FILED

October 1, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

SEPTEMBER SESSION, 1997

KENNETH LOWE, )

) No. 03C01-9612-CR-00467

Appellant )

) JOHNSON COUNTY

vs. )

) Hon. Lynn W. Brown, Judge

HOWARD CARLTON, )

WARDEN, and STATE OF ) (Writ of Habeas Corpus)

TENNESSEE, )

)

Appellee )

For the Appellant: For the Appellee:

Kenneth Lowe, Pro Se Charles W. Burson

212010 NECC Attorney General and Reporter

P. O. Box 5000

Mountain City, TN 37683-5000

Michael J. Fahey, II

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

(AT TRIAL AND ON APPEAL)

OPINION FILED: 

AFFIRMED PURSUANT TO RULE 20

David G. Hayes

Judge
2

OPINION

The appellant, Kenneth Lowe, appeals the trial court’s dismissal of his pro

se petition for writ of habeas corpus relief. In September of 1992, the appellant

was convicted by a Bradley County jury of the offenses of attempt to commit

rape and aggravated rape and was subsequently sentenced to an effective

sentence of fifteen years imprisonment. He is currently confined at the

Northeast Correctional Center in Johnson County. The appellant filed the instant

petition alleging that the judgments entered against him are void because the

indictment failed to allege the mens rea of the offenses charged. The trial court

dismissed the petition on the basis that allegations concerning the sufficiency of

the indictment are not the proper subject of habeas corpus relief. We agree with

this ruling. 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 previously stated by panels of this court, no requisite mental

state is included in the definitions of the offenses of rape and aggravated rape. 

See Tenn. Code Ann. § 39-13-502; -503. 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 accused's mental
3

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). 

Contrary to the appellant's assertions, the allegations in the indictment

sufficiently apprise the accused of the offenses of attempt to commit rape and

aggravated 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:

_______________________________

JOHN H. PEAY, Judge

_______________________________

WILLIAM M. BARKER, Judge