IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1998 SESSION
FILED
November 24, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CC-00379
)
Appellee, ) HARDEMAN COUNTY
)
V. )
) HON. JON KERRY BLACKWOOD,
TYRONE SAIN, ) JUDGE
)
Appe llant. ) (EVADIN G ARRE ST)
FOR THE APPELLANT: FOR THE APPELLEE:
STEVEN E. FARESE JOHN KNOX WALKUP
P.O. Box 98 Attorney General & Reporter
Ashland, MS 38603
PETE R M. C OUG HLAN
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
ELIZABETH T. RICE
District Attorney General
JERRY W. NORWOOD
Assistant District Attorney General
25th Judicial District
Hardeman County Courthouse
Bolivar, TN 38008-2359
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defenda nt, Tyrone Sain, was convicted in the Circuit Court of
Hardeman County of the offense of evading arrest, in violation of Tennessee Code
Annotated section 39-16-603. He appealed as of right and pre sents two (2) issues
for review: (1) The count of the indictment charging the offense of evading arrest is
void because it alleged a mens rea of “knowingly” when the statute requires a mens
rea of “intentionally;” and (2) If the indictment is void and therefore must be
dismissed, future prosecution of Defendant for this particular offense is barred by the
applic able statute of limitations. After careful review of this record, and the
argum ents of the State an d Defe ndant, w e affirm the judgm ent of the tria l court.
Defendant was ch arged in a fou r (4) cou nt indic tmen t as follo ws:
Count 1, possession of cocaine with intent to manufacture, deliver, or sell, a Class
B felony; count 2, evading arrest in violation of Tennessee Code Annotated section
39-16-603; count 3, speeding in violation of Tennessee Code Annotated section 55-
8-152; and co unt 4, failure to stop his vehicle at a stop sign in violation of Tennessee
Code Annotated section 55-8-149. In the first two (2) counts, Ded rick K. McGu ire
was also cha rged as a co-de fendan t. McGu ire is not a party to th is app eal.
Following a jury trial, Defe ndant w as foun d guilty of co unts 2 and 4 and was
acquitted of counts 1 and 3 . This appeal pertains only to the conviction for evading
arrest.
The record on appe al is very spa rse. It conta ins only the docum ents
filed with the trial court clerk and a transcript of a hearing in the trial court. The
transcript conta ins on ly the post-trial hearing on the motion to dismiss. No proof was
2
taken at this hearing. There is no transcript in the record of the trial or any pretrial
hearing s, if any were held.
According to the indictm ent, the offense was alleged to have occurred
on December 14, 1993. This was prior to the 1995 amendment of the statute setting
forth the offense of evading arrest, Tennessee Code Annotated section 39-16-603.
Therefore, at the time of the offense, the applicable statute read as follows:
39-16-603. Evading a rrest. - (a) It is unlawful for any pe rson to
intentionally flee from anyone the person knows to be a law
enforcement officer and the person:
(1) Knows th e officer is attempting to arrest the perso n; or
(2) Has been arrested.
(b) It is a defense to prosecution under this section that the
attem pted a rrest w as un lawful.
(c) A violation of this section is a C lass A misd emean or.
Tenn. C ode Ann . § 39-16-603 (1991) (em phasis add ed).
Count 2 of the indictment alleges as follows:
And the Grand Jurors on th eir oath afores aid furth er pres ent tha t in
Hardeman County on or about the 14 th day of Dece mber, 199 3, before
the finding of this ind ictme nt, the s aid DEDRICK K. MCGUIRE AND
TYRONE SAIN did unlawfully and knowingly flee from Sheriff Delphus
Hicks and D eputy Doug Brow n of the Hard ema n Cou nty Sh eriff’s
Depa rtment, known to DEDRICK K. MCGUIRE AND TYRONE SAIN
to be a law enforcement officers [sic] from effecting the arrest of the
said DEDR ICK K . MCG UIRE AND T YRO NE S AIN, in violation of
T.C.A. 39-16-603, against the peace and dignity of the State of
Tennessee.
From the judgment, it appears that the jury trial was held January 22,
1997. There is nothing in the record to indicate that Defendant brought to the
3
attention of the trial court prior to trial by motion or otherwise his argument that the
incorrect mens rea was alleg ed in cou nt 2 of the in dictme nt. However, on February
3, 1997, less than two (2) weeks after the jury trial, Defendant’s counsel filed (1) a
motion to dismiss count 2 of the indictment, and (2) a brief in support of the motion
to dismiss. The basis for the motion to dism iss was that count 2 of the indictment
failed to allege an essential element of the offense, i.e. the mens rea of
“intentionally.”
The precise issue presented by Defendant in this appeal can be set
forth as follows: “If a criminal statute re quires a me ntal culpability of ‘intentionally’
and the indictment alleges ‘knowing’ mental culpability, does this render the
indictment void becau se it fails to state an offe nse? ” Our re searc h indic ates th at this
is an issue of first impre ssion in T ennes see. In State v. Hill, 954 S.W.2d 725 (Tenn.
1997), our supreme court did not address the spec ific issue raised in this ap peal, but
did determine that the required mental culpability may be inferred from the nature of
criminal conduct alleged in the indictment when the criminal offense at issue neither
expre ssly requires nor plainly dispenses with a requirement for a culpable mental
state. Id. at 729.
