dissenting.
Respectfully, I dissent.
A review of the evidence reveals that there was no prejudice by the jury instructions and that Appellant was not denied a unanimous verdict.
The circuit court instructed the jury on two offenses: Trafficking in a Controlled Substance in the First Degree and the lesser-included offense of Possession of a Controlled Substance in the First Degree. The Trafficking instruction read, in relevant part, that Appellant was guilty if he “had the cocaine in his possession with the intent to traffic in it.” Additionally, the instructions defined “Trafficking” as “to manufacture, distribute, dispense, sell, transfer or possess with the intent to manufacture, distribute, dispense, sell, or transfer a controlled substance.”
Even though Appellant asserts that the instruction defining “Trafficking,” permitted the jury to convict on multiple theories of the offense which were unsupported by the evidence, there is no indication the jury considered multiple theories. In fact, there was no reason for the jury to consider multiple theories. The instruction defining “Trafficking” was a general, definition instruction, not an instruction on alternate theories. It was a correct statement of the law and it mirrors the statutory definition of “Traffic” contained in KRS 218A.010.
Furthermore, there was no prejudice resulting from any possible over breadth in the definition of “Trafficking.” As the Court of Appeals aptly stated, “[wjhile the trial court’s instructions on trafficking could have been more precisely crafted, this Court cannot conclude that any error in this regard was so prejudicial as to require reversal.” The facts presented at trial support this conclusion.
Under the “harmless error” doctrine, “[tjhe court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.” RCr 9.24; See also Commonwealth v. Donovan, Ky., 610 S.W.2d 601 (1980); Commonwealth v. Stamps, Ky., 672 S.W.2d 336 (1984). Even errors involving constitutional rights may be found to be “harmless error.” See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).
Here the most logical inference from the evidence is that the entire jury based its verdict on the theory of possession with intent to sell. That particular theory was the one and only theory of the case presented. In determining that the jury re*885lied on that theory alone, the Court of Appeals found that the evidence in this case, unlike in other cases, only lent itself to one reasonable interpretation — that [Appellant] possessed the crack cocaine with intent to sell. In fact, at trial, the parties conceded that the evidence could only show possession with intent to sell. Thus, there could be no confusion by the jury in deciding on another method of trafficking. The total lack of evidence supporting an alternate theory does not require reversal.
Here, the facts indicate that the instruction did not create a “substantial possibility that the result would have been any different.” Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 952 (1969), overruled in part, Blake v. Commonwealth, Ky., 646 S.W.2d 718 (1983). Any error was harmless. RCr 9.24. The evidence was overwhelming that the drugs were possessed with the intent to sell, not any other theory. Therefore, even if the jury had been instructed more precisely, there is no indication that the verdict would have been any different. The instructions were not prejudicial and Appellant received a unanimous verdict.
Any error was harmless, and this Court should affirm the Kentucky Court of Appeals and the Jefferson Circuit Court.
LAMBERT, C.J., and WINTERSHEIMER, J., join this dissent.