Fоllowing a bench trial, defendant was convicted of conspiracy to deliver cocaine, MCL 750.157(a); MSA 28.354(1), and sentenced to probation for life. Defendant appeals as of right. We reverse.
On the morning of July 8, 1983, Henry Scott, an undercover narcotics officer, telephоned Lloyd Woodside and asked to purchase three ounces of cocaine. Scott testified that Woodside "said he would have tо get in contact with his source to see —to make sure the cocaine was available and arrangements could be made”. Police officers later saw Woodside leave his place of employment, make a stop at an unspecified location, and then travel to a Livonia restaurant._
*470 At approximately 12:30 p.m., defendant left his apartment complex and drove to the same Livonia restaurant, where he met and talked with Wood-side and one or two other individuals. At some point, Woodside left the table and made a telеphone call to Officer Scott. Scott testified that Woodside informed him "that all the arrangements were made; he had the coke”. Scott suggested they meet later at a bar.
Approximately 20 minutes after calling Scott, Woodside and defendant went to defendant’s car in the restaurant parking lot. Defendant removed a white envelope from the passenger side of his car and handed it to Woodside, who put the envelope in the trunk of his car. Both men then returned to the restaurant. Woodside subsequently left the restaurant, drove to a parking lot whеre he removed a white envelope from his trunk, and then drove to a bar where he met Officer Scott. The two men went to Woodside’s car. Scott examined a white envelope containing what was later determined to be 2.94 ounces of cocaine. The record does not indicate when defendant was arrested.
Defendant contends that the trial court erred in allowing over defense objection the testimony of Officer Scott regarding Woodside’s statements in arranging the cocaine delivery. Defendant’s position is that there was insufficient indеpendent proof of a conspiracy to bring Scott’s testimony within MRE 801(d)(2)(E), which provides that a statement is not hearsay if made by coconsрirators "during the course of and in furtherance of the conspiracy on independent proof of the conspiracy”.
The essenсe of a conspiracy is an agreement to do that which is unlawful. It must be shown that the respective coconspirators intended to further, promote, or cooperate in the unlawful enterprise.
*471
People v
Atley,
In the instant case, the chаllenged statements were made during the course of and in furtherance of an alleged conspiracy between defendant and Woodside to deliver cocaine to Officer Scott. Therefore, before the statements were admitted under MRE 801(d)(2)(E), it was necessary that therе existed proof by a preponderance of the evidence that defendant and Woodside agreed to deliver cocaine to Officer Scott.
The evidence, exclusive of Woodside’s statements, leaves little doubt that defendant intended to deliver cocaine to Woodside. We find, however, that in the absence of the hearsay statements there was insufficient evidence to reasonably infer that defendant conspired with Woodside to deliver cocaine to Officer Scott. See
Vega, supra,
p 781. There was no evidence showing thаt the two men agreed, or that defendant understood, that the cocaine was to be distributed to a third party rather than used by Woodside pеrsonally. There was no testimony regarding the substance of the conversation which took place between defendant and Woodside at the restaurant. There was no evidence that defendant knew the nature of Wood-side’s phone call or dealings with Officer Scott. We are unpersuaded by the people’s contention that
*472
Woodside’s intent to deliver to a third party may be inferred from the quantity of cocaine he received from defendant, see
e.g., People v Abrego,
Defendant next contends that the trial court erred in denying his motion for a directed verdict. The standard of review for sufficiency of the evidence in a bench trial is (1) whether the trial court clearly erred in its ruling, see
People v Hubbard,
In order to survive a motion for a directed verdict, the trial court had to find facts tending to establish beyond a reasonable doubt that defendant combined with another to commit an illegal act or to commit a legal act in an illegal manner. See Atley, supra. Further, the prosecution must have shown that defendant had clear and unequivocal knowledge of the prohibited act or conduct. *473 Id., p 310. In the instant case, absent Woodside’s hearsay statements, all that could reasonably be inferred is that defendant delivered cocaine to Woodside. Because that was not the theory upon which the prosecutor proceeded or what the trial judge was asked to find in adjudging defendant guilty of сonspiracy to deliver cocaine, the court erred in failing to grant defendant’s motion for a directed verdict. See Vega, supra, pp 782-783.
Finally, defendant contends that the examining magistrate abused his discretion in binding defendant over for trial. We disagree. Our review of the preliminary examination trаnscript shows that, although the examining magistrate apparently considered evidence not properly before him, there was sufficient circumstantial evidence to find probable cause to believe that defendant conspired with Woodside to deliver cocaine. See
People v Doss,
Reversed.