dissenting.
I must dissent from the disposition of this case according to the majority opinion. It is seldom a failure of logic like that manifested here is found in a court opinion. The majority carefully sets forth the material facts, and it states the applicable rules of law. It then misapplies those rules in such a way that it substitutes itself for the jury, not only reweighing the evidence, re*1164lying substantially on the version of the facts submitted by Mondello and Jones, but then deciding the case in this court, in effect, concluding it is not persuaded of guilt beyond a reasonable doubt, which it describes as insufficiency of the evidence. It seems to me that, having discerned no unlawful conduct on the part of the officers, this court decided to rectify a situation that offended the court by nullifying the jury verdict. It then substituted its perception of the evidence for that of the jury and acquitted the defendants.
I quote the material testimony from the majority opinion:
Bascus, unknown to Mondello and Jones, had been arrested for selling cocaine and had turned informant for the government, i.e., cut a deal in which he would make a case against Mondello and avoid prosecution for his own crime. He testified at trial that the deal Mondello offered was to give Bascus $1,350.00 to buy an ounce of cocaine. Bascus was then to sell the cocaine and use the profits to buy more cocaine. Mondello would take back his stake in the form of either “an eight ball a week” for his personal use, or in cash. Bascus further testified that Mondello suggested that Bascus invest in and sell marijuana to build up his money supply faster. Bascus testified that Mondello was not interested in marijuana for his personal use, only cocaine. The plan also called for Jones to help sell whatever Mondello did not use. It was Bascus’ testimony about this plan which formed the alleged conspiracy of which Mondello and Jones were convicted.
At 1154-1155.
The court goes on to correctly state the standard pursuant to which the evidence is to be reviewed quoting from Rathbun v. State, 802 P.2d 881, 882-83 (Wyo.1990), this language, which is repeated for emphasis:
We examine whether the evidence most favorable to the State is sufficient to infer reasonably that a statute was violated as charged. See Mendicoa v. State, 771 P.2d 1240, 1243 (Wyo.1989); Seeley v. State, 715 P.2d 232 (Wyo.1986); Chavez v. State, 601 P.2d 166 (Wyo.1979); and Cheng v. Com., 240 Va. 26, 393 S.E.2d 599, 608 (1990). Our examination involves a two stage process.
When examining if the verdict is supported by sufficient evidence, we review the record to examine “all the evidence in the light most favorable to the [s]tate * * Mendicoa, 771 P.2d at 1243. We examine the evidence from this perspective because we defer to the jury as the factfinder and assume they believed only the evidence adverse to the defendant since they found the defendant guilty beyond a reasonable doubt. We are aware the defendant’s version argued for a finding of “not guilty” while the prosecutor’s version argued for a finding of “guilty.” Had the jury found the defendant’s version credible, they would be bound to harbor reasonable doubt against the prosecutor’s claim that the defendant was guilty. But they did not find the defendant’s version credible and therefore found him guilty beyond a reasonable doubt. We do not ask if “ ‘the evidence establishes guilt beyond a reasonable doubt for us * * *,’ ” Id. at 1243 (quoting Broom v. State, 695 P.2d 640, 642 (Wyo.1985)), because the answer to that question would require this court to weigh the evidence and determine who was most credible. That determination simply is not a function of this court. “[W]e are not to reweigh the evidence.” Broom, 695 P.2d at 641.
Second, after drawing into the open only the evidence adverse to the defendant, we examine whether that evidence permits the jury’s inference that the defendant violated the elements of the statute as charged. Our focus is singular and only examines the reasonableness of the inference from premises admittedly adverse to the defendant. See Broom, 695 P.2d at 642.
To the same effect are e.g., Wehr v. State, 841 P.2d 104 (Wyo.1992); Bouwkamp v. State, 833 P.2d 486 (Wyo.1992); Scadden v. State, 732 P.2d 1036 (Wyo.1987); DeSersa v. State, 729 P.2d 662 (Wyo.1986); Roose v. State, 759 P.2d 478 (Wyo.1988); Righter v. State, 752 P.2d 416 (Wyo.1988); *1165Carson v. State, 751 P.2d 1315 (Wyo.1988); and Griffin v. State, 749 P.2d 246 (Wyo.1988).
The majority, immediately after reviewing the standard for reviewing the sufficiency of the evidence, correctly reports:
To prove a conspiracy under Wyoming’s controlled substances conspiracy statute, it is not necessary to show that the parties to the conspiracy performed an overt act to effect the objective of the agreement. Bigelow v. State, 768 P.2d 558, 561 n. 6 (Wyo.1989); Apodaca v. State, 627 P.2d 1023, 1026 (Wyo.1981). All that must be shown is that the parties agreed to commit an offense under Article V of the Controlled Substances Act. W.S. 35-7-1042. We have used the following language to describe the agreement which the prosecution must prove under the general conspiracy statute, which applies equally to conspiracy to deliver a controlled substance:
One might suppose that the agreement necessary for conspiracy is essentially like the agreement or “meeting of the minds” which is critical to a contract, but this is not the case. Although there continues to exist some uncertainty as to the precise meaning of the word in the context of conspiracy, it is clear that the definition in this setting is somewhat more lax than elsewhere. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates the agreement. * * * Because most conspiracies are clandestine in nature, the prosecution is seldom able to present direct evidence of the agreement. Courts have been sympathetic to this problem, and it is thus well established that the prosecution may “rely on inferences drawn from the course of conduct of the alleged conspirators.” [footnotes omitted]
W. LaFave and A. Scott, Criminal Law 460-61 (1972), quoted in Burke v. State, 746 P.2d 852, 855 (Wyo.1987) and also in Bigelow, 768 P.2d at 562.
At 1161-1162.
In light of what the majority espouses as correct rules relative to proof of conspiracy and sufficiency of the evidence, the statement that, “[m]ore importantly, the prosecution failed to tie the final ‘buy’ by Mon-dello to the agreement Bascus reported”, at 1162, is a classic non sequitur. Since the rule is that there is no necessity for proof of an overt act to establish the conspiracy, why should the prosecution “tie the final ‘buy’ by Mondello” to the charged conspiracy. That offense was complete upon proof of an agreement to violate the Controlled Substances Act. The testimony from Bas-cus that is quoted above certainly establishes such an agreement.
Apparently recognizing, at least at a subliminal level, the difficulty with the logic, the majority, in direct violation of the rules pertaining to the standard for sufficiency of the evidence, quotes and describes other testimony the majority perceives as contradictory. In essence, the majority weighs the evidence and concludes the court is not persuaded of guilt beyond a reasonable doubt. This is a clear substitution of the court for the jury; an invasion of the jury’s prerogative; and a violation of a fundamental rule of appellate jurisprudence. The further argument about the apparent inconsistency in the verdicts is nothing more than a judicial hare. It is entirely possible, if speculation is permitted, that the jury was not persuaded beyond a reasonable doubt that Mondello received the cocaine from Glick for resale rather than personal use and, yet, was persuaded beyond a reasonable doubt that a conspiracy was formed in June of 1990 for Mondello, Jones, and Bascus to market cocaine in order to finance Mondello’s personal habit.
I would affirm the judgments and sentences in this case.