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Garcia v. State4/21/2005
Court stated, "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." Delva, 575 So. 2d at 645. Delva was affirmed by Reed v. State, 837 So. 2d 366 (Fla. 2002). In Reed, this Court held that the failure to give a jury instruction on an element of a crime is fundamental error if the element was disputed at trial. However, as the dissent points out, we have affirmed a conviction where the State failed to offer evidence on one element of a crime when that element was not disputed at trial. See F.B. v. State, 852 So. 2d 226 (Fla. 2003) (holding that the insufficiency of the evidence to prove one element of a crime does not constitute fundamental error where the defendant failed to object or to move for judgment of acquittal on this ground). We clearly stated in F.B. that our affirmance was premised on the fact that the defendant had not preserved the issue of the sufficiency of the evidence for appellate review. Id. at 231.
In this case, the element of knowledge of the illicit nature is in dispute. A challenge to that element is encompassed in Garcia's argument that he did not know the container existed at all and he had never seen it before. By arguing that he did not have knowledge that the black taped package existed, the defendant in this case is implicitly arguing that he did not have knowledge of the illicit nature of the substance inside of it. See, e.g., Scott, 808 So. 2d at 169 (holding that Scott's argument that he did not possess the drugs and had no knowledge of the drug's presence in his locker encompasses the argument that he was unaware of the illicit nature of the substance). We find that the knowledge element of a possession charge includes both knowledge of possession and knowledge of the nature of the illegal substance. Thus, when a defendant argues that he or she had no knowledge that an illegal substance was in his or her possession, that defendant also disputes that he or she had knowledge of the nature of the illegal substance. When an essential element of a crime is in dispute at trial, such as the knowledge of the illicit nature of the substance in a possession case, the failure to instruct the jury on that element is fundamental error.
CONCLUSION
Therefore, we approve the First District's decision in Goodman and quash the Second District's decision in this case.
It is so ordered.
PARIENTE, C.J., and ANSTEAD and LEWIS, JJ., concur.
WELLS, J., dissents with an opinion, in which CANTERO and BELL, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
WELLS, J., dissenting.
I dissent. With regard to the certified conflict, I would approve the Second District's decision below; disapprove Goodman v. State, 839 So. 2d 902 (Fla. 1st DCA 2003); and hold that in cases where a defendant's theory of defense against a charge of possession was lack of knowledge of the presence of the illegal substance, the reasoning in State v. Delva, 575 So. 2d 643 (Fla. 1991), that that theory of defense does not also place into dispute knowledge of the illicit nature, should be applied in determining whether fundamental error resulted from a trial court's failure to give the Chicone instruction. In so doing, I would recede from the dicta in Scott v. State, 808 So. 2d 166, 171 (Fla. 2002), that "Scott's argument that he did not possess the drugs and had no knowledge of the drug's presence in his locker encompasses the argument that he was unaware of the illicit nature of the substance."
In order to fully understand this
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