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Newcomb v. Commonwealth3/6/1998
of the alleged error on appeal. Johnson v. Commonwealth, Ky., 892 S.W.2d 558, 562 (1994). Nevertheless, an appellate court may consider an issue that was not preserved for appellate review if it deems the error to be a "palpable" one which affected the defendant's "substantial rights" and resulted in "manifest inJustice[.]" RCr 10.26.
In determining whether an error is prejudicial or harmless "an appellate court must consider whether on the whole case there is a substantial possibility that the result would have been any different." Commonwealth v. McIntosh, Ky., 646 S.W.2d 43, 45 (1983). A harmless error is "any error or defect in the proceeding that does not affect the substantial rights of the parties." RCr 9.24. The weight of the evidence and the amount of punishment imposed are factors available to determine if an error is harmless. Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 953 (1969).
When Newcomb testified at trial, he admitted that he was driving while his license was revoked or suspended due to DUI. Furthermore, he received the minimum sentence of one year. The error in admitting the convictions was harmless under these circumstances.
Newcomb's final argument is that the trial court erred by overruling his motion for a new trial based on the introduction of his prior convictions during the guilt phase. In light of the overwhelming evidence of Newcomb's guilt, the fact that he received the minimum sentence, and his failure to object to the admissibility of the convictions, we find no abuse of discretion in the trial court's denial of Newcomb's motion for a new trial. Johnson, (supra) at 563.
The judgment of the Fayette Circuit Court is affirmed. ALL CONCUR.
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