                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 97-KA-00624-SCT
ANTHONY CULP a/k/a SHERMAN ANTHONY CULP
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                               05/09/97
TRIAL JUDGE:                                    HON. FRANK ALLISON RUSSELL
COURT FROM WHICH APPEALED:                      LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         WILLIAM C. BRISTOW
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL
                                                BY: DEWITT T. ALLRED, III
DISTRICT ATTORNEY:                              DENNIS FARRIS
NATURE OF THE CASE:                             CRIMINAL - FELONY
DISPOSITION:                                    AFFIRMED - 06/25/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 7/16/98




     BEFORE SULLIVAN, P.J., ROBERTS AND WALLER, JJ.


     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:




¶1. Anthony Culp was tried and convicted of the crime of the crime of conspiracy to sell, transfer, or
distribute cocaine in Lee County, Mississippi by Circuit Judge Frank A. Russell, sitting without a
jury.

¶2. Culp was sentenced to a term of eight (8) years in the custody of the Mississippi Department of
Corrections to be served concurrently with another sentence imposed on Culp in Cause No. CR94-
275. Culp asserts that the trial court should have granted his motion for directed verdict at the end of
the state's case and at the close of the defendant's case. Culp further contends that the verdict was
against the overwhelming weight of evidence and he should have been granted a motion for JNOV.

¶3. We find Culp's assignments of error to be without merit and the conviction and sentence of the
Circuit Court of Lee County, Mississippi are affirmed.

¶4. The facts of this case involve the scenario of an undercover officer accompanied by a confidential
informant making a drug buy. Paul Mills, the officer, testified that William Betts got into the car with
them on the night of July 14, 1993, in Tupelo, Mississippi, and asked them what they needed. When
Mills replied "a 20", Betts directed him to drive to another location saying he would have to go and
get it from somebody.

¶5. The testimony of Officer Mills is that he watched Betts walk up to the defendant Culp and hand
him $20.00 of buy funds and then he saw Culp give something back to Betts. Betts returned to the
car, produced a rock of cocaine and gave it to Officer Mills.

¶6. Officer Mills testified that he could not hear the conversation between Betts and Culp and was
not able to see the rock exchange hands from that distance but he did see Betts' hand at all times. It
was further said that when he and the confidential informant prepared to leave, Culp came to the
passenger side window of their car and "ask him if he got what he wanted. And that in the future that
he did not need to go through anybody else that he just needed to come to him."

¶7. At the conclusion of the testimony of Mills, the State rested and Culp's motion for directed
verdict was overruled.

¶8. Culp was the only witness for the defense and in his testimony he denied knowing William Betts
and said that he never transferred drugs and more specifically that he never handed Betts one rock of
cocaine. In essence Culp disputed all of Officer Mills' testimony.

¶9. The defense again moved for a directed verdict which was denied and neither party presented a
closing argument.

¶10. Based on the conflicting testimony before him the trial judge by weighing the credibility of the
two witnesses found Mr. Culp guilty beyond a reasonable doubt.

                                         Standard of Review

¶11. We have stated, "For review of the findings of a trial judge sitting without a jury, this Court will
reverse 'only where the findings of the trial judge are manifestly erroneous or clearly wrong.'"
Amerson v. State, 648 So. 2d 58, 60 (Miss. 1994) (quoting Barnes v. Confidential Party, 628
So.2d 283, 290 (Miss.1993)); See also Schmitt v. State, 560 So. 2d 148, 151 (Miss. 1990). The trial
judge has sole authority to determine the credibility of the witnesses when sitting as trier of fact in a
bench trial. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987). Where the evidence
is contradictory, this Court "generally must affirm." Lesley v. State, 606 So.2d 1084, 1091
(Miss.1992) (citations omitted).

I. The trial court erred in denying the Appellant's motions for Directed Verdict at the close of
the State's case in chief and at the close of the Defendant's case in chief.

II. The verdict of the trial court was against the overwhelming weight of the evidence
presented at trial and the trial court erred in its failure to grant the Defendant's Motion for
JNOV.

