1 Upon motion of the st ate, and for

good cause shown, the state’s motion to l ate-fi le it s motion for affirmance pursuant

to Rule 20 i s hereby grant ed. IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON
DAVID CROSS, ) ) Petitioner, ) C. C. A. NO. 02C01-9702-CC-00072 ) vs. ) LAUDERDALE C OUNTY ) ROBERT CONLEY, WARDEN, ) No. 4879 ) 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 under Rule 20, Rules of the Court of Criminal Appeals. 1 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 February 20, 1997, and the petitioner's bri ef was filed on March 11, 1997. The petitioner was originally indicted on one count of rape of a child in July 1994, and was subsequently found guilty of the same in December 1994. In the prese nt appeal, the petitioner, relying in part upon State v. Roger Dale Hill , No. 01C01-9508-CC-00 267 (Tenn. Cr

im. App. June 20, 1996), contends the ju dgment entered against him i s void because the indictment failed to allege t he 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 essence, that all egations concerning the sufficiency of an indictment are not the proper subject for habeas corpus relief. It is well established that challenges 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.2

1969). A panel of this Court r ecently held the same in a c apital case. Barber v. State , No. 01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 19 95).

Nonetheless, we have considered the substance of the petition er’s claim and determine it to be witho ut merit. Rape of a child is defined as “the unlawful sex ual penetration of a victim by the defendant . . . if such victi m is less than thirteen (13 ) years of age.” T.C.A. § 39- 13-522 (1996 supp.). The indict ment at issue before us charged that the petitioner “did commit rape of a child by having unlawful sex

ual penetration of [the victim], a child less than thirteen (13) years of age, there by
co mm it ti ngth e offe ns e of R AP E O F A CH IL D, in vi ol at io n of T. C. A. 39 -1 3- 52 2( a) .” We find that the indictment at issue here suff iciently apprised the petitioner of the offense charged, and is therefore v alid.

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.3 Enter, this the ___ day of May , 1997.

__________________________________ PAUL G. SUMMERS, JUD GE

__________________________________ DAVID G. HAYES, JUDG E

__________________________________ JOE G. RILEY, JUDGE