. Ct. at 420 ; State v. Marshall , 870 S.W .2d 532, 538 (Tenn . Crim. App. 1993). The indictm ent in the convicting case alleged that the Appellant “ unlawfully , and with force or coerc ion, did sex ually penetr ate . . . the vi ctim, whi le armed wi th a weapon . . . .” These al legations of forc e and coercion neces sarily

contain a level of awarenes s regardi ng the sex ual penetration that reflects it t o be an intended act

. See State v. John Haws Burrell , No. 03C01-9404-CR00157, Anderson Co unty (Tenn. C rim. App. Feb. 11, 1997), applic. filed (Tenn. Apr. 10, 1997). Therefore, theindictment was sufficient.

_____________________________ Joseph M. Tipto n, Judge