# FILED
June 3, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON
JAMES A. BROWN, ) ) Petitioner, ) C. C. A. NO. 02C01-9702-CC-00056 ) vs. ) LAKE COUNTY ) FRED J. RANEY, WARDEN, ) No. 96-7573 ) Respondent. )

O R D E R

This matter is before the Court u pon the state’s motion to affirm the judgment of the trial court und er Rule 20, Rules of the Cour t of Criminal Appeals. The case before this Court repre sents an appeal from the trial co urt’s denial of the petitioner’s petition for w rit of habeas corpus. The recor d was filed on February 11, 1997, and the petitioner's bri ef was filed on March 18, 1997. The petitioner was originally indicted on one count of rape of a child in May 1994, and was subsequently convicted of the same on June 2, 1995. In the presen t 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 ent ered against him is v

oid because the indictment failed to allege the mens rea of the offense charged.

Having review

ed the state’s motion in lig ht of the petitioner’s brief and the entire record on appeal, w e conclude that the motion is w ell-taken and should be granted. The trial judg e dismissed the petition, sta ting that “[a]llegati ons concerning the sufficiency of the indictment are not subject to habeas corpus r elief.” The petitioner subsequently filed a motion to reconsider the order of dismissal, which the trial court denied. It is well es

tablished that challenges to the sufficiency of an indictment c annot be tested in a habeas corpus pro ceeding. 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 r ecently held the same in a c apital case. Barber v. State ,2

No. 01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 19 95).

Nonetheless, we have considered the substance of the petition er’s claim and determine it to be witho ut merit. Rape of a child is defined as “the unlawful sex ual penetration of a victim by the defendant . . . if such victi m is less than thirteen (13 ) years of age.” T.C.A. § 39- 13-522 (1996 supp.). The indictment at issue before us charged that the petitioner “did unlawfully sexually penetrate [the victim], a child less than thirteen (13) years of age, in violation of T.C.A . 39-13-522.” We find that the indictment at issue here suffici ently apprised the petiti oner of the offense charged, and is therefore valid.

A valid indictment in th is state must contain the elements constituting the offense and must sufficiently apprise the accused of the offense he is called upon t o defend. State v. Tate , 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995). When the legislature neglect

s, however, to incl ude the requisite mental sta te 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 al legation of criminal conduct will provide the accused constitutionally adeq uate notice of the facts constituting the offense. State v. Dison , No. 03C01-9602-CC-00051 (Tenn. Crim. App., Jan. 31, 19 97). The accused’s culpable mental state, therefore, is not an essential element of the offense. Id. Conseque ntly, the failure to allege a cul pable mental state in this cas e 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 judgme nt 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 May , 1997.3 __________________________________ PAUL G. SUMMERS, JUD GE

__________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ DAVID G. HAYES, JUDG E