# FILED
April 26, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1999 SESSION

STATE OF TEN NESSEE, ) ) C.C.A. NO. 02C 01-9805-CC-00155 Appellee, ) ) HAYWOOD COUNTY VS. ) ) HON. DICK JERMA N, JR., HOWARD KAREEM A TKINS ) JUDGE alias “RED” ) ) Appellant. ) (Sale of Cocaine)

FOR THE APPE LLANT: FOR THE APPELLEE:
C. MICHAEL ROBBINS JOHN KNOX WALKUP 46 North Third St., Suite 719 Attorney General & Repor ter Memphis, TN 38103 ELI ZABE TH T. RYAN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 CLAYBURN

L. PEEPLES District Attorney General LARRY HA

RDISTER-andBRYAN FU LLER Asst. District Attor

neys General 109 East First St. Trenton, TN 38382
OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The defendant was convicted by a jury of selling .5

grams or more o f cocaine and sentenced to serve eight years in the Tennessee Department of Correction

. He now appeals, challengi ng the sufficiency of the indict ment. Finding no merit to his arguments, we affirm.

Tennessee Code Annotated § 39-17-417 prohibi ts a defendant from knowingly

selling a controlled

substance. T.C.A. § 39-17-417(a)(3)(Supp. 1 998). “[I]f the amount involved is point five (.5) grams or mor e of any substance containing cocaine” then the offense is a Class B felony. T.C.A. § 39-17-417( c)(1)(Supp. 1998). The indictment

filed against the defendant states, in pertinent part, that the defe ndant “did unlawfullysell a controlled substance, to wit: COCAINE , (over .5 grams), a schedule II controlled substance, as classified in Section 39-17-408 . . . in v iolation of T.C.A. 39-17- 417.”

The defendant relies upon State v. Hill , 954 S.W.2d 725 (Tenn. 1997), to argue that the indictment is insufficient because it f ails to allege that the defendant acted knowingly. Specifically, the defendant points to language in Hill that implies the mens rea element of a crime should be alleged in an indictment when it is specifically included in the statutory definition of the char ged offense. See Hill , 954 S.W.2d at 726, 729. T hus, according to the defendant, the indictment in this case is insufficient because it omits the term “knowingly”

even though “knowi ngly” is specific ally include d in th e statutory definition of the charged offense. See § 39-17-417(a)(3).

The defe ndant’s argument neglects Ruff v. State , 978 S.W.2d 95 (Tenn.3

1998), a recent Tenne ssee Supreme Co urt case interpre ting Hill . In Ruf f , the court de termined that where the culpable menta l state is provided by a statute cited in th e indictment, the indictment will be sufficient so long as the req uirements set out in Hill are met, that is, ( a) tha t the language provid es the defendant with sufficient noti ce of the crimecharged, an adequate basis for entr y of a prop er judgment, and protection from double jeopardy; (b) that the form of the indictment complies wi th T.C.A. § 40-13-202; and (c) that the mental state can be logically inferr ed from the conduct alleged. Ruff , 978 S.W.2d at 99, 97. Here, each of these req uirements is met. Thus, the defen dant’s argument fails.

The defendant also complains that the indictment charges him w ith selling cocaine weighing .5 gr ams or more, b ut the evidence established only that he sold a substance containing cocaine w eighing .5 grams or

more and it was

not established how much the pure cocaine weig hed. The defe ndant labels this as a sufficienc y of the
e vidence issue. This is not a sufficienc y of the evidence issue bec ause in order t o establish a Class B felony under § 39- 17-417(c), the State need not prove that the pure cocaine in the contraband substance wei ghed .5 grams or more, so long asthe weight of the cocaine combined with the other substances totaled .5 grams or more. See State
v. Alcorn , 741 S.W.2d 135, 138 (Tenn. Crim. App. 1987). Thus, the State proved what § 39-17-417(c)(1) req uired it to prove, that is, that the substance containing co caine that was sold by the defendant w eighed .5 grams or more.

The defendant’s true point of contention i s thatthe indictment is insufficient because it alleges he sold cocaine weighing .5 grams or more, rather than a substance containing cocaine weighing .5 grams or more, as § 39- 17- 417(c)(1) provides.The indictment, however, complies with constitutional protections, including that of notice to4

the accused of the crime charged. Moreover, the indictment complies withth e requirements

delineated in § 40-13-202. Thus, it is sufficient to support the defendant’s conviction.
Finding no merit to the defendant’s arguments , his conviction and sentence are affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

_________________________________ THOMAS T. W OODALL, Judge

_________________________________ JAMES C. BEASLE Y, SR., Special Jud ge