FILED

April 26, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY 1999 SESSION

 STATE OF TENNESSEE, )

) C.C.A. NO. 02C01-9805-CC-00155

Appellee, )

) HAYWOOD COUNTY

VS. )

) HON. DICK JERMAN, JR.,

HOWARD KAREEM ATKINS ) JUDGE

alias “RED” )

)

Appellant. ) (Sale of Cocaine)

FOR THE APPELLANT: FOR THE APPELLEE:

C. MICHAEL ROBBINS JOHN KNOX WALKUP

46 North Third St., Suite 719 Attorney General & Reporter

Memphis, TN 38103

ELIZABETH T. RYAN

Asst. Attorney General

John Sevier Bldg.

425 Fifth Ave., North 

Nashville, TN 37243-0493

CLAYBURN L. PEEPLES

District Attorney General

LARRY HARDISTER

-andBRYAN FULLER

Asst. District Attorneys General

109 East First St.

Trenton, TN 38382

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY,

Judge
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O P I N I O N

The defendant was convicted by a jury of selling .5 grams or more of

cocaine and sentenced to serve eight years in the Tennessee Department of Correction.

He now appeals, challenging the sufficiency of the indictment. Finding no merit to his

arguments, we affirm.

Tennessee Code Annotated § 39-17-417 prohibits a defendant from

knowingly selling a controlled substance. T.C.A. § 39-17-417(a)(3)(Supp. 1998). “[I]f the

amount involved is point five (.5) grams or more 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 defendant “did

unlawfully sell a controlled substance, to wit: COCAINE, (over .5 grams), a schedule II

controlled substance, as classified in Section 39-17-408 . . . in violation 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 fails 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 charged offense. See Hill, 954 S.W.2d at 726, 729. Thus,

according to the defendant, the indictment in this case is insufficient because it omits the

term “knowingly” even though “knowingly” is specifically included in the statutory definition

of the charged offense. See § 39-17-417(a)(3).

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

1998), a recent Tennessee Supreme Court case interpreting Hill. In Ruff, the court

determined that where the culpable mental state is provided by a statute cited in the

indictment, the indictment will be sufficient so long as the requirements set out in Hill are

met, that is, (a) that the language provides the defendant with sufficient notice of the

crime charged, an adequate basis for entry of a proper judgment, and protection from

double jeopardy; (b) that the form of the indictment complies with T.C.A. § 40-13-202;

and (c) that the mental state can be logically inferred from the conduct alleged. Ruff, 978

S.W.2d at 99, 97. Here, each of these requirements is met. Thus, the defendant’s

argument fails.

The defendant also complains that the indictment charges him with selling

cocaine weighing .5 grams or more, but the evidence established only that he sold a

substance containing cocaine weighing .5 grams or more and it was not established how

much the pure cocaine weighed. The defendant labels this as a sufficiency of the

evidence issue. This is not a sufficiency of the evidence issue because in order to

establish a Class B felony under § 39-17-417(c), the State need not prove that the pure

cocaine in the contraband substance weighed .5 grams or more, so long as the 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) required it to prove, that is, that the substance containing cocaine that

was sold by the defendant weighed .5 grams or more.

The defendant’s true point of contention is that the 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 to
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the accused of the crime charged. Moreover, the indictment complies with the

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. WOODALL, Judge

_________________________________

JAMES C. BEASLEY, SR., Special Judge