dissenting.
I dissent from the majority opinion for three reasons: First, the trial court should have directed a verdict in favor of appellant Thomas as to his charge of complicity to trafficking in cocaine. Second, the trial court’s improper commingling of the crimes of trafficking in cocaine and wanton murder in the jury instruction under which all three appellants were convicted of wanton murder requires reversal of those convictions. Third, appellant Graves’s conviction for complicity to trafficking in cocaine should be reversed and remanded for a new trial because the trial court wrongfully allowed the Commonwealth to introduce evidence which implied that someone connected with Graves contacted a prosecution witness and told the witness not to testify. Because the Commonwealth introduced no evidence that Graves or someone acting on his behalf attempted to suppress the witness’s testimony, this evidence was prejudicial and could well have influenced Graves’s trafficking conviction. ■
APPELLANT THOMAS’S CONVICTION FOR TRAFFICKING IN COCAINE
As to Thomas, I find no evidence to support an instruction on trafficking in cocaine, and the trial court should have directed a verdict against the Commonwealth as to this charge. Certainly, all of the evidence suggests that Thomas had every intention of purchasing a huge amount of cocaine. However, the Commonwealth concedes that Thomas never received any quantity of cocaine, and the tragic events of this evening followed from the undisputed fact that Thomas surrendered $27,000 to Woods but did not receive his drugs in return. KRS 218A.1412 crim*867inalizes as first degree trafficking in a controlled substance “knowingly and unlawfully trafficking in” a number of controlled substances including cocaine and KRS 218A.010(28) defines “traffic”:
“Traffic,” ... means to manufacture, distribute, dispense, sell, transfer or possess with intent to manufacture, distribute, dispense, or sell a controlled substance.
While the majority appears comfortable affirming Thomas’ conviction on the basis of the complicity statute contained at KRS 502.020(1), such a conclusion is explicitly barred by KRS 502.040(1), which explains that:
A person is not guilty under KRS 502.010 or 502.020 for an offense committed by another person when:
(1) The offense is so defined that his conduct is inevitably incident to its commission.
The 1974 Commentary to this statutory provision explains that subsection one is intended to apply to transactional offenses:
Subsection (1) provides for two exemptions to the general doctrine of imputed liability for conduct which aids in the perpetration of crime.... The second is for a person who joins another in a two-party transaction that constitutes a crime.... As a consequence of this exemption, the purchaser of an alcoholic drink cannot be convicted as an accomplice under a statute which provides a penalty only for the seller.
In other words, KRS 502.040 reasonably limits the reach of the complicity statute and prevents a drug purchaser from being charged with trafficking. A number of jurisdictions have interpreted this Model Penal Code provision to bar prosecution of drug buyers and sellers for complicity in the crime committed by the other party to the transaction. See, e.g., People v. Manini, 79 N.Y.2d 561, 584 N.Y.S.2d 282, 594 N.E.2d 563 (1992) (a seller of a controlled substance is not an accomplice in the possession crime of his buyer); Robinson v. Texas, 815 S.W.2d 361 (Tex.App.1991) (a buyer of drugs is not an accomplice in the “delivery” crime committed by his seller); Louisiana v. Celestine, 671 So.2d 896 (La.1996) (buyer of drugs is not an accomplice in the “distribution” crime committed by his seller); Owes v. Alabama, 638 So.2d 1383 (Ala.Crim.App.1993) (buyer of cocaine is not an accomplice in the “sale” crime committed by his seller); Long v. Arkansas, 260 Ark. 417, 542 S.W.2d 742 (1976) (buyer of narcotics cannot be an accomplice in the illegal sale of drugs by his seller); Colorado v. Hart, 787 P.2d 186 (Colo.App.1989) (“the conduct of one who takes delivery of the controlled substance is “inevitably incident” to the criminal conduct of one who delivers the controlled substance”); Commonwealth v. Fisher, 426 Pa.Super. 391, 627 A.2d 732 (1993) (buyer of drugs cannot be an accomplice in the “delivery” crime committed by his seller).
Thomas cannot therefore, as a matter of statutory law, be liable as an accomplice for the crime of trafficking in cocaine because all of the evidence presented indicates that he was the intended “buyer” in this transaction. In addition, the evidence presented by the Commonwealth would not permit the trial court to instruct the jury that they could find Thomas guilty as a principal of the offense since the record contains no evidence that Thomas sold or transferred cocaine and the Commonwealth concedes that he never possessed this alleged cocaine. KRS 218A.1412; See, e.g. Butler v. Commonwealth, Ky., 560 S.W.2d 814 (1978); Pilon v. Commonwealth, Ky., 544 S.W.2d 228 (1976).
