Bruce Little v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1998 SESSION
December 31, 1998
Cecil W. Crowson
Appellate Court Clerk
BRUCE EDWARD LITTLE, )
) C.C.A. NO. 01C01-9710-CR-00461
Appellant, )
) DAVIDSON COUNTY
VS. )
) HON. WALTER C. KURTZ,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
DISSENT
I respectfully disagree with the majority’s conclusion that all three counts of
the indictment on which the defendant was found guilty provide sufficient facts from which
the culpable mental state of “knowingly” can be inferred. The language in count four of
the indictment, which alleged possession of cocaine with the intent to deliver, was
sufficient because “[b]y alleging that the defendant possessed cocaine which he intended
to sell, the indictment necessarily implied that it was a knowing possession.” State v.
Marshall, 870 S.W.2d 532, 538 (Tenn. Crim. App. 1993); see T.C.A. § 39-11-301(a)(2)
(“intentional” includes “knowing”). Likewise, the language in count one, which charged
the defendant with conspiring to deliver cocaine, was sufficient because logically, one can
only knowingly or intentionally conspire. It is the language in count two, which charged
the defendant with delivery of cocaine, I find insufficient.
As I noted in my dissent in State v. Tyrone Sain, 02C01-9710-CC-00379,
Hardeman County (Tenn. Crim. App. filed November 24, 1998, at Jackson), the case of
Dykes v. Compton, ___ S.W.2d ___, No. 02S01-9711-CC-00105 (Tenn. September 21,
1998), involved an offense for which the culpable mental state was not specified in the
violated statute of count two, which distinguishes it from the instant case. Because the
charged statute in count two specified a particular mental state, i.e., “knowing,” merely
referencing the statute in the indictment will generally not suffice in terms of alleging all
essential elements, including scienter. Marshall, 870 S.W.2d at 537; State v. Brandon
Wilson, No. 03C01-9609-CC-00352, Blount County (Tenn. Crim. App. filed September
1, 1998, at Knoxville). Thus, unlike the majority in this case, I do not find support in
Dykes and would instead conclude that count two of the indictment failed to sufficiently
allege scienter, an essential element of delivery of cocaine, which is included in the
statute. As such, I would reverse and dismiss the conviction on count two.
_______________________________
JOHN H. PEAY, Judge
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