# FILED
April 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

GREGORY TURNER, ) ) Petitioner, ) C. C. A. NO. 02C01-9701-CC-00025 ) vs. ) LAUDERDALE C OUNTY ) JIMMY HARRISON, WARDEN, ) No. 4869 ) 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 January 17 , 1997, and the petitioner's bri ef was filed on February 18, 1997. The petitioner was originally indi cted on one count of aggravat ed rape in January 1994, and w as subsequently convicted of the same. In the present appeal, th e petitioner, relying in part upon State v. Roger Dale Hill , No. 01C01-9508-CC-00267 ( Tenn. Crim. App. June 20, 1996), contends the judgment ent ered against him is v

oid because the indictment 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 this is n ot an appropriate matter for habeas cor pus relief. It is wel l established that challeng es to the sufficiency of an indictment cannot be tested in a habeas corpus proc eeding. 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 pane l of this Cou rt recently held the s ame 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. Aggravat ed rape is defined as the “unlaw ful sexual penetration of a victim by the defendant” accompanied by cert ain enumerated aggravating ci rcumstances, including that the “defendant causes bodily injury to the victim.” T.C.A. § 39-13-502 (1996 supp.).

The indictment at issue before us charged that the petitioner did “unlawfully sexua lly penetrate and cause bodi ly injury to [the victim], in viol ation of T.C.A. 39-13-502.” We find that the indictment at i ssue here sufficiently appri sed the petitioner of the offenses charged, and is 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 indictment.

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.

Enter, this the ___ day of Apri l, 1997.3 __________________________________ PAUL G. SUMMERS, JUD GE

__________________________________ JOE B. JONES, PRESIDING JUDGE

__________________________________ DAVID G. HAYES, JUDG E