Miller, Judge.

Following a bench trial, Lavashiae Kier was convicted of a single count of possession of less than one ounce of marijuana, in violation of OCGA § 16-13-2. She now appeals, claiming that the evidence was insufficient to sustain her conviction. Kier also asserts that the trial court’s denial of her motion for a continuance and her motion to produce an incarcerated witness violated her Sixth Amendment rights to the effective assistance of counsel and compulsory process, respectively. Finding that the State failed to prove Kier’s possession of marijuana beyond a reasonable doubt, we reverse.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [the defendant] no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Jackson v. State, 252 Ga. App. 268 (1) (555 SE2d 908) (2001). So viewed, the evidence shows that on January 20, 2007, Sergeant Zack Tanner of the Baldwin County Sheriffs Department observed a vehicle traveling at a very low rate of speed while *209flashing its emergency lights. Tanner conducted a traffic stop to see if the driver needed assistance, and he found that the car was owned and driven by Cory Dixon. A juvenile was sitting in the front passenger seat next to Dixon; Kier was seated in the rear seat behind Dixon; and Kier’s friend, Chiquita Baker, was seated next to Kier in the back seat.

After Tanner approached the driver’s side door, Dixon rolled down his window, and Tanner noticed both the scent of marijuana coming from the vehicle and smoke inside of it. In investigating the possible presence of marijuana in the car, Tanner found a bag containing 16 “rocks” of crack cocaine in the compartment of the driver’s door. Tanner then arrested Dixon, and he asked the other occupants of the car to exit the same. After the passengers were outside the car, police observed a hand-rolled marijuana cigarette on the rear floorboard, just behind the center console, and observed that the same had been recently smoked. Based on this cigarette, Tanner arrested all three passengers for possession of marijuana.

The only defense witness was Baker, who stated that on the evening in question, she and Kier had gone to a local nightclub, where she encountered Dixon, whom she knew from school. Baker asked Dixon if he could give Kier and her a ride home, and Dixon agreed. During that ride, Dixon and his juvenile passenger smoked a marijuana cigarette, which they disposed of when the police stopped the car. Baker, however, did not see what they did with that cigarette, because she was preoccupied with hiding her personal marijuana, obtained at the nightclub, in her underwear. Baker further stated that Kier did not smoke the marijuana cigarette belonging to Dixon and his juvenile passenger, that Kier was unaware that Baker had marijuana on her person, and that she never saw Kier in possession of marijuana that night.

After the trial court found Kier guilty, she filed this appeal.

1. Kier first asserts that the evidence was insufficient to sustain her conviction. We agree.

Because no evidence showed Kier in actual possession of the marijuana, the State relied on circumstantial evidence to show she had constructive possession of the same. To prove constructive possession, the State was required to show some connection between Kier and the marijuana cigarette other than spatial proximity. “Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citation and punctuation omitted.) Hodges v. State, 277 Ga. App. 174 (626 SE2d 133) (2006). Rather, the State needed to demonstrate beyond a reasonable doubt that Kier “knowingly had both the power and intention at a given time to exercise control over the [marijuana]. Power may be inferred *210from access to the drugs, while the matter of intent may be derived from the surrounding circumstances.” (Citations and punctuation omitted.) Castillo v. State, 288 Ga. App. 828, 830 (655 SE2d 695) (2007).

Circumstances showing an intent to exercise control over the drugs include a defendant’s attempts to flee or elude police; inconsistent explanations by the defendant for her behavior; the presence of significant amounts of contraband and drug paraphernalia in plain view; the defendant’s possession of large amounts of cash, other indicia of the sale of drugs, or drug-related paraphernalia; evidence that the defendant was under the influence of drugs; or drug residue found on the defendant. See, e.g., Hodges, supra, 277 Ga. App. at 175-176; Moody v. State, 232 Ga. App. 499, 501 (1) (502 SE2d 323) (1998); Francis v. State, 231 Ga. App. 112, 113 (1) (497 SE2d 827) (1998). The evidence shows no such circumstances in this case. Specifically, there was no evidence that Kier was uncooperative, attempted to flee police, behaved erratically, or appeared to be under the influence of drugs. Sergeant Tanner testified that the evidence indicated that the juvenile sitting in the front passenger seat had rolled the marijuana cigarette. Sergeant Tanner further admitted that while marijuana residue was found on the floor and on the front passenger seat, no such residue was found in the area near Kier, on her seat, or on her person, and that Kier possessed no drug paraphernalia.

