concurring in part and dissenting in part.
While I concur in Issues II, TII and IV, I must dissent to the majority's disposition of Issue I which concerned instructing the jury that "[plossession of a quantity of a con*1174trolled substance ... is cireumstantial evidence of intent to deliver."
Contrary to the majority's view and the view expressed in Chandler v. State (1991) Ind., 581 N.E.2d 1283, I cannot see how this language invades the province of the jury by "implicitly positing" that the evidence proves beyond a reasonable doubt that Morgan was in fact in possession of a large amount of narcotics. To me it simply, and quite permissibly, says to the jury that if it finds that he possessed a large quantity then that constitutes evidence from which the jury may permissibly infer an intent to deliver. Even so, I agree that we are constrained by Chandler to hold that giving the instruction over proper objection is reversible error.
In this case there was, however, no objection whatever made to the instruction. The majority says giving the instruction was fundamental error. It is with this contention that I vigorously disagree. Of course, the error produced legally cognizable prejudice to Morgan. Otherwise it would be harmless error even if a proper and timely objection had been made. I believe that fundamental error is, and should be, made of sterner stuff. We have traditionally limited it to error so blatant and egregious that it denies a defendant fundamental due process. Seq, eg., Thornton v. State (1991) Ind., 570 N.E.2d 35, 36. It must be distinguished from error that is harmful and prejudicial but that should properly remain subject to the contemporaneous objection rule. The error in giving the instruction at issue is simply not of that genre. I therefore dissent and would affirm the conviction for possession with intent to deliver.