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Garcia v. State4/21/2005
tal error occurs only when the omission is pertinent or material to what the jury must consider in order to convict." Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982), cert. denied, 460 U.S. 1103 (1983). Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.
Id. at 644-45. Turning to the facts of Delva, the Court noted that Delva presented testimony that the vehicle was jointly owned by himself and his fiancée and his brother had driven it on the day of the arrest, and Delva's defense at trial was that he did not know of the presence of the cocaine. The Court then held:
There was no suggestion that Delva was arguing that while he knew of the existence of the package he did not know what it contained. Hence, the issue which was raised in Dominguez and corrected by the addition to the standard jury instruction was not involved in Delva's case. Because knowledge that the substance in the package was cocaine was not at issue as a defense, the failure to instruct the jury on that element of the crime could not be fundamental error and could only be preserved for appeal by a proper objection.
Id. at 645. In short, the Court concluded that Delva's defense that he did not have knowledge of the presence of the cocaine did not also place into dispute the element of knowledge of the illicit nature, and therefore the error in failing to instruct the jury on that element was not fundamental.
Every district court that has considered the issue of whether fundamental error resulted from a trial court's failure to instruct that knowledge of the illicit nature of the substance is an element of the offense of possession has applied, on a case-by-case basis, the principle set forth in Delva that " ailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error." 575 So. 2d at 645; see Barnes v. State, 864 So. 2d 1200 (Fla. 1st DCA 2004) (fundamental error where defendant specifically contested knowledge of illicit nature); Mathis v. State, 859 So. 2d 1265 (Fla. 4th DCA 2003) (no fundamental error where knowledge of illicit nature not at issue); Jones v. State, 857 So. 2d 969 (Fla. 2d DCA 2003) (fundamental error where defendant's claim that cocaine residue was so minor as to not be usable or effectively measured constituted dispute regarding knowledge of illicit nature); Starling v. State, 842 So. 2d 992 (Fla. 1st DCA 2003) (no fundamental error where defendant only contested identity); Rhinehart v. State, 840 So. 2d 456, 457 (Fla. 4th DCA 2003) (no fundamental error where defendant "did not present any evidence or argue that he did not know the illicit nature of the substance"); Davis v. State, 839 So. 2d 734 (Fla. 4th DCA 2003) (no fundamental error where defendant only contested identity); Ozell v. State, 837 So. 2d 559 (Fla. 3d DCA 2003) (no fundamental error where defendant only contested identity); Lee v. State, 835 So. 2d 1177 (Fla. 4th DCA 2002) (no fundamental error where defendant denied knowledge of presence of marijuana); Johnson v. State, 833 So. 2d 252, 253 (Fla. 4th DCA 2002) (fundamental error where defendant contested knowledge of "illegality of the substance"); Blunt v. State, 831 So. 2d 770 (Fla. 4th DCA 2002) (fundamental error where defendant denied knowledge of pill bottle and crack cocaine, and State argued defendant had knowledge of substance because it had been in his hand and he exchanged it for money). Similarly, the Second District applied the same principle below in analyzing whether fundamental error occurred in Garcia's trial. I agree with the majority of this Court that
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