Furthermore,

when the State’s constructive possession case is based wholly on circumstantial evidence, the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.

(Citation and punctuation omitted.) Hodges, supra, 277 Ga. App. at 174. “When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt.” (Citations and punctuation omitted.) Paden v. State, 216 Ga. App. 188, 189 (453 SE2d 788) (1995).

The circumstantial evidence presented at trial was entirely consistent with Kier’s theory of innocence — i.e, that she was merely a passenger in Dixon’s car and had nothing to do with the marijuana cigarette found therein. Accordingly, we find no evidentiary basis on which the trial court could find beyond a reasonable doubt that Kier was in constructive possession of that marijuana. See Autry v. State, *211150 Ga. App. 584 (258 SE2d 268) (1979) (reversing conviction of possession of less than one ounce of marijuana where no evidence connected marijuana, which was in car’s ashtray, to the defendant-passenger); Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997) (noting there is no presumption of possession by a mere passenger in an automobile, even where the drugs are found near that passenger). Nor was this evidence sufficient to convict Kier as a party to the crime of possession. See Edwards v. State, 272 Ga. App. 540, 543 (1) (612 SE2d 868) (2005).

Decided June 25, 2008.

Kristen C. Quinton, for appellant.

Maxine Blackwell, Solicitor-General, for appellee.

2. In light of our holding in Division 1, we need not address Kier’s remaining enumerations of error.

For the reasons set forth above, we find that the evidence was insufficient to support a finding beyond a reasonable doubt that Kier was in constructive possession of the marijuana, and we therefore reverse her conviction for the same.

Judgment reversed.

Blackburn, E J., and Ellington, J., concur.

KANNE, Circuit Judge.

Defendant Cheryl A. Hunte appeals her conviction and sentence for her role in an attempt to transport narcotics from Arizona to New York in 1997. The trial court sentenced Hunte to concurrent terms of thirty-three months imprisonment, two years supervised release and a $500 fine. On appeal, Hunte challenged the sufficiency of the evidence against her and the denial of a sentencing reduction under U.S. Sentencing Guidelines Manual § SB 1.2 for her minimal or minor role in the crime. We find the trial court erred in denying the § 3B1.2 reduction and remand the case to the trial court for re-sentencing. Recognizing that Hunte is due to be released in February 2000, we have expedited review of her appeal.

I. HISTORY

A. The Conspiracy

In March 1997, Hunte decided to accompany her boyfriend, now co-defendant, Joseph Richards, on a trip to California with an acquaintance known as Luis Gonzalez. Richards was a known drug dealer, and there was little mystery that the purpose of the trip was to purchase and bring back a load of narcotics. Richards supplied a minivan for the trip, and Gonzalez was to be the driver. Richards agreed to pay Gonzalez seven pounds of marijuana for help driving the van, purportedly to California. Hunte, on the other hand, stood to gain nothing from the deal. She apparently went along for the ride.

Richards directed the trip and made all or most of the decisions. Once on the road, he told Gonzalez that they were headed for Arizona, not California, and that he planned to pick up as much marijuana as he could get and bring it back to New York. Gonzalez would get his share and sell it for $8,000 to $9,000. Richards warned Gonzalez to drive safely and obey the speed limit and other rules of the road.

The three drove until they got to Tulsa, Oklahoma, where they rented a motel room. They showered but did not stay the night. Instead, leaving Hunte behind, Richards and Gonzalez went to meet Johnathan Warwick. Warwick was a Tulsa resident who rented a room from a man to whom Richards owed $3,000 for past drug dealings. Richards asked Warwick to help him drive to Phoenix (apparently not telling him for what purpose). Warwick agreed, believing that if the trip was successful, Richards would pay his friend the $3,000 Richards owed, and the friend would stop taking Warwick’s disability checks for room and board. The three men picked up Hunte at the motel and left for Arizona.

