dissenting.
The conclusion that this challenged jury instruction is error appears unavoidable under the holding in Chandler v. State, 581 N.E.2d 1233 (Ind.1991). The three misleading and erroneous aspects of the instruction condemned in Chandler are present in the instruction given in this case. The instruction here stated:
Possession of a large amount of a controlled substance is cireumstantial evidence of the defendant's intent to deliver. The greater the amount in possession, the stronger the inference he intends it for delivery and not for personal use.
The instruction condemned in Chandler stated:
Possession of a large amount of narcotics is cireumstantial evidence of intent to deliver.
The evidence against David tended to show a quantity of drugs, large in terms of the number of doses it would provide and large in terms of dollar value. Thus, as in Chandler, the first sentence of this instruction states directly that the amount found in defendant David's possession inferentially proves his intent to deliver, and implicitly posits that it sufficiently proves that intent beyond a reasonable doubt. Chandler. This is so because the jury would have understood the instruction as requiring it to make the required inference. Intent to deliver is an ultimate fact in issue and an element of the erime charged. The sentence does not suggest what a large amount may tend to prove, but what it does prove. It is a command *394which binds the jury. An Indiana common law judge has no authority to tell a jury what elements of a criminal charge have been proved by the prosecution.
The second sentence exacerbates the error in the first sentence. After the first sentence informs the jury that the large amount proves the intent to deliver, the second sentence adds an explanation:
Possession of a large amount of a controlled substance is cireumstantial evidence of the defendant's intent to deliver. [This is so because] The greater the amount in possession, the stronger the inference he intends it for delivery and not for personal consumption.
The second sentence explains the basis upon which the conclusion in the first sentence that a large amount proves intent to deliver was reached. As such, it does not save this instruction. Even under the reading given the instruction by the majority, it is clear that the instruction does not leave the jury free to eredit or reject the inference. The instruction thus undermines the factfinder's responsibility at trial, based upon the evidence produced by the state, to find the ultimate facts beyond a reasonable doubt, and it is thus suspect under the Due Process Clause. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). It is likewise suspect under Art. 1, Section 19 of the Indiana Constitution which reserves the authority in the jury to determine the law and the facts. This instruction also impinges the right of the defendant to be heard by counsel under Art. 1, Section 13, in that it forecloses the right of defense counsel to argue that David's proves only his intent to use it or to guard it on behalf of others.
Finally, the erroneous instruction commands a result favorable to the prosecution and falls heavily on the scales of justice in this case. As was the case in Chandler, David was stopped for a simple traffic violation, and not for street behavior consistent with dealing drugs, as is many times the case. He made no offer to sell drugs. He did not hand over drugs to anyone. This raises the issue of whether he intended to deliver rather than use the drugs to the crucial level. The other evidence of intent, namely, the cash, the gun, and the statement, are certainly relevant, but hardly decisive.
The basic rules governing criminal trials were skewed by this erroneous instruction in such a manner as to deny a fair trial I therefore respectfully dissent, agree with the Court of Appeals that this instruction was fundamental error obviating the necessity of a trial objection, and vote to reverse for a new trial.