IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
SEPTEMBER SESSION, 1997 FILED
October 1, 1997
Cecil Crowson, Jr.
KENNETH LOWE, ) Appellate C ourt Clerk
) No. 03C01-9612-CR-00467
Appellant )
) JOHNSON COUNTY
vs. )
) Hon. Lynn W. Brown, Judge
HOWARD CARLTON, )
WARDEN, and STATE OF ) (Writ of Habeas Corpus)
TENNESSEE, )
)
Appellee )
For the Appellant: For the Appellee:
Kenneth Lowe, Pro Se Charles W. Burson
212010 NECC Attorney General and Reporter
P. O. Box 5000
Mountain City, TN 37683-5000
Michael J. Fahey, II
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
(AT TRIAL AND ON APPEAL)
OPINION FILED:
AFFIRMED PURSUANT TO RULE 20
David G. Hayes
Judge
OPINION
The appellant, Kenneth Lowe, appeals the trial court’s dismissal of his pro
se petition for writ of habeas corpus relief. In September of 1992, the appellant
was convicted by a Bradley County jury of the offenses of attempt to commit
rape and aggravated rape and was subsequently sentenced to an effective
sentence of fifteen years imprisonment. He is currently confined at the
Northeast Correctional Center in Johnson County. The appellant filed the instant
petition alleging that the judgments entered against him are void because the
indictment failed to allege the mens rea of the offenses charged. The trial court
dismissed the petition on the basis that allegations concerning the sufficiency of
the indictment are not the proper subject of habeas corpus relief. We agree with
this ruling. 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); Barber v.
State, No. 01C01-9408-CR-00281 (Tenn. Crim. App. at Nashville, Feb. 23,
1995). Accordingly, we affirm the trial court's dismissal of the petition.
Moreover, upon further review, we find the substance of the appellant's
claim without merit. In order for an indictment to satisfy both constitutional and
statutory guidelines, it must contain the material elements of the offense and
must sufficiently apprise the accused of the offense he is called upon to defend.
State v. Tate, 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995); see also Tenn.
Code Ann. §40-13-202 (1990); State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim.
App. 1992). As previously stated by panels of this court, no requisite mental
state is included in the definitions of the offenses of rape and aggravated rape.
See Tenn. Code Ann. § 39-13-502; -503. When the legislature fails to define a
specific mental state in the definition of an offense, proof of either intent,
knowledge, or recklessness suffices to establish the culpable mental state.
Tenn. Code Ann. § 39-11-301(c)(1991). Accordingly, the accused's mental
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state is not a material element of the offense and need not be included in the
indictment. State v. Dison, No. 03C01-9602-CC-00051 (Tenn. Crim. App. at
Knoxville, Jan. 31, 1997). Other panels of this court have upheld the validity of
indictments under similar challenges. See, e.g., Slagle v. State, No. 03C01-
9704-CR-00145 (Tenn. Crim. App. at Knoxville, June 25, 1997); State v. Vann,
No. 03C01-9602-CC-00066 (Tenn. Crim. App. at Knoxville, June 10, 1997);
State v. James, No. 01C01-9601-CR-00016 (Tenn. Crim. App. at Nashville, Mar.
27, 1997); State v. Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim. App. at
Knoxville, Feb. 11, 1997).
Contrary to the appellant's assertions, the allegations in the indictment
sufficiently apprise the accused of the offenses of attempt to commit rape and
aggravated rape. Consequently, we find the indictment valid. The trial court's
dismissal of the appellant's petition for writ of habeas corpus is affirmed pursuant
to Rule 20, Rules of the Court of Criminal Appeals.
___________________________________
DAVID G. HAYES, Judge
CONCUR:
_______________________________
JOHN H. PEAY, Judge
_______________________________
WILLIAM M. BARKER, Judge
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