Once back on the highway, Richards changed the plan again and said they were headed for Tucson, not Phoenix, and that their ultimate destination was Virginia, not New York. Warwick eventually figured out they were going to pick up drugs, but by this time they were in Texas. In Tucson, Richards made some calls from a pay phone at a convenience store, and eventually a man in a Chevy Blazer arrived who then escorted them to a house. Several hours later, .a man came and took the minivan, returning it later loaded with *690marijuana. Richards asked Gonzalez and Warwick to help him carry the marijuana into the kitchen. During this time, Hunte remained in the living room watching television. With Hunte in the other room, the three men weighed the bundles of marijuana. Richards cut one bundle open to make sure it was all marijuana and extracted some buds for sampling. Gonzalez testified at trial that Richards took precautions to keep Hunte out of the business aspects of the deal.

Hunte helped roll the buds into a joint and closed the window blinds while the group smoked the marijuana. Warwick, Richards and Gonzalez re-wrapped the marijuana and loaded it into the van. Richards’ brother then arrived in a burgundy Nissan Maxima. After dropping off Richards’ brother in Phoenix, Richards and Hunte drove to Tulsa in the Maxima, followed by Gonzalez and Warwick in the van. Hunte registered for a motel room for herself and Richards, while Gonzalez and Warwick registered for another room. Richards paid all expenses, including the motels, throughout the trip.

The next morning, March 25, 1997, the group awoke and continued to New York. In Illinois, state police pulled the minivan over and a search revealed the bundles of marijuana. Warwick and Gonzalez admitted they were following another car, and based on the information they supplied, the police radioed ahead and were able to pull over Hunte and Richards. Before they were stopped by police but after the minivan had been pulled over, Hunte and Richards had switched positions so that Hunte was driving. Hunte and Richards initially denied that they were traveling with the minivan and told police they had been traveling around the Midwest looking for farm equipment for Richards’ Jamaican chicken farm. As their grasp of basic geography deteriorated, so did their cover story. Police matched fingerprints on the marijuana to Richards, but not to Hunte.

B. The Trial and Sentence

Richards, Warwick and Gonzalez pleaded guilty to conspiracy and possession with intent to distribute almost 45 kilograms of marijuana. Hunte, like the others, was charged with conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846; and possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1). Gonzalez and Warwick agreed to testify against Hunte at trial in exchange for one-third off their sentences. At trial, Hunte’s primary defense was that she never possessed the marijuana because Richards was in charge and only he, Gonzalez and Warwick ever handled the bundles. Further, she contended that she was not a part of the conspiracy because she did not stand to gain from it.

The jury had difficulty with the concept of possession and sent a question to the judge asking for a clarification of the legal definition of constructive possession. Judge Stiehl referred the jury to the jury instructions, but otherwise provided no additional help. The jury found Hunte guilty on both counts.

At sentencing, Judge Stiehl denied Hunte reductions for acceptance of responsibility or for her minor or minimal role in the crimes. The court found that Richards was the leader of the group but that Hunte “actively participated” by driving the vehicle, making hotel reservations and providing cover for Richards. The court stated that it found nothing to justify either a minor or minimal role on Hunte’s part. Hunte had no prior juvenile or adult criminal history and, therefore, qualified for a criminal history category of I. The total offense level for two counts was 20, which translated to a Guidelines range of thirty-three to forty-one months. Finding no aggravating circumstances, Judge Stiehl sentenced Hunte on October 8, 1997, to the bottom of that range.

II. Analysis

On appeal, Hunte raises two challenges. First, she contends that her involvement in *691the crimes was too insubstantial to support either the conspiracy or the possession charges. Secondly, she challenges the trial court’s denial of a reduction under § 3B1.2, which permits a two- or four-level reduction (potentially up to twelve months in Hunte’s case) if the defendant played only a minor or minimal role in the offense.

