concurring in part and dissenting in part.
Respectfully, I dissent.
The Majority Opinion misapplies the test for harmless error, stating:
“[Wjhile challenged testimony of Detective Ray and State Adjutant Doebler was improperly admitted, circumstantial evidence produced at trial was more than sufficient to support the conviction of appellee. Admission of this testimony was harmless.”
■ The test of harmless error is not whether other “evidence produced at trial was more than sufficient to support the conviction of appellee,” but whether other evidence of guilt is so substantial that we can say as a matter of law that the evidence improperly admitted could not have prejudiced the outcome of the case.
The principal argument made by the Commonwealth in its Brief, and the reason for accepting discretionary review, was that although the Court of Appeals may have properly reversed the conviction, it improperly directed the trial court to dismiss the action. We have gone beyond that argument to hold not only that the Court of Appeals should be reversed, but to “reinstate the conviction of appellee.” The Commonwealth cites Commonwealth v. Mattingly, Ky., 722 S.W.2d 288, 289 (1986), to argue that evidence “erroneously admitted does not bar a remand for retrial.” We have gone beyond this to hold that evidence erroneously admitted, even though prejudicial, does not bar reinstatement of the verdict of guilt and the judgment of conviction.
The Majority Opinion holds that objection to the testimony of Detective Ray was not preserved, and is not grounds for reversal. I agree.
But the Majority Opinion also held that evidence from Joseph Doebler regarding the $700 check he saw lying on the appel-lee’s kitchen table was not connected to “profits from unlawful gambling activity” (KRS 528.020(1)) except by speculation. And this constituted reversible error.
The Court of Appeals ruled that admitting such evidence was prejudicial error. We have held that it was error, but harmless. We err in so holding.
I concur in reversing so much- of the Court of Appeal’s Opinion as directs the trial court to dismiss the action. But, rather than reinstating the judgment of conviction, I would remand for a new trial.
WINTERSHEIMER, J., joins.