The Commonwealth presented a purely circumstantial case for trafficking in cocaine by Woods (the alleged dealer) and Graves (the alleged dealer’s driver), but the testimony relating to preparations for the transaction and the admission by Woods to McDuffie that he had the cocaine were sufficient evidence to allow the trial court to instruct the jury on the crime of trafficking in cocaine as to Woods and *868Graves. While the evidence that Woods possessed a quantity of cocaine for sale was far from overwhelming, I feel that “under the evidence as a whole, it [was not] clearly unreasonable for a jury to find the defendant guilty.” Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). The jury could have determined rationally, consistently with the evidence, and beyond a reasonable doubt that Woods had been in possession of cocaine for sale, and the trial court was correct to deny the motions for directed verdicts made by counsel for Woods and Graves. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
THE WANTON MURDER CONVICTIONS
Each of the three appellants was convicted of two counts of wanton murder under an instruction which read:
NO. [] — WANTON MURDER
If you do not find the defendant, [ ], guilty under Instruction No. 1, and if you find the defendant, [ ], guilty of Trafficking in a Controlled Substance in the First Degree under Instruction No. 2, then you will find him guilty under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
a. That during the course of Trafficking in a Controlled Substance in the First Degree and as a consequence thereof, [ ] McDonald was killed;
AND
b. That by so participating in the offense of Trafficking in a Controlled Substance in the First Degree the defendant was wantonly engaging in conduct which created a grave risk of death to another and that [ ] McDonald’s death was caused under circumstances manifesting extreme indifference to human life.
If you find the defendant guilty under this instruction, you shall say so by your verdict and no more.
As explained above, the Commonwealth introduced insufficient evidence of defendant Thomas’s complicity in the crime of trafficking in cocaine to justify the trial court’s instruction of the jury as to the offense. Because the trial court should have directed a verdict against the Commonwealth as to Thomas’s charge of Trafficking in a Controlled Substance in the First Degree, his wanton murder convictions must be reversed as well because the jury instructions intertwined the crimes and required criminal liability for trafficking in cocaine as a prerequisite to convictions for wanton murder.
Further, the form of the wanton murder instructions under which the jury found all three appellants guilty require this Court to reverse those convictions regardless of the evidence of trafficking in cocaine. While the Commpnwealth may have introduced sufficient evidence to support wanton murder instructions based on one or more of the the appellants’ roles in the car chase,1 the Commonwealth encouraged the jury to find the defendants guilty under the other wanton murder instruction premised on trafficking in cocaine, and the jury did so. Consequently, this Court’s review does not focus on whether the Com*869monwealth introduced sufficient evidence to justify any instruction on wanton murder, but instead, we must determine whether the evidence introduced at trial justified the specific instruction given. Fugate v. Commonwealth, Ky., 445 S.W.2d 675, 677 (1969).
The trial judge should never have given the second wanton murder instruction which integrated the trafficking offense because only the most tortured analysis can imagine a causal relationship between the appellants’ alleged participation in the drug transaction and the deaths. The Mc-Donalds were killed almost five miles away from the site where the alleged drug transaction was supposed to have occurred. No transaction was “ongoing”.at that time, and the majority’s attempt to describe the two offenses as “inextricably intertwined” is imaginative, but devoid of a meaningful factual or authoritative support. The drug transaction had ended. The car chase which followed Thomas’s discovery that the cocaine had not been delivered to him cannot be melded into the prior attempt at a drug transaction by the sheer will of the Commonwealth or this majority opinion. Labeling one’s own result-oriented conclusions as “clear inference[s] from the evidence presented in this case” does not make them so, and the majority’s theory that the high speed chase and whizzing bullets were merely an attempt at completing the drug transaction exceeds even the most liberal interpretation of reasonable inferences. KRS 218A.1412 defines the boundaries of the crime of first degree trafficking in a controlled substance, and it leaves no room for the majority’s expanded interpretation.
The Kentucky Penal Code provision which explains causal relationships, KRS 501.060(3), notes, “When wantonly ... causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware.... ” “[T]he plain intent of the statute is to have the causation issue framed in all situations in terms of whether or not the result as it occurred was either foreseen or foreseeable by the defendant as a reasonable possibility.” R. Lawson and W. Fortune, Kentucky Criminal Law, Sect. 2-4(d)(3), at 74 (LEXIS 1998).