In discussing Tennessee Code Annotated section 39-11-302, which
defines the culpable mental states, this court in State v. Crowe noted the following:
The statutory scheme creates a hierarchy, and, while each of the four
mental elements are unique, [intentional, knowing, reckless, and
criminal negligence] the lesser levels of culpability are included within
the greater.
914 S.W .2d 933 , 937 (T enn. 19 95).
4
W hile proof of intentional culpability necessarily includes proof of
knowing culpa bility, the c onver se is not nece ssarily true. See Id. at 937, n. 2. There
is, therefore, a defect in an indictment wherein a lesser level of me ntal culpa bility
than that required by statute is alleged in the indictment. Review of this issue
requires us to first determine whether the objection to the defective indictment must
be raised pre-trial. Rule 12(b) of the Tennessee Rules of Criminal Procedure
provides in part as follows:
(b) Pretrial Motions. Any defense, objection, or request which
is capa ble of determination without the trial of the general issue may be
raised before trial b y motion . Motio ns may be written or oral at the
discretion of the judg e. The following must be raised p rior to trial:
(2) Defenses and objection s base d on de fects in the indictme nt,
presentment or information (other than that it fails to show jurisdiction
in the court or to charge an offense which objections shall be noticed
by the co urt during the pen dency o f the proce edings ).
Tenn. R . Crim. P. 12(b) a nd (2) (emp hasis adde d).
The indictmen t allege d “kno wing” c ondu ct by the Defe ndan t. W hile
proof of this conduct by the Defe ndan t would not nece ssarily prove that Defendant
also acted intentionally, it is not foreclosed that the “kno wing” a ct by D efend ant in
this particular c ase co uld not ha ve also be en don e “intention ally.” The transcript of
the trial is no t includ ed in the record and we therefore are unable to review the proof
presented at trial. Defendant d id not file a motion for new trial, but only filed the
motion to dismiss post-trial as discussed earlier in this op inion. In this ap peal,
Defendant does not challenge the sufficiency of the evide nce to sustain a conviction.
The trial court entered a sentencing order, an order overruling the motion to dismiss,
and signed the judgment for the conviction of evading arrest. We presume that the
5
trial court approved the verdict returned by the jury. See State v. Braden, 867
S.W.2d 750 (Tenn. Crim. App. 1993). We therefore presume that there was
sufficient evidence to support the conviction for evading arrest, including evidence
that Defend ant acted with “inten tional” mental cu lpability.
Since proof of “knowing” conduct does not nece ssarily disprove
“intentio nal” conduct, the defect in the indictment is not of the character which would
be class ified as a d efect that fa ils to charge an offens e, and the refore, a motion to
dismiss based upon the alleged defect in this indictment must be bro ught p re-trial,
or it is waived . Tenn. R . Crim. P . 12(f).
W e also note that a recent opinion of our supreme court lends sup port
to the conclusion reached in this case. In Dykes v. Compton, _____ S.W.2d _____,
No. 02-S-01-9711-CC-00105, Lake County (Tenn., Nashville, Sept. 21, 1998) the
court addre ssed the issu e of wh ether a challe nge to an indictment may be
addressed through a petition for writ of habeas corpus, and if it could be, whether the
appe llant in that case wa s entitled to the relief he sou ght. The su preme co urt
concluded that a cha llenge to an indictment may be addressed in a habeas corpus
petition. Howe ver, the co urt further held that the appellant was not entitled to the
relief he sought in that case. Specifically, the appellant argued that the indictment
which led to his conviction for aggravated rape was void because it failed to make
any reference to a culpable mental state. In holding that the indictment in that case
satisfied the requ iremen ts of Hill, 954 S.W.2d 725, the supreme court state d in part,
“[a]pplying Hill, we find that the langua ge of the a bove ind ictmen t, as well as the
specific reference to the statute allegedly violated, provided the app ellant with
6
amp le notice of the offense charged.” Dykes, _____ S.W.2d _____, No. 02-S-01-
9711-CC-00105, slip op. at 6. The court went on to say the following:
In conclu sion, we w ish to em phas ize once again the fact that the
Court has moved away from the strict pleading requirements of
common law. As we noted in Hill, ‘the purpose for the traditionally
strict pleading requirement was the existence of common law offenses
whose elements were not easily ascertained by reference to a statute.
Such c omm on law o ffenses n o longe r exist.’
Id. at 6-7 (em phasis a dded) (c itation om itted).
In the case sub judice, there was a specific reference in the indictment
to the statute allegedly violated. The element of “intentio nal” culpable menta l state
was easily ascertained by reference to this statute. We conclude that the reasoning
contained in Dykes supports our holding that the motion to dismiss based upon the
allege d defe ct in this in dictm ent is w aived s ince it w as no t broug ht pretr ial.
Based upon the foregoing, we conclude that Defendant’s first issue is
not well taken. Accordingly, the second issue presented by Defendant is moot. The
judgment of the trial court is therefore affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
(See sepa rate concurring opinion)
JOHN H. PEAY, Judge
___________________________________
PAUL G. SUMMERS , Judge
7