¶1dissenting, with whom BROWN, Chief Justice, joins.
¶2I would affirm Lee’s conviction. I recognize that the ruling on the challenge for cause by the district court was erroneous. That erroneous ruling had the effect of depriving Lee of one of his peremptory challenges, and that is trial error, probably of constitutional dimension. I am satisfied beyond a reasonable doubt, however, that this error was not prejudicial to Lee. In the absence of prejudicial error, this court should affirm his conviction.
¶3As the majority opinion correctly demonstrates, it is not permissible for a juror to serve in a criminal case if that juror previously has served in a case involving the same events leading to substantially identical charges provable by substantially the same evidence, even though against a different defendant. That is very much like permitting a juror who has served on a jury which has convicted a defendant to serve at a later trial of that defendant, after a reversal has been obtained; but that did not happen in this case. Instead, Lee was required to exercise one of his peremptory challenges in order to remove the juror who properly was challenged for cause. Consequently, the thrust of the error only can be the loss of one of his peremptory challenges.
¶4Nothing in the record indicates that Lee was deprived of his right to an impartial jury in violation of either the Sixth Amendment to the Constitution of the United States or Art. 1, § 10 of the Constitution of the State of Wyoming. He was, however, denied equal protection of the law and his right to due process in violation of the Fourteenth Amendment to the Constitution of the United States; Art. 1, § 6 of the *300Constitution of the State of Wyoming; and Art. 1, § 34 of the Constitution of the State of Wyoming. Lee had the benefit of one less peremptory challenge than other defendants have in a trial for a felony charge.
¶5Assuming an error of constitutional dimension was committed, this court is not required to reverse Lee’s conviction because we have provided that “any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Rule 49(a), W.R.Cr.P. In Campbell v. State, Wyo., 589 P.2d 358 (1979), this court adopted the rule for testing harmless error of constitutional dimension promulgated with respect to the Constitution of the United States in Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065, reh. denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). In such an instance, “the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Campbell v. State, supra, 589 P.2d at 367.
¶6Lee’s co-defendant was convicted by a jury upon substantially the same evidence. That is demonstrated because the thrust of Lee’s claim of error with respect to the denial of the challenge for cause is that the juror who served in the prior case would be hearing substantially the same evidence. That juror did not sit in this case, and Lee then must assert as error the fact that he was deprived of a peremptory challenge. As noted, there is nothing to indicate that the jury was not impartial, and that jury convicted Lee. Under these circumstances, it is clear beyond a reasonable doubt that no other impartial jury would reach a different result, and a reversal simply affords Lee the opportunity to seek jury nullification.
¶7Because of my view with respect to harmless error on the peremptory challenge issue, I am compelled to address the claim of error arising out of the failure to give an instruction on the lesser included offense of possession. The trial judge properly recognized that Lee either did what he was charged with or he did nothing. Consequently, Lee’s request for the lesser included offense instruction relating to simple possession was an effort to seek jury nullification of the appropriate statute under which he was charged by convicting him of something else. As this court previously has noted, the possibility of jury nullification is not a right enjoyed by a defendant in a criminal case. Nollsch v. City of Rock Springs, Wyo., 724 P.2d 447 (1986). Consequently, Lee was not entitled to the lesser included offense instruction in an attempt to secure jury nullification. Lessard v. State, Wyo., 719 P.2d 227 (1986). Because the evidence does not support a reasonable conclusion of simple possession only, the trial court committed no error in refusing to give the instruction on the lesser included offense of simple possession. Amin v. State, Wyo., 695 P.2d 1021 (1985).
¶8I would affirm this conviction.