¶1concurring in part and dissenting in part.
¶2Although I concur on the other issues, I must respectfully dissent as to the harmfulness of the drug paraphernalia instruction. Because the evidence of Stewart’s prior conviction of possession of drug paraphernalia is uncontroverted and uncontro-vertable, I believe the Commonwealth has satisfied its burden of establishing that the instructional error was harmless. “In a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.” Neder v. U.S., 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). As, I believe the trial court’s failure to instruct the jury as to the element of Stewart’s prior conviction was harmless, no manifest injustice requiring reversal occurred. RCr 10.26.