IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
FEBRUARY 1999 SESSION
April 26, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
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
-and-
BRYAN FULLER
Asst. District Attorneys General
109 East First St.
Trenton, TN 38382
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
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.
2
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
3
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. W OODALL, Judge
_________________________________
JAMES C. BEASLEY, SR., Special Judge
4