dissenting.
I must respectfully dissent from the majority opinion in this case because I cannot hold that the State presented sufficient evidence of conspiracy. Accordingly, I would vacate defendant’s conviction for conspiracy to traffic in cocaine by possession.
On appeal we review the evidence supporting a conviction of conspiracy to traffic in cocaine in the light most favorable to the State. State v. Sams, 148 N.C. App. 141, 144, 557 S.E.2d 638, 641 (2001).
A motion to dismiss is proper when the State fails to present substantial evidence of each element of the crime charged. See State v. McDowell, 329 N.C. 363, 389, 407 S.E.2d 200, 214 (1991). ‘Substantial evidence is evidence from which any rational trier of fact could find the fact to be proved beyond a reasonable doubt.’ State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986).
Id. In order to find defendant guilty of conspiracy to traffic in cocaine, the state must prove that defendant entered into an agreement to traffic in cocaine (for a specified amount), and intended the agreement to be carried out at the time which it was made. See State v. Valentine, 357 N.C. 512, 522, 591 S.E.2d 846, 855 (2003); State v. Diaz, 155 N.C. App. 307, 319, 575 S.E.2d 523, 531 (2002), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003); State v. Harris, 145 N.C. App. 570, 579, 551 S.E.2d 499, 504-05 (2001).
The essential element of conspiracy is that of the agreement. Therefore, for the denial of defendant’s motion to dismiss to be *703proper, there must be evidence of an agreement which the jury could find beyond a reasonable doubt. See Sams, 148 N.C. App. at 143-44, 557 S.E.2d at 641. Even in the light most favorable to the State, and recognizing the inherent difficulty of proving conspiracy, I cannot find substantial evidence that the defendant agreed to traffic in cocaine.
There was no evidence presented as to whether defendant had a previous relationship with Southerland or Meza, or even that he knew them. Cf. Sams, 148 N.C. App. 141, 557 S.E.2d 638 (evidence that defendant and drug dealer had worked together in the past to facilitate cocaine sales was enough to support a denial of a motion to dismiss a conspiracy charge). There was no evidence presented that defendant even spoke with the other two men. Cf. State v. Morgan, 329 N.C. 654, 406 S.E.2d 833 (1991) (multiple prior transactions and conversations between defendant and others regarding the sale and delivery of cocaine was sufficient to support an inference of a conspiracy); State v. Batchelor, 157 N.C. App. 421, 579 S.E.2d 422 (informant testified to previous conversations with defendant supporting inference of agreement), disc. review denied, 357 N.C. 462, 586 S.E.2d 101 (2003); State v. Diaz, 155 N.C. App. 307, 575 S.E.2d 523 (2002) (co-defendants had multiple conversations with one another regarding the sale of drugs), cert. denied, 357 N.C. 464, 586 S.E.2d 271 (2003).
There was no evidence presented as to how long the three men had been in the truck before being stopped by police. There was no evidence presented that defendant could see either the drugs in the seat or the gun in the pocket of the door opposite him. Defendant did not have drugs on his person, like Southerland did, nor did he have possession of a large sum of money, like Meza did. Cf. State v. Harris, 145 N.C. App. 570, 551 S.E.2d 499 (2001) (inference of conspiracy where defendant was found with a large amount of money on him and was sharing a hotel room with another person who had drugs on him at the time of arrest).
The majority relies on Batchelor to assert that a conspiracy may be inferred from the conduct of the other parties to the conspiracy. Here, in order to infer conspiracy from the other parties, the majority is stating that mere presence with others who may be in agreement to bring about a certain result is substantial evidence of an agreement with them. The Batchelor court did not go that far, and I do not think this panel should either.
*704In Batchelor, evidence reviewed in the light most favorable to the State showed that the defendant had agreed to sell drugs to a confidential informant because the two set up a face-to-face location for the buy. Batchelor, 157 N.C. App. at 427-28, 579 S.E.2d at 427. When the defendant came to the agreed-upon location, he brought a passenger with him. Despite pat-down searches, no drugs were recovered on either the defendant or his passenger; yet, after placing the defendant and his passenger in separate patrol cars, drugs were later found in the patrol car of the passenger. Id. Evidence further showed that the passenger was the only person who could have placed the drugs in the car, creating an inference that the drugs were on his person while he was with the defendant. Id. That, plus the conversations with the confidential informant in which the two agreed to a prearranged meeting location was sufficient evidence to send a conspiracy charge to the jury. Id.
Here, the evidence presented at trial, in congruence with Batchelor, would support an inference of a conspiracy between Meza and Southerland, who was later disposing of drugs while in custody, but not between defendant and Meza or defendant and Southerland. Defendant Batchelor had at least made several phone calls relating to the sale of cocaine that, together with the conduct of his passenger, would support an inference of conspiracy: upon arrival at the location the only drugs apparently to sell were located on the passenger. See State v. Valentine, 357 N.C. 512, 522, 591 S.E.2d 846, 855 (2003) (“[I]n establishing a criminal conspiracy, direct proof is not required. ... ‘It may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.’ ’’(citations and emphasis omitted)).
The only act proven on behalf of the defendant to show agreement between he and Meza or Southerland was that of being in the truck. Mere presence cannot stand as the only act linking a defendant to a conspiracy. See State v. Merrill, 138 N.C. App. 215, 221, 530 S.E.2d 608, 612 (2000) (Upon evaluating the State’s argument that the conduct of others supported a jury question as to conspiracy the Court determined that “[m]ere passive cognizance of the crime or acquiescence in the conduct of others will not suffice to establish a conspiracy.”)
Conclusively, I would hold that when marshaled together there was no evidence presented which could support a finding beyond a reasonable doubt that defendant agreed with either Meza or *705Southerland to traffic in cocaine. As such, I would reverse the trial court’s denial of defendant’s motion to dismiss the charge of conspiracy to traffic in cocaine, and, since defendant was only convicted of this offense, I would vacate the trial court’s judgment against him. Accordingly, I would not reach defendant’s other assignments of error.