
    Kim Demetrius PRICE v. STATE of Alabama.
    CR-03-1652.
    Court of Criminal Appeals of Alabama.
    March 18, 2005.
    Rehearing Denied April 15, 2005.
    Certiorari Denied July 8, 2005 Alabama Supreme Court 1041119.
    Michael Crespi, Dothan, for appellant.
    Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. SHAW, J., concurs in result, with opinion, which COBB, J., joins.

SHAW, Judge,

concurring in the result.

I note, as I did in my special writing in Harrison v. State, 879 So.2d 594, 608-09 (Ala.Crim.App.2003) (Shaw, J., concurring in the result), that the trial court can constructively amend an indictment by charging the jury on the necessary culpable mental state. The trial court in the present case did just that by instructing the jury that in order to find Kim Demetrius Price guilty it had to find that he had knowingly possessed the cocaine. Based on my review of the record, I find no prejudice to Price’s substantial rights. Accordingly, I find it unnecessary to try again to sort out and reconcile the opinions of this Court and the Alabama Supreme Court dealing with the sufficiency of indictments. See, e.g., my special writing in Sullens v. State, 878 So.2d 1216, 1232-35 (Ala.Crim.App.2003) (Shaw, J., concurring in part and dissenting in part). Therefore, I concur in the result.

COBB, J., concurs.  