State v. Dent , 198 Neb. 110 ( 1977 )

Per Curiam.

The defendants were convicted of conspiracy to distribute cocaine and sentenced to 90 days imprisonment to be followed by 18 months probation. They have appealed and contend the evidence was not sufficient to support their conviction.

A jury was waived and the case tried to the court. There was evidence from which the trial court could have found that the defendant Bradley K. Bodeman was a resident of Grand Island, Nebraska. On October 4, 1975, William E. Burke went to the Bodeman residence at about 7 p.m. to purchase cocaine. There were two other persons at the residence in addition to Bodeman and his wife while Burke was there. While Burke was at the residence Bodeman received a telephone call from the defendant Gary Dent who was in Lincoln, Nebraska. The conversation was intercepted and recorded because there was a wiretap on the telephone at that time.

The substance of the conversation was that Bode-man said he had a bunch of “LB’s” coming in the next day and “we’re going to be making a bunch of money.” Bodeman wanted “some more of them” as soon as possible; 6 or 7 of the 10 Dent had left. Bodeman and Dent then agreed to meet that night in front of the Ramada Inn near York, Nebraska, so that Dent could deliver “seven” to Bodeman. The items which were the subject of the conversation were not identified. Burke overheard Bodeman’s part of the conversation and then left. Although Burke went to the Bodeman residence for the purpose of buying cocaine, he couldn’t say whether Bodeman had any cocaine available because they “didn’t talk about it,” while he was at the residence.

A highway patrolman observed Dent and Bodeman in the parking lot in front of the Ramada Inn near York, Nebraska, at about 9 p.m. Dent was positively identified because he was stopped by the patrolman and given a warning ticket for defective lights after he had started back toward Lincoln. Bodeman was identified by the vehicle which he was driving.

Burke called the Bodeman residence at about 10:30 p.m., and talked to Bodeman’s wife. Burke then went to the residence at about midnight and purchased 4 1-gram packets of a white powder from Bodeman which Burke understood and assumed was cocaine from previous conversations. He used it and said that it produced a numbing sensation when he touched it to his tongue and it gave him a “runny nose.” In answer to direct questions Burke stated he did not believe he received cocaine from Bodeman or that “it was very poor.” There is no other evidence to identify the white powder sold to Burke by Bodeman as cocaine.

The State’s theory of the case is that Dent and Bodeman were engaged in the distribution of cocaine, Dent as a wholesaler and Bodeman as a retailer. They agreed to meet near York, Nebraska, on October 4, 1974, so that Dent could deliver cocaine to Bodeman who in turn would sell it to third persons.

The conspiracy was an agreement to distribute and sell cocaine to third persons. The meeting near York, Nebraska, was an overt act in furtherance of the conspiracy. The sale to Burke at about midnight was a part of the final distribution which both defendants intended would take place.

Although the evidence is in part circumstantial, a conviction may rest upon circumstantial evidence if it is substantial. State v. Von Suggs, 196 Neb. 757, 246 N. W. 2d 206. It is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. As we view the record the evidence of the State was substantial and was sufficient to support the conviction.

The defendants contend the evidence will not support a conviction for conspiracy because the transaction between Dent and Bodeman was a sale in which Dent was the seller and Bodeman the buyer, and Dent did not participate in any way in the sale from Bodeman to Burke that took place later. The defendant argues that a conspiracy must be a joint agreement by the conspirators to perform the same act.

The conspiracy charged in this case was the distribution of cocaine. Both defendants agreed to participate in the chain of distribution and the object of the conspiracy was to have the cocaine distributed to third persons through Bodeman. Both defendants intended and expected that would take place. Both defendants participated in an overt act in furtherance of the conspiracy, and the purpose was accomplished when Bodeman delivered the cocaine to Burke. The defendant’s contention is without merit. See, United States v. Carlson, 547 F. 2d 1346 (Dec. 28, 1976); United States v. Bommarito, 524 F. 2d 140.

The judgment of the District Court is affirmed.

Affirmed.