¶12. As both issues on appeal concern the sufficiency of evidence, they will be discussed together.
Culp argues that the evidence and proof presented at trial is wholly lacking and is insufficient to
prove beyond a reasonable doubt that he is guilty of conspiring with Betts to sell, transfer or
distribute cocaine. Culp argues that even assuming that the testimony of Officer Mills is true, the
State did not exclude the possibility that Betts had purchased or obtained a rock of cocaine from the
defendant, and then Betts, on his own, without any participation from Culp, engaged in a separate
and distinct illicit drug transaction with Officer Mills and the confidential informant. This may have
merit had the trial judge not found that Culp's conversation with Mills subsequent to the transaction
shows that Culp transferred the cocaine to Betts with the intent and knowledge that it would be
transferred by Betts to Mills. The trial court stated, "The crucial testimony offered by Officer Mills,
under oath, that Mr. Culp approached the car thereafter and gave -- and made a statement concerning
whether or not he was satisfied, and also instructions about future purchases on The Hill." Culp
contends that this was merely an invitation to engage in future criminal activity and that an invitation
to engage in criminal activity subsequent to two separate and distinct drug transactions cannot and
does not link the two transactions into one, nor does it link all persons involved in the two separate
and distinct transactions as conspirators in one transaction.

¶13. The only case law cited by Culp in support of his contention that the verdict is contrary to the
weight of the evidence is McDonald v. State, 454 So. 2d 488 (Miss. 1984). In McDonald this Court
stated, "To constitute an individual a co-conspirator, there must be a recognition on his part that he is
entering into some kind of common plan, and knowingly intends to further its common purpose." Id.
at 495. Culp argues that the mere fact that Culp may have associated with Betts does not prove that
he participated in a conspiracy. The facts of the McDonald case are much different than this. In
McDonald, this Court found that the defendant was trying to extricate his brother and very good
friend. Although he may have been guilty of accessory after the fact, the Court found that there was
insufficient evidence that the defendant did anything but try to help others from getting caught after
they had stored a quantity of marijuana at another friend's house. Consequently this Court reversed
his conviction and sentence. Id. at 490-91, 495.

¶14. In this case, the evidence was legally sufficient, because the testimony of Officer Mills, if
believed by the trier of fact, established all the elements of the crime charged. Mills testified that he
watched Betts walk about twenty feet to where another individual was standing who he identified as
the defendant Culp. Mills testified that he observed Betts hand Culp the $20.00 of buy funds and he
saw Culp give something back to Betts and then without putting his hands in his pocket, Betts
returned to the car, opened his hand, and produced a rock of cocaine which he handed to Officer
Mills. Mills further testified that as he and the confidential informant prepared to leave, Culp came to
the passenger side window of their car where Mills was seated, and "asked me if I got what I wanted.
He then further stated that from then on I did not have to go through anybody else, that I just needed
to come to him."This testimony does indicate that Culp knew "he [was] entering into some kind of
common plan, and knowingly intend[ed] to further its common purpose." McDonald, 454 So. 2d at
495. As previously quoted by this Court:

     . . . The conspiracy agreement need not be formal or express, but may be inferred from the
     circumstances, particularly by declarations, acts, and conduct of the alleged conspirators.
     Furthermore, the existence of a conspiracy, and a defendant's membership in it, may be proved
     entirely by circumstantial evidence.

Franklin v. State, 676 So. 2d 287 (Miss. 1996) (quoting Nixon v. State, 533 So. 2d 1078, 1092
(Miss. 1987)). Based on Officer Mills' testimony, the conduct, circumstances and the comment that
Mills said Culp made to him after the transaction was completed is sufficient to support the charge of
conspiracy to sell, transfer or distribute cocaine. This Court affirms Culp's conviction and sentence.

                                           CONCLUSION

¶15. There is nothing in the record to support that the verdict was the result of prejudice or bias and
the testimony of Officer Mills ,which necessarily was believed by the trial judge, supports each
element of the crime of conspiracy. For the foregoing reasons, We affirm the trial court's conviction
and sentence.

¶16. CONVICTION OF CONSPIRACY TO SELL, TRANSFER OR DISTRIBUTE CRACK
COCAINE AND SENTENCE OF EIGHT (8) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. THIS SENTENCE
SHALL RUN CONCURRENTLY WITH THE SENTENCE IN CAUSE NUMBER CR94-275.

PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE, ROBERTS, SMITH, MILLS AND
WALLER, JJ., CONCUR.
