914 S.W.2d 933, 937 (Tenn. 1995), the indictment in this case omits an essential
element of the offense of evading arrest. See State v. Brandon Wilson, No. 03C01-9609-
CC-00352, Blount County (Tenn. Crim. App. filed September 1, 1998, at
Knoxville)(finding that the culpable mental state of “knowing” expressly provided for in
T.C.A. § 39-17-417(a) is an essential element of the crimes proscribed by that statute).
Where an indictment fails to charge an essential element of an offense, the
error cannot be waived. Id. “In that circumstance, no offense has been charged. In
consequence, subsequent proceedings are a nullity.” State v. Perkinson,
867 S.W.2d 1,
6 (Tenn. Crim. App. 1992); see Tenn. R. Crim. Proc. 12(b) (the error of failing to charge
an offense cannot be waived); State v. Trusty,
919 S.W.2d 305, 310 (Tenn. 1996)(a
conviction based upon an indictment that fails to charge an offense is a nullity).
Accordingly, the defendant’s failure to challenge the indictment in a pretrial motion does
not preclude us from reviewing this issue on appeal. Tenn. R. Crim. Proc. 12(b); State
v. Brandon Wilson, No. 03C01-9609-CC-00352.
On the merits, the defendant is entitled to relief because the indictment is
fatally defective. In State v. Hill,
954 S.W.2d 725 (Tenn. 1997), the Tennessee Supreme
Court addressed the validity of indictments that failed to allege the requisite mental state.
The Supreme Court concluded that for offenses “which neither expressly require nor
plainly dispense with the requirement for a culpable mental state,” an indictment that fails
to allege a mental state might nonetheless be sufficient, provided certain criteria are met.
Id. at 726-27. But the Supreme Court also noted, “In modern practice, it is unnecessary
to charge guilty knowledge unless it is included in the statutory definition of the offense.”
Id. at 729 (emphasis added). In other words, if a criminal statute specifically requires a
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certain culpable mental state, that culpable mental state must be included in the language
of the indictment. Applying this principle to the instant case, because the offense of
evading arrest specifically requires proof of the culpable mental state of “intentionally,”
see T.C.A. § 39-16-603(a) (1991), the indictment in this case should have included the
word “intentionally,” or at least, words of similar import. See State v. Brandon Wilson, No.
03C01-9609-CC-00352; see also Finn v. United States,
256 F.2d 304, 306 (4th Cir.
1958)(stating, “Where willfulness or knowledge is made an element of the crime, the
statutory requirement is not to be ignored. The charge must either include these terms,
or words of similar import.”).
The indictment in this case alleged the culpable mental state of “knowing,”
but this is not sufficient. “Intentional” conduct signifies a greater degree of culpability than
“knowing” conduct. See, e.g., Crowe, 914 S.W.2d at 937. As the majority recognizes,
proof of “knowing” culpability does not necessarily include proof of “intentional” culpability,
even though “intentional” necessarily includes “knowing.” Id. at 937 n.2. But the majority
seems to make an exception to this rule, noting that because the proof at trial may have
proven “intentional” culpability, it matters not that the indictment alleged only “knowing”
culpability. In other words, the majority seems to say that it is unnecessary for the word
“knowing” to include “intentional” culpability so long as there is the possibility that
intentional conduct may have ultimately been proven at trial. This reasoning is fatally
flawed, however, because the proof at trial has no bearing on whether the indictment is
sufficient. If the indictment is insufficient---and here, the indictment is because it fails to
allege the essential element of “intentional” culpability---any proceedings that follow are
a nullity. Trusty, 919 S.W.2d at 310; Perkinson, 867 S.W.2d at 6. This means that
whatever happened at trial in this case is irrelevant because the trial itself becomes a
nullity if the indictment is found to be fatally insufficient. Thus, in this case, because it
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cannot logically be inferred from the language of the indictment (which alleges the
defendant acted “knowingly”) that the defendant necessarily acted “intentionally” (which
T.C.A. § 39-16-603(a) required the State to prove in this case), the indictment is fatally
insufficient. See State v. Nathaniel White, No. 03C01-9408-CR-00277, Sullivan County
(Tenn. Crim. App. filed June 7, 1995, at Knoxville)(holding invalid an indictment alleging
“unlawful” behavior instead of the requisite mental element of “knowing” because “[o]ne
cannot logically infer that an accused acting 870 S.W.2d 532, 537 (Tenn. 1993); State v. Brandon Wilson, No. 03C01-9609-CC-
00352. Thus, unlike the majority, I would not find support in Dykes under the facts of the
instant case.
Even if, however, the majority is correct in holding that the defendant has
waived his right to challenge the defective indictment in this case and thus, in implying
that mental states may be freely substituted for one another, I would find the indictment
in this case fatally defective on other grounds. The relevant count of the indictment
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provides in pertinent part that “on or about the 14th day of December 1993 . . . [the
defendant] did unlawfully and knowingly flee from Sheriff Delphus Hicks and Deputy Doug
Brown . . . known to [the defendant] to be . . . law enforcement officers from [sic] effecting
[his] arrest.” The statute which the defendant was thereby accused of violating provides
as follows: “It is unlawful for any person to intentionally flee from anyone the person
knows to be a law enforcement officer and the person: (1) Knows the officer is
attempting to arrest the person; or (2) Has been arrested.” T.C.A. § 39-16-603(a) (1991).
Thus, the crime of evading arrest consists of the following essential elements: (1) the
defendant intentionally flees from persons he knows to be law enforcement officers; and
(2) the defendant knows the officers are attempting to arrest him or they already have
arrested him. Id. It is not a crime under this statute for defendants to intentionally flee
police officers because, for instance, they do not want to be questioned, they simply
dislike or fear officers, or they enjoy taunting them. The crime is committed when
defendants flee in a deliberate attempt to escape arrest. Of course, such deliberate
conduct requires that the defendants know an arrest is being attempted.
The indictment in the instant case makes absolutely no reference to the
defendant's awareness that the officers were attempting to arrest him. Nor is it possible
to logically infer the missing element from the words “from effecting [the defendant's]
arrest.” Cf. Hill, 954 S.W.2d at 727 (holding an indictment containing no reference to the
mens rea element valid if it otherwise meets constitutional and statutory requirements and
“the mental state can be logically inferred from the conduct alleged”). Nor is this element
necessarily implied by the remaining allegations. Cf. Marshall, 870 S.W.2d at 538
(holding an indictment valid where a missing element of the offense is “necessarily
implied” from the allegations made). Thus, while we do not doubt that the police officers
were in fact attempting to arrest the defendant, there is no language in the indictment
5
which establishes that the defendant knew or was aware of the officers' intent. As set
forth above, the defendant may have been knowingly running from persons he knew to
be police officers without knowing that they were trying to arrest him. Given the plain
language of the statute, this omission is fatal.
In sum, because the indictment charging evading arrest fails to allege the
essential element that the defendant knew the officers were trying to arrest him, it cannot
support his conviction. Moreover, contrary to the majority’s position, I would conclude
that the indictment’s failure to allege the statutorily required mens rea of “intentionally” is
a fatal defect that has not been waived. Accordingly, I would reverse the defendant's
conviction for evading arrest and dismiss the charge.
_______________________________
JOHN H. PEAY, Judge
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