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Garcia v. State4/21/2005
ve an instruction even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance." Id. at 172. As a separate matter, the Court also concluded that that error was reversible because Scott was not in actual, personal possession of the drugs, and testimony at trial indicated that the locker may have been accessible to other people--facts which raised the question of whether exclusive constructive possession was proved and, therefore, whether the Medlin presumption applied. See id. at 171-72.
Since Scott, this Court has reaffirmed the principle that, when requested by a defendant and regardless of the defense espoused, it is error for a trial court to fail to instruct the jury that knowledge of the illicit nature of the substance is an element of the offense of possession. See State v. Williamson, 813 So. 2d 61 (Fla. 2002); McMillon v. State, 813 So. 2d 56 (Fla. 2002); Washington v. State, 813 So. 2d 59 (Fla. 2002). However, this Court has not expressly spoken on the issue of whether such error is fundamental when the defendant fails to request such an instruction at trial. Yet that issue did come before this Court recently in Barnes v. State, 852 So. 2d 231 (Fla. 2003), in which we accepted jurisdiction on the basis of our review of Reed v. State, 783 So. 2d 1192 (Fla. 1st DCA 2001), and subsequently remanded Barnes' case to the district court in light of our decision in Reed v. State, 837 So. 2d 366 (Fla. 2002).
In Reed, we held that in aggravated child abuse cases, the failure to accurately define the element of malice constitutes fundamental error if the malice element was disputed at trial. 837 So. 2d at 369. While Reed is not directly on point with the issue raised in Barnes and the instant case, it is significant because it reaffirmed a principle set forth in State v. Delva, 575 So. 2d 643, 645 (Fla. 1991), a decision by this Court that addressed an unpreserved claim of error almost identical to the one raised here, that " ailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error." In Delva, the defendant was convicted of trafficking in cocaine. Delva's defense at trial was that he lacked knowledge of the presence of the cocaine found in his vehicle. No instruction was requested or given that the State must prove knowledge of the illicit nature of the substance. On review, this Court initially noted that there was "no doubt that the instruction given in Delva's case was erroneous" because it failed to include the element this Court previously added, in Dominguez, to the instruction on the offense of trafficking. Id. at 644. However, this Court also held that that error was not fundamental in Delva's case. Id. at 645. With regard to the generally applicable law, the Court wrote:
We have long held that " t is an inherent and indispensable requisite of a fair and impartial trial . . . that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence." Gerds v. State, 64 So. 2d 915, 916 (Fla. 1953). Instructions, however, are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. Castor v. State, 365 So. 2d 701 (Fla. 1978); Brown v. State, 124 So. 2d 481 (Fla. 1960). To justify not imposing the contemporaneous objection rule, "the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Brown, 124 So. 2d at 484. In other words, "fundamen
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