dissenting.
Respectfully, I must dissent. I take issue with the majority opinion’s finding that no palpable error exists from the inclusion of an enormous amount of irrelevant evidence. I believe the evidence was excessive, massively irrelevant, and prejudicial, and as a result would hold that its admissibility at trial constituted a manifest injustice.
As the majority recounts, there was myriad evidence presented characterizing Freddie Brooks’ house as a “drug emporium and distribution center.” In addition, the Commonwealth introduced testimony regarding other drugs found in the house at the time of Walker’s arrest — drugs which had no bearing on Walker’s trafficking charge. KRE 401 defines relevant evidence as any “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” I agree with Appellant when he argues that rampant drug use in Freddie Brooks’ house does not tend to make the existence of the fact that Walker flushed crack cocaine down the toilet or that he was tampering with evidence any more probable than without the evidence.
No doubt this plethora of evidence was presented in an effort to inflame the jury, and convict Walker of guilt by association. He was hanging out in a “crack house,” therefore he must be a drug dealer. The relevance of this evidence to the question of whether Walker intended to sell the crack cocaine that he flushed down the toilet, or whether he was tampering with evidence is lost on me. Even if the evidence is relevant, it still should not have been admissible because KRE 403 allows the exclusion of even relevant evidence “if its probative value is substantially outweighed by the danger of undue prejudice.”
I believe the majority might even agree that the admission of such evidence constituted an abuse of discretion by the trial judge. However, the issue is not preserved and therefore the majority does not address it at all. I believe the fact that the error was not preserved is the true irrelevancy here. Without this evidence, the Commonwealth would be left with evidence of Walker standing over a flushing toilet, from which the police later recovered crack cocaine. Therefore, I believe the verdict may have been different but for the inclusion of this evidence. Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969). As a result, I would hold the trial court committed palpable error in admit*540ting the irrelevant testimony regarding the drug-dealing transactions in the Brooks’ household, and I would hear this issue on its merits.