# FILED

April 9, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

RONALD PARKER, ) ) Petitioner, ) C. C. A. NO. 02C01-9612-CC-00467 ) vs. ) LAKE COUNTY ) STATE OF TENN ESSEE, ) No. 96-7561 ) 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 December 17, 1996, and the petitioner filed his brief on Janu ary 8, 1997. The petitioner was originally indicted on three counts of burg lary in July 1994. The petitioner subsequently pled guilty to 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, 19 96), contends the judgment entered ag ainst him is void becaus e the indictment failed to allege the mens rea of the offense charg ed.

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 judg e dismissed the petition stat ing that “[a]llegati ons concerning the sufficiency of an indictment are not subject to 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).2 Nonetheless, we have considered the substance of the petition er’s claim and determine it to be witho ut merit. At the time of the offenses in th is case, one was guilty of burglary when that person “without the effective consent of the property owner, enter[ed] a building other than a habitation (or any po rtion thereof) not open to the public, with the intent to commit a felony or theft.” T.C. A. § 39-14-402(a) (1991). The indictment at issue before us char ged that the petitioner did “ unlawfully enter a buil ding other than a habitation . . ., not open to the public, without the effective consent of the [owner], with the i ntent to commit theft." The petitioner s eems to suggest that the indictment must state that the peti tioner entered the building “intentionally, know

ingly, or recklessly.” See T.C.A. § 39-11-301(c) (1991) . We find that the indictment at issue here sufficiently apprised the appellant of the offenses charged, and i s 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 t he 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 for entering the bui lding, 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 indic

tments. Cf. State v. Marshall , 870 S.W.2d 532, 536-38 (Tenn. Crim. App. 1993) (holding that if language of indictment “ necessarily implies ” mens rea, indictment is not fatal).

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.3 Enter, this the ___ day of Mar ch, 1997.

__________________________________ DAVID G. HAYES, JUDG E

__________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ PAUL G. SUMMERS, JUD GE