# 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

ROBERT PARISH, ) ) Petitioner, ) C. C. A. NO. 02C01-9612-CC-00452 ) vs. ) LAUDERDALE C OUNTY ) STATE OF TENN ESSEE, ) No. 4857 ) 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 12, 1996, and the petitioner's bri ef was filed on February 3, 1997. The petitioner was originally indi cted on one count aggrav ated sexual battery i n November 1994, and one count of statutory rape in July 1995. The petitioner pled guilty to the same in Janua ry 1996. In the present appeal, the peti tioner, relying i n part upon State v. Roger Dale Hill , No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996), cont ends the judgment entered against him is v oid because the indictments failed to allege the mens rea of the offense charged.

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 in effect that the indictments in this case were not defective. 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 pan el of this Court recently held the same in a capital
case. Barber v. State , No. 01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 199 5).2 Nonetheless, we have considered the substance of the petition er’s claim and determine it to be witho ut merit. Aggravat ed sexual battery is

defined as the “unlawful sexual contact with a victim by the defendant” accompanied by certain enumerated aggravating circumstances, includin g that the victim is less than thirteen (13) years old. T.C.A.§ 39-13-504 (1996 supp.). Stat utory rape is "sexual penetration of a victim by the defendant . . . when the victim is at least thirteen (13) but less than eighteen (18) years o

f age and the defendant is at least four ( 4) years older than the victim." T.C.A. § 39-13-506 (1996 supp.).

The indictments at issue before us charged that the petitioner did “unlawfully engag e in sexual contact as defined in T.C.A. § 39-13-501 with [the victim], a person less than thirteen ( 13) years of age, in v iolation of T.C.A. § 39-13-504,” and "did unlawfully sexually penetrate [the victim], a person of the age of fift een (15) years, the [defendant] being at least four ( 4) years older than [the victim], in viol ation of T.C.A. § 39-13-506." We find that the indictments at issue here sufficiently apprised the appellant of the offenses charged, and are 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 indictments.
For the reasons stated above, it is hereby ORDERED, pursuant to Rule3

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 Mar ch, 1997.

__________________________________ DAVID G. HAYES, JUDG E

__________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ PAUL G. SUMMERS, JUD GE