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Garcia v. State4/21/2005
" Id. In other words, the statement supported the threshold finding of error but was not also part of the harmful error analysis. That threshold finding of error, however, was primarily and fully supported by the Court's determination that guilty knowledge is a necessary element of the offense of possession, and its rejection of the alternative conclusion that lack of guilty knowledge is an affirmative defense. Thus, the statement was mere dicta that could and should be receded from in the instant case in order to resolve the apparent conflict between it and the holding of Delva.
The basic point in Scott that a defendant's theory of defense has no effect on the trial court's duty to instruct the jury on every element of the crime charged remains correct. Whether or not a defendant disputes a particular element of a crime does not control whether the jury is to be informed of that element. The jury should always be informed of every element of a crime charged. However, where a defendant fails to object to incomplete instructions regarding the elements of a crime, the issue of whether the trial court's error in failing to properly instruct constitutes fundamental error should be determined on the basis of whether the missing element was a disputed issue at trial. This is because the fundamental error standard is a strict one, designed to correct the type of error that "reaches down into the validity of the trial itself." Where an element of the crime charged was not disputed at trial, it cannot be said that the jury's consideration of guilt was affected by an improper or insufficient instruction on that element. This is illustrated by cases such as Delva, in which it cannot logically be said that a jury which found the defendant guilty despite his claim that he did not have knowledge even of the presence of the illegal substance would have found the defendant not guilty if instructed on the additional element of knowledge of the illicit nature.
The conclusion I reach is consistent with the recent unanimous decision of this Court in F.B. v. State, 852 So. 2d 226 (Fla. 2003). In F.B., we approved the Fourth District's holding that the insufficiency of the evidence to prove one element of a crime does not constitute fundamental error, and therefore this claim must first be raised in the trial court to be preserved for appellate review. If the failure to prove at trial one element of a crime is not fundamental error, then neither can failure to instruct on one element be fundamental error.
CANTERO and BELL, JJ., concur.
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