IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED FEBRUARY 1998 SESSION May 27, 1998 Cecil W. Crowson Appellate Court Clerk TRACY HIGGINBOTHAM ) ) Appellant, ) C.C.A. No. 01C01-9704-CC-00126 ) vs. ) WAYNE COUNTY ) STATE OF TENNESSEE, ) Honorable Jim T. Hamilton ) Appellee. ) (Habeas Corpus) ) )

SEPARATE CONCURRING OPINION I concur in the results in this case. In State v. Milton S. Jones, Jr., No. 02C01-9503-CR-00061, slip op. at 5 (Tenn. Crim. App., at Jackson, March 7, 1997), a panel of this court ruled that mens rea is an element of offenses such as sexual battery or rape. While I subscribe to the view expressed in Jones, I do concur that the allegations in these indictments do imply the mens rea.

_________________________________ Gary R. Wade, Judge