Than Those Articulated By The Majority. The Majority Relies Upon State v. Marshall ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
DECEMBER SESSION, 1996
FILED
June 10, 1997
STATE OF TENNESSEE, )
) No. 03C01-9602-CC-00066 Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee )
) McMINN COUNTY
vs. )
) Hon. R. STEVEN BEBB, Judge
GUSSIE WILLIS VANN, )
) (Felony Murder - Death Penalty;
Appellant ) Incest)
SEPARATE CONCURRING
I concur in the result reached by the majority in affirming all convictions
and the appellant's sentence of death. I write separately only to address the
issue of whether the indictment for incest is fatally defective for failing to include
the requisite mens rea. I agree that the indictment is valid, but for reasons other
than those articulated by the majority. The majority relies upon State v. Marshall,
870 S.W.2d 532, 537 (Tenn. Crim. App. 1993). In Marshall, this court held that
the mens rea is an essential element of an offense and, therefore, must be
included in the indictment. Id. at 537. This court further held that, if the mens
rea is implicit in the allegations contained in the indictment, the indictment is
adequate. Id. at 538. The majority applies this rationale, concluding that the
mental state of "knowingly" is "necessarily implied by the allegations in the
indictment."
However, as noted by the majority, the legislature did not include the
requisite mental state in the definition of the offense of incest, permitting the
application of any one of three mental states set forth in Tenn. Code Ann. § 39-
11-301(c). I would simply adhere to this court's position in State v. Dison, No.
03C01-9602-CC-00051 (Tenn. Crim. App. at Knoxville, Jan. 31, 1997), in which
we held that, under these circumstances, the accused's culpable mental state is
not an essential element of the offense and need not be alleged in the
indictment.
____________________________________
DAVID G. HAYES, Judge
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