The bottom line is that the trial court should have instructed the jury as to this “felony wanton murder” theory only if the evidence presented tended to prove beyond a reasonable doubt (1) that drug trafficking created a substantial and unjustifiable risk that fatal auto accidents would occur, and (2) that the appellants appreciated this risk and consciously disregarded. No such evidence was introduced. The Commonwealth did introduce testimony from. Furman, one of the unindicted accomplices, that dealing in drugs “could be very dangerous” and that “people can get killed over drug deals,” but produced no evidence of the types of risks upon which the trial court instructed the jury. The fatal automobile accident involving two innocent parties five miles from the scene of the attempted drug transaction is beyond the scope of risks proven by the Commonwealth to be incident to drug trafficking. Without such proof, the instruction was improper and all of the wanton murder convictions must be reversed.
GRAVES’S COUNSEL, McDUF-FIE/FURMAN & THE FIFTH AMENDMENT
At trial, the Commonwealth introduced evidence that McDuffie and Furman, with whom the Commonwealth had cut a deal in exchange for testimony, considered invoking their rights to remain silent under the Fifth Amendment to the United States Constitution. Specifically, the Commonwealth introduced evidence: (1) that an unknown person approached McDuffie and suggested that he “plead the Fifth,” after which McDuffie went to see Graves’s attorney, Mr. Stewart; and (2) that McDuffie tried to persuade Furman to “take the Fifth Amendment.” In addition, the Commonwealth asked Furman whether “when *870Aaron [McDuffie] was talking to you about pleading the Fifth, did he suggest that you go talk to Mr. Graves’ attorney like he wanted to go talk to?” Furman answered in the negative. Finally, in closing argument, the prosecution underscored this testimony by reminding the jury that “people have come and talked to [McDuffie] about taking the Fifth ... there’s been a lot of pressure on him by others not to testify.”
The majority addresses Graves’s claim of error by stating, “Although McDuffie did not identify who had urged him to refuse to testify, the clear implication was that it was someone connected with Graves. We have held this kind of evidence admissible as inconsistent with a defendant’s innocence.” However, the Commonwealth introduced absolutely no evidence to connect appellant Graves or his counsel with any attempt to get McDuffie or Furman to refuse to testify. The Commonwealth conceded that Mr. Stewart did not speak with McDuffie or Furman, and the attempt to connect this evidence to Graves cannot be supported even by a reasonable inference based on the evidence at trial. “It is a rule ... in this jurisdiction that evidence that a witness has been threatened or otherwise influenced in an attempt to suppress his testimony is admissible in a criminal prosecution only where the threat was made by, or on behalf of the accused.” Campbell v. Commonwealth, Ky., 564 S.W.2d 528, 531 (1978). Where there is no evidence to connect the defendant with the attempt to suppress testimony, the testimony is clearly inadmissible. Id.
Without question, evidence and commentary of this type is highly prejudicial and inflammatory. The majority opinion recognizes this in labeling this type of evidence “inconsistent with a defendant’s innocence.” Particularly in a case such as this one, where the case for trafficking in cocaine is premised on accomplice liability and circumstantial evidence, I cannot conclude that this inadmissible evidence was harmless as to the first degree trafficking in a controlled substance conviction. The evidence of guilt on the charges of wanton endangerment, criminal mischief, speeding and disregarding a traffic control device is overwhelming, and, with respect to those convictions, I believe the inadmissible evidence and commentary regarding McDuf-fie’s and Furman’s thoughts about invoking the Fifth Amendment was harmless error as contemplated in RCr 9.24. I would, however, reverse Graves’s conviction for first degree trafficking in a controlled substance.
I would reverse appellant Thomas’s conviction for trafficking in a controlled substance first degree and both of his wanton murder convictions, appellant Woods’s convictions for wanton murder, and both appellant Graves’s conviction for trafficking in a controlled substance first degree and his wanton murder convictions. I would remand all three appellants’ cases for further proceedings consistent with this opinion.
JOHNSTONE and STUMBO, JJ., join this dissent.
. In fact, the first instruction given by the trial court with respect to appellant Graves correctly directed the jury to assess his homicide liability on the basis of the car chase: You will find the defendant, Avery Graves, guilty under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
a. That in Jefferson County, Kentucky, on or about the 8th day of February, 1995, he, killed [ ] Mcdonald by striking [him or her] with a car.
AND
b. That in so doing, he was wantonly engaging in conduct which created a grave risk of death to another and thereby caused the death of [ ] McDonald under circumstances manifesting an extreme indifference to human life.
If you find the defendant guilty under this instruction, you shall say so by your verdict and no more.