In reviewing a jury’s determination for sufficiency of the evidence, the court must view the evidence in the “light most favorable to the prosecution.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Boykins, 9 F.3d 1278, 1282 (7th Cir.1993). The court then asks whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. The denial of a downward departure under § 3B1.2 “will be affirmed if it results from a proper application of the sentencing guidelines to facts not found to be clearly erroneous.” United States v. Herrera, 878 F.2d 997, 1000 (7th Cir.1989); see also United States v. Hagan, 913 F.2d 1278, 1283 (7th Cir.1990).

A. Sufficiency of the Evidence

1. Conspiracy

Conspiracy under 21 U.S.C. § 846 requires that the Government establish the existence of an agreement between two or more persons “for the purpose of committing, by their joint efforts, a criminal act.” United States v. Campbell, 985 F.2d 341, 344 (7th Cir.1993). The Government must show a “participatory link” between the conspiracy and the defendant. United States v. Navarez, 954 F.2d 1375, 1380-81 (7th Cir.1992). That link must be established by sufficient evidence demonstrating that the defendant knew of the conspiracy and intended to join its criminal purpose. Id. However, unlike liability for attempt, conspiracy liability does not require evidence of an overt act by the defendant, see United States v. Shabani, 513 U.S. 10, 15, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994), United States v. Pulido, 69 F.3d 192, 208-09 (7th Cir.1995), and the phrase “participatory link” should not be confused in that way. Rather, the link simply provides a way to show that the defendant joined the conspiratorial agreement.

The evidence of Hunte’s involvement in the conspiracy is slight. She appeared to have no role in planning the trip or securing any of the things necessary for its completion, such as the vehicles, cash or cohorts. She seemed to have no express understanding with Richards as to her involvement in the plan or share of the proceeds. She had no express responsibilities, did not negotiate the drug transaction and apparently was not needed to handle, weigh or transport the drugs.

However, the jury may consider “overt acts in furtherance of the conspiracy as circumstantial evidence establishing knowing participation in a conspiracy.” United States v. Burrell, 963 F.2d 976, 988 (7th Cir.1992). The evidence shows that Hunte knew of the conspiracy’s existence, as she spent several days traveling from New York to Arizona where the group picked up a large load of marijuana, sampled it, hid it in the minivan and returned toward New York. The question is whether she intended to join its criminal purpose and the bare overt acts committed in furtherance of the conspiracy establish that intent. For instance, a jury could find a participatory link between Hunte and the conspiracy from Hunte’s closing the window blinds to hide their activities from view, helping to roll a joint for sampling, registering for the hotel room where the group rested, driving one of the vehicles used for transportation of the co-conspirators, and lying to police about their destination and about their association with Warwick and Gonzalez. The fact that she did not expect to share directly in the proceeds of the crime does not defeat a finding of knowing participation. A criminal without a profit motive is still a criminal as long as all elements of the crime are established.

*692 2. Possession

Possession with intent to distribute marijuana requires the Government prove beyond a reasonable doubt that Hunte 1) knowingly or intentionally possessed the marijuana, 2) possessed the marijuana with the intent to distribute it and 3) knew the marijuana was a controlled substance. See United States v. Hunter, 145 F.3d 946, 950 (7th Cir.1998). The first element, possession, can be satisfied by direct or circumstantial evidence of constructive or joint possession., See United States v. Tirrell, 120 F.3d 670, 675-76 (7th Cir.1997); United States v. Kitchen, 57 F.3d 516, 520-21 (7th Cir.1995). Constructive possession applies when “a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir.1990) (emphasis omitted); see also United States v. DiNovo, 523 F.2d 197, 201 (7th Cir.1975).

