### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON STATE OF TENNESSEE v. KELAN I MELIA MAYER Direct Appeal from the Circuit Court for Henry County

No. 12750 Julian P. Guinn, Judge

No. W1999-00613-CCA-R3-CD - Decided May 8, 2000

The defendant, Kelani Melia Mayer, was convicted of conspiracy to sell a Schedule I controlled substance. In this appeal, she asserts that theindictment was defective for failure to allege any overt act in furtherance of the conspiracy, that hearsay evidence was erroneously admitted at trial, that the evidence was insufficient, and that the sentence was excessive. Tenn. R. App. P. 3; Judgment of the Trial Court Reversed
W ADE , P.J., delivered the opinion of the court, in which W ILLIAM S and O GLE , JJ., joined. Lloyd R. Tatum (on appea l), Henderson, T

ennessee, and T

eresa McCaig Ma

rshall(at trial) , Paris, Tennessee, for the appellant, Kelani Melia Mayer. Paul G. Summers, Attorney General & Reporter, J. Ross Dyer, Assistant Attorney General, Robert G. Radford, District Attorney General, and Beth Boswell, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION

The defendant, Kelani Melia Mayer, was convicted of conspiracy to sell a Schedule I controlled substance, a Class C felony. The trial court sentenced the defendant as a Ra nge I of fender to th ree years in the Department of Correction, with one year to be served in continuous confinement

and the remainder to be served in the community corrections program. The trial court also assessed a $2,500.00 fine.

In this appeal of rig

ht, the defendant contends that the trial court er

red by failing to dismiss the indictment; that inadmissible hearsay was admitted into evidence; that the evidence was insufficient

to support the conviction; and that the sentence was excessive. Because the indictment failedto include an alle

gation of an over

t a ct in furth erance of the conspiracy, the judgment of conviction is reversed and the indictment is dismissed.

On April 27, 1998, the Par is Police Department exe cuted a search

warrant at the ho

me of Tracy K. Gant, a friend of the defendant. In conjunction with t he search, police seized-2-

approximately

250 hits of lysergic acid diethylamide (LSD), various ledgers and papers belonging to Ms. Gant, and approximately $1,400.00 in cash.

In August of 1998, the police asked Scott Norwood, who in April and May of 1998 shared a residence with

the defendant a

nd her boyfrie

nd, to give a statement regarding the defendant's involvement in the sale of LSD. Norwood informed the investigating officers that ap proximate ly two or three days prior to Ms. Gant's a

rrest, an individu

al asked him wheth

er Ms. Gant had any more acid. When Norwood an swered that he di

d not know, the man a

sked him to relay a message to the def

endant, requesting that

the defendant check with Ms. Gant and call him. When Norwood confronted the defendan t about the occurrence, the defendant replied that "she wasn't [selling LSD] but that she kne w people who want

ed it and she would h

ook them up with [Ms. Gant]." The defendant e

xplained that "[a

]ll she was doing was s

ending people

to Tracy and [Tracy] handled the business and [] Tracy would probably give her a cut." Later, Norwood made a second statement to police wherein he denied having any personal knowledge of the defendant's possessing, selling, or using LSD.

At trial, Norwood te

stified that he wa

s under duress at t

he time that he made his

first statement to the police and claimed that he made h is seco nd statement in an a ttempt to clarify h

is first. Tracy Gant, while acknowledging that she pled guilty to possession o

f LSD with intent to se

ll, testified that the ledgers seized from her home contained reco rds related to her LSD sales. She offered no testi

mony against the de

fendant. Sergeant Donald Blackwell, who executed the search warrant at Tracy Gant's home, testified that the various documents he seized were illegal drug ledgers. He further testified that the ledgers established that the defendant was in partnership with Ms. Gant . Officer B lackwell also searched the home of the def

endant, but found no drug ledgers. The defense did not present any proof. The crime of con spiracy is statutor

ily defined as fol

lows:
Th e offense of conspiracy is committed if two (2) or more pe ople , eachhaving the culpable mental state required for the offense which is the object of the conspira cy and each acting for the purpose of promoting or facilitating commission of an offense, agree that one (1) or more of them w

il l engage in conduct which constitutes such offense.
* * *
No p erson may be conv

icted of conspira

cy to commit an offe

nse unless an overt act in pursuance of such cons piracy is alleged and provedto have been done by the person or by another with whom the person conspired.-3-

Tenn. Code Ann. § 39-12-103(a), (d) (emphasis added). In order to convict a defendant for conspiracy, the

state must prove that each conspirator had the culpable mental state to commit the offense, that each conspirator acted for the purpose of promoting or facilitating the offense, and

that at least one of the conspirators committed an overt act in furtherance of the agre ement. State v. Perkinson , 867 S.W.2d 1, 5 (Tenn. C rim. Ap p. 1992). All of the essential elemen

ts of an offense must be alleged in an indictment. State v. Mencer , 798 S.W.2d 543, 546 (Tenn. Crim. App. 1990); McCrackenv. State , 489 S.W.2 d 48, 53 (Tenn. Crim . App. 1972). Wher

e an indictment fa

ils to properly allege all of the e

ssential elements of a n offense, all further proceedings are void. Perkinson , 867 S.W.2d at 5.

A conspiracy indictment must allege an overt act in furtherance of the conspiracy charged; if it does not, it must be dismissed, and any further proceedings in lieu of its dismissal are a nullity. Id. at 5-6; Mencer , 798 S.W.2d at 546. I n Mencer , th is court stated the rationale for requiring the alle

gation of an over

t act in a conspira

cy indictment:
To allow a prosecutor or court to make a subsequent guess as to what was in the minds of the grand jury at the time they ret ur ned the indictmentwould deprive the defendant of a basic protection that the grandjury was designed to secure, because a defendant could then be convictedon the basis of fac ts not found by, and perhaps not even presented to, the

grand jury that ind

icted him. 798 S.W.2d at 546 (quoting United States v. Cec il , 608 F.2d 1294, 1297 (9th Cir. 1979)). The conspiracy to sell count of the indictment in

this case provides in pertinent part as follows: That

KELANI MELIA MAYER, heretofore, to wit: On or about the 27TH DAY OF APRIL, 1998, in the County aforesaid, then and there didknowingly or intentionally conspire, agreeand act with another, to wit: TRACY KAY GANT to commit the offense of SELLING A CONTROLLED SUBS TANCE; and in furthe rance of said conspirac y an d agreement and a

cting for the purp

ose of facilitati

ng th e commis sion of said SELLING A CONTROLLED SUBSTANCE, KELANI MELIA MAYER did kno wingly or intentiona

lly conspire to distribute a controlled subs tanc e, to wit: PAPER SQUARES IDENTIFIED AS LYSERGIC ACID DIETHYLAMIDE (LSD), A SCHEDULE I CONTROLLED SUBSTANCE, thereby violating the statute of CRIMINAL CON SPIRA CY, in violation of T.C.A. 39-12-103, against the peace and dignit y of the State

of Tennessee[.] The state concedes t

hat this language i

s insufficient to su

stain the indictmen

t because it fails to set forth an overt act in furtherance of the alleged conspiracy. Because there is no allegation of an overt act in furtherance

of the conspirac

y, the indictment fa

ils to allege all of

the essential ele

ments of the-4-

offense. Accordingly, we reverse the c onvicti on and dismiss the ind ictment. Because proceedings subsequent to an in adequate indictm

ent are a nullity,

this court will not ad

dress t he remaining issues. The costs of this appeal are taxed to the state.