¶1Dissenting.
¶2I must respectfully dissent from the opinion written for the majority in this matter because any possible error in the instruction was totally harmless pursuant to RCr 9.24.
¶3The evidence at trial demonstrated that Whitmore was either possessing the cocaine with the intent to sell, or according to him, holding it for his cousin. Thus, no reasonable juror could have convicted Whitmore of anything but possession with intent to sell or mere possession. In order to find Whitmore guilty of possession with intent to dispense, distribute or transfer the cocaine, the jury would have had to ignore the evidence presented. As noted by Justice Graves in his dissenting opinion in Burnett, any error was harmless.
¶4I would reverse the decision of the Court of Appeals and affirm the original conviction.
¶5LAMBERT, C.J., joins this dissent.