Hunte challenges her conviction on the theory that she did not exercise “dominion and control” over the marijuana because at all times Richards, as the group’s leader, had exclusive control over the contraband. DiNovo stands for the proposition that “mere proximity to the drug, mere presence on the property where it is located, or mere association, without more, with the person who does control the drug or the property on which it is found, is insufficient .to support a finding of possession.” DiNovo, 523 F.2d at 199. This line of cases protects the “ordinary bystander” who happens to be unlucky enough to be near someone who possesses contraband. United States v. Windom, 19 F.3d 1190, 1200 (7th Cir.1994). To this end, we have required that in non-exclusive possession cases, the evidence must show some nexus between the defendant and the drugs. See United States v. Hernandez, 13 F.3d 248, 252 (7th Cir.1994); United States v. Perry, 747 F.2d 1165, 1171-72 (7th Cir.1984); United States v. Galiffa, 734 F.2d 306, 316 (7th Cir.1984).

Galiffa appears especially instructive in this case. In Galiffa, Stuart Ashenfelter and Thomas Galiffa rented a truck, Ashen-felter bought some boxes and the two drove to a forest preserve. Ashenfelter then proceeded alone to a hiding place where he retrieved the marijuana. He picked up Galiffa in the forest preserve and the two returned to their house. While Ashenfelter, Galiffa and another man were unloading the contraband, they were arrested. Galiffa challenged the sufficiency of the evidence on his conviction for possession. Galiffa argued that his mere presence in the truck, presence at the rear of the truck during unloading and flight from law enforcement officers were insufficient to establish his possession of the marijuana or his knowledge of the contents of the packages. This court held that “[r]esidence in a house used as a drug distribution center, and evidence of direct access to and participation in the marijuana distribution on the day of his arrest is enough to establish this nexus and, therefore, marijuana possession under 21 U.S.C. § 841(a).” Id. at 315.

As convincing as the proof against Galif-fa, the evidence against Hunte more than substantiates the nexus between her and the contraband. There can be no doubt of her knowledge of the marijuana since she was present when it was delivered, unloaded, sampled and loaded. Although the evidence of her direct access to the drugs and participation in the transportation is minimal, it can hardly be said that she was in any sense an ordinary bystander. She registered for the hotel room, drove at least one of the vehicles, helped hide their activities from view and aided in the sampling of the drugs. She can no more claim to be a mere bystander than could Thomas Galiffa.

Hunte points to our decision in Kitchen as support for the argument that mere association or presence is insufficient to establish constructive possession. In *693 Kitchen, we dealt with two factual scenarios that implicate constructive possession. First, we held that proof of a defendant’s access to a firearm, even when others also had access, was sufficient to allow a jury to find constructive possession. Kitchen, 57 F.3d at 521. In Kitchen, a firearm had been found in the bedroom of a house where the defendant occasionally stayed overnight. Evidence in that case, including the fact that the defendant resided at the house and that the room contained other possessions belonging to the defendant, established a nexus between the defendant and the firearm. Id. The fact that other adults likewise had access to the house did not negate a finding of constructive possession. Id. Here, the fact that Richards and the other two defendants had access to and possession of the marijuana did not defeat an inference that Hunte also possessed the marijuana since she too had knowledge of and access to it.

Hunte understandably focuses on the second holding of Kitchen in which we reversed a conviction for cocaine possession where the defendant had picked up the contraband for no more than two or three seconds. Id. at 521-24. We held that on a theory of actual possession, a momentary handling'of the cocaine did not show automatically that the defendant had control over the contraband. Id. In contrast to the prototypical constructive possession case, which allows a conviction by showing a defendant controlled the contraband even if she never physically touches it, Kitchen says that a physical handling of contraband is not enough if it fails to demonstrate control. Both theories of possession require the defendant control the contraband to possess it, although that control is obvious in most actual possession cases.

While Kitchen correctly states the doctrines of constructive and actual possession, the analysis of that case does not help Hunte. Hunte argues that no evidence shows “she ever touched the bundles of marijuana,” but that argument only refutes actual possession and is not dispos-itive of constructive possession. Hunte further argues that only Richards had constructive possession of the marijuana, as shown by his offer to pay Gonzalez from-the stash and to let Hunte sample some of it. While those facts provide strong evidence that Richards exercised control over the drugs, it does not necessarily mean Hunte and the others did not jointly possess them as well. As discussed above, control need not be exclusive.

The evidence showed that all four defendants were engaged in a plan to transport narcotics and that Richards was the leader of the group. The fact that one person leads and the others follow does not mean that only the leader has possession of the contraband. All four had access to the drugs at various times and assisted in their concealment and transportation. As a group, the four each exercised joint possession of the narcotics by virtue of their individual acts consistent with non-exclusive dominion and control over the contraband.

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find Hunte guilty on both the conspiracy and possession counts. Therefore, we will affirm her convictions.

B. Sentencing Guidelines § 3B1.2

We review a district court’s refusal to give a downward adjustment based on § 3B1.2 for clear error, remembering however that the defendant has the burden of establishing his minor or minimal status in the crime by a preponderance of the evidence. See United States v. Cain, 155 F.3d 840, 844 (7th Cir.1998); United States v. Castillo, 148 F.3d 770, 776 (7th Cir.1998). According to the Guidelines notes and our cases applying this section, a minimal participant is one who is “plainly among the least culpable of those involved in the conduct of a group,” § 3B1.2 application note 1; see also Castillo, 148 F.3d at 776. The departure for minimal participants was intended to be used “infrequent*694ly.” § 3B1.2 application note 2. A minor participant means “any participant who is less culpable than most other participants, but whose role could not be described as minimal.” § 3B1.2 application note 3; see also Castillo, 148 F.3d at 776.

At the very least, we find that Hunte was a minor participant in that she was less culpable than most other participants. Hunte may in fact have been a minimal participant. The difference between minor and minimal depends on how the sentencing judge views the guilty conduct of the other participants. The former requires “less culpable than most” while the latter asks for “plainly among the least culpable.”

These are not precise terms, but the suggestions that accompany the guidelines are helpful, as are comparisons to some of other cases interpreting this section. A minimal participant is one who unloaded a single shipment of marijuana in a large-scale smuggling operation, or once acted as a courier in a small smuggling operation. Application Note 2. Both examples suggest a participant who played a role necessary to the, accomplishment of the crime.

In Castillo, we affirmed the trial court’s denial of a reduction for a minor role because we found that each of the five charged defendants “was an essential component in this drug conspiracy.” 148 F.3d at 776. For instance, one defendant provided a place for the smugglers to sleep, while another re-wrapped the marijuana. Id. None were entitled to the reduction. Id. Likewise, we affirmed the reduction denial in Cain, where the defendant “provided necessary services to the conspiracy by driving [a co-defendant], renting the car used to deliver drugs, and renting the apartment used to store them.” 155 F.3d at 844.

While “minor” is .not necessarily synonymous with “nonessential,” Hunte’s participation seems to fall well below the threshold established by the comments and cases interpreting § 3B1.2. Hunte helped hide the groups activities by closing the blinds, and registered for a motel room, but she was in no sense a courier nor did she help load or unload the drugs. She provided nothing “necessary” or “essential” to the operation.

Hunte unquestionably is less culpable than Gonzalez and Richards, who both stood to profit from the deal. Richards was the ring leader responsible for the entire operation, including arranging to meet the supplier and finishing the deal. Gonzalez came along only because he expected to participate in the deal as a vital player, a role that could be described loosely as a partner. Further, he carried the bundles of marijuana, helped with its packaging and helped drive the minivan.

The Government correctly points out that there were other participants, specifically the unnamed contacts and dealers in Arizona, but Hunte appeared less culpable than even these players. Although financial gain should not be the only, or even the dominant, factor in determining culpability under § 3B1.2, the Arizona contacts held much more critical and culpable positions in the deal. They were the suppliers who formed an integral link in the chain of drug trafficking that extends from growers to street dealers. Without them, there was no deal.

Only Warwick may have been less culpable than Hunte, but even he expected some financial reward'—Richards’ debt paid to Warwick’s landlord-—-and he helped carry the bundles into the house and tended to the packaging and testing. By definition, Hunte appears to be “among the least culpable” even if Warwick and she were equally culpable.

Clear error exists when, after reