# Lowe v. State > Court of Criminal Appeals of Tennessee · December 1, 2010 URL: https://www.frixlaw.com/law-library/cases/1084339 ## Case - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** December 1, 2010 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1084339 ## Opinion text 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 2 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 3 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1084339. Public record. Not legal advice.