Opinion
C.C.A. No. 02C01-9710-CC-00379.
November 24, 1998.
APPEAL FROM HARDEMAN COUNTY, HON. JON KERRY BLACKWOOD, JUDGE, (Evading Arrest).
AFFIRMED
FOR THE APPELLANT:
STEVEN E. FARESE
FOR THE APPELLEE:
JOHN KNOX WALKUP, Attorney General Reporter, PETER M. COUGHLAN, Assistant Attorney General, ELIZABETH T. RICE, District Attorney General, JERRY W. NORWOOD, Assistant District Attorney General.
The Defendant, Tyrone Sain, was convicted in the Circuit Court of Hardeman County of the offense of evading arrest, in violation of Tennessee Code Annotated section 39-16-603. He appealed as of right and presents two (2) issues for review: (1) The count of the indictment charging the offense of evading arrest is void because it alleged a mens rea of "knowingly" when the statute requires a mens rea of "intentionally;" and (2) If the indictment is void and therefore must be dismissed, future prosecution of Defendant for this particular offense is barred by the applicable statute of limitations. After careful review of this record, and the arguments of the State and Defendant, we affirm the judgment of the trial court.
Defendant was charged in a four (4) count indictment as follows: Count 1, possession of cocaine with intent to manufacture, deliver, or sell, a Class B felony; count 2, evading arrest in violation of Tennessee Code Annotated section 39-16-603; count 3, speeding in violation of Tennessee Code Annotated section 55-8-152; and count 4, failure to stop his vehicle at a stop sign in violation of Tennessee Code Annotated section 55-8-149. In the first two (2) counts, Dedrick K. McGuire was also charged as a co-defendant. McGuire is not a party to this appeal. Following a jury trial, Defendant was found guilty of counts 2 and 4 and was acquitted of counts 1 and 3. This appeal pertains only to the conviction for evading arrest.
The record on appeal is very sparse. It contains only the documents filed with the trial court clerk and a transcript of a hearing in the trial court. The transcript contains only the post-trial hearing on the motion to dismiss. No proof was taken at this hearing. There is no transcript in the record of the trial or any pretrial hearings, if any were held.
According to the indictment, the offense was alleged to have occurred on December 14, 1993. This was prior to the 1995 amendment of the statute setting forth the offense of evading arrest, Tennessee Code Annotated section 39-16-603. Therefore, at the time of the offense, the applicable statute read as follows:
39-16-603. Evading arrest. — (a) 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.
(b) It is a defense to prosecution under this section that the attempted arrest was unlawful.
(c) A violation of this section is a Class A misdemeanor.
Tenn. Code Ann. § 39-16-603 (1991) (emphasis added).
Count 2 of the indictment alleges as follows:
And the Grand Jurors on their oath aforesaid further present that in Hardeman County on or about the 14th day of December, 1993, before the finding of this indictment, the said DEDRICK K. MCGUIRE AND TYRONE SAIN did unlawfully and knowingly flee from Sheriff Delphus Hicks and Deputy Doug Brown of the Hardeman County Sheriff's Department, known to DEDRICK K. MCGUIRE AND TYRONE SAIN to be a law enforcement officers [sic] from effecting the arrest of the said DEDRICK K. MCGUIRE AND TYRONE SAIN, in violation of T.C.A. 39-16-603, against the peace and dignity of the State of Tennessee.
From the judgment, it appears that the jury trial was held January 22, 1997. There is nothing in the record to indicate that Defendant brought to the attention of the trial court prior to trial by motion or otherwise his argument that the incorrectmens rea was alleged in count 2 of the indictment. However, on February 3, 1997, less than two (2) weeks after the jury trial, Defendant's counsel filed (1) a motion to dismiss count 2 of the indictment, and (2) a brief in support of the motion to dismiss. The basis for the motion to dismiss was that count 2 of the indictment failed to allege an essential element of the offense, i.e. the mens rea of "intentionally."
The precise issue presented by Defendant in this appeal can be set forth as follows: "If a criminal statute requires a mental culpability of `intentionally' and the indictment alleges `knowing' mental culpability, does this render the indictment void because it fails to state an offense?" Our research indicates that this is an issue of first impression in Tennessee. In State v. Hill, 954 S.W.2d 725 (Tenn. 1997), our supreme court did not address the specific issue raised in this appeal, but did determine that the required mental culpability may be inferred from the nature of criminal conduct alleged in the indictment when the criminal offense at issue neither expressly requires nor plainly dispenses with a requirement for a culpable mental state.Id. at 729.
In discussing Tennessee Code Annotated section 39-11-302, which defines the culpable mental states, this court inState v. Crowe noted the following:
The statutory scheme creates a hierarchy, and, while each of the four mental elements are unique, [intentional, knowing, reckless, and criminal negligence] the lesser levels of culpability are included within the greater.
914 S.W.2d 933, 937 (Tenn. 1995).
While proof of intentional culpability necessarily includes proof of knowing culpability, the converse is not necessarily true. See Id. at 937, n. 2. There is, therefore, a defect in an indictment wherein a lesser level of mental culpability than that required by statute is alleged in the indictment. Review of this issue requires us to first determine whether the objection to the defective indictment must be raised pre-trial. Rule 12(b) of the Tennessee Rules of Criminal Procedure provides in part as follows:
(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:
(2) Defenses and objections based on defects in the indictment, presentment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court during the pendency of the proceedings).
Tenn. R. Crim. P. 12(b) and (2) (emphasis added).
The indictment alleged "knowing" conduct by the Defendant. While proof of this conduct by the Defendant would notnecessarily prove that Defendant also acted intentionally, it is not foreclosed that the "knowing" act by Defendant in this particular case could not have also been done "intentionally." The transcript of the trial is not included in the record and we therefore are unable to review the proof presented at trial. Defendant did not file a motion for new trial, but only filed the motion to dismiss post-trial as discussed earlier in this opinion. In this appeal, Defendant does not challenge the sufficiency of the evidence to sustain a conviction. The trial court entered a sentencing order, an order overruling the motion to dismiss, and signed the judgment for the conviction of evading arrest. We presume that the trial court approved the verdict returned by the jury. See State v. Braden, 867 S.W.2d 750 (Tenn.Crim.App. 1993). We therefore presume that there was sufficient evidence to support the conviction for evading arrest, including evidence that Defendant acted with "intentional" mental culpability.
Since proof of "knowing" conduct does not necessarily disprove "intentional" conduct, the defect in the indictment is not of the character which would be classified as a defect that fails to charge an offense, and therefore, a motion to dismiss based upon the alleged defect in this indictment must be brought pre-trial, or it is waived. Tenn. R. Crim. P. 12(f).
We also note that a recent opinion of our supreme court lends support to the conclusion reached in this case. In Dykes v. Compton, ___ S.W.2d ___, No. 02-S-01-9711-CC-00105, Lake County (Tenn., Nashville, Sept. 21, 1998) the court addressed the issue of whether a challenge to an indictment may be addressed through a petition for writ of habeas corpus, and if it could be, whether the appellant in that case was entitled to the relief he sought. The supreme court concluded that a challenge to an indictment may be addressed in a habeas corpus petition. However, the court further held that the appellant was not entitled to the relief he sought in that case. Specifically, the appellant argued that the indictment which led to his conviction for aggravated rape was void because it failed to make any reference to a culpable mental state. In holding that the indictment in that case satisfied the requirements of Hill, 954 S.W.2d 725, the supreme court stated in part, "[a]pplying Hill, we find that the language of the above indictment, as well as the specific reference to the statute allegedly violated, provided the appellant with ample notice of the offense charged." Dykes, ___ S.W.2d ___, No. 02-S-01-9711-CC-00105, slip op. at 6. The court went on to say the following:
In conclusion, we wish to emphasize once again the fact that the Court has moved away from the strict pleading requirements of common law. As we noted in Hill, `the purpose for the traditionally strict pleading requirement was the existence of common law offenses whose elements were not easily ascertained by reference to a statute. Such common law offenses no longer exist.'Id. at 6-7 (emphasis added) (citation omitted).
In the case sub judice, there was a specific reference in the indictment to the statute allegedly violated. The element of "intentional" culpable mental state was easily ascertained by reference to this statute. We conclude that the reasoning contained in Dykes supports our holding that the motion to dismiss based upon the alleged defect in this indictment is waived since it was not brought pretrial.
Based upon the foregoing, we conclude that Defendant's first issue is not well taken. Accordingly, the second issue presented by Defendant is moot. The judgment of the trial court is therefore affirmed.
______________________________ THOMAS T. WOODALL, Judge
CONCUR:
(See separate concurring opinion)
______________________________ JOHN H. PEAY, Judge
______________________________ PAUL G. SUMMERS, Judge
I respectfully dissent. The majority holds that an indictment that references a lesser culpable mental state than is required by statute must be attacked pretrial or any complaint concerning the defect is waived. The majority bases its holding on the conclusion that "[s]ince proof of `knowing' conduct does not necessarily disprove `intentional' conduct, the defect in the indictment is not of the character which would be classified as a defect that fails to charge an offense [e.s.]." The majority misapprehends the significance of the defects contained in the instant indictment.
Generally, challenges regarding a defective indictment are waived if not raised prior to trial. Tenn. R. Crim. P. 12(b)(2). However, jurisdictional defects or the failure to charge an offense "shall be noticed by the court at any time during the pendency of the proceedings." Id. The statute proscribing the offense of evading arrest expressly provides themens rea element of "intentional." T.C.A. § 39-16-603(a) (1991)(stating, "It is unlawful for any person to intentionally flee . . . .")(emphasis added). The indictment in this case charged the culpable mental state of "knowing," not "intentional." Because "knowing" is not the equivalent of "intentional," see, e.g., State v. Crowe, 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 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 cannot logically be inferred from the language of the indictment (which alleges the defendant acted "knowingly") that the defendantnecessarily 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 `unlawfully' necessarily acts `knowingly'")(emphasis added); State v. Brandon Wilson, No. 03C01-9609-CC-00352 (following White).
I also disagree with the majority's suggestion that the indictment's specific reference to the charged statute can constitute a sufficient allegation of the required culpable mental state. The majority relies upon Dykes v. Compton, ___ S.W.2d ___, No. 02S01-9711-CC-00105 (Tenn. September 21, 1998), butDykes, like Hill, involved an offense for which the culpable mental state was not specified in the violated statute, which distinguishes it from the instant case. Where, as here, the charged statute specifies a particular mental state, merely referencing the statute in the indictment will not suffice in terms of alleging all essential elements, including scienter.State v. Marshall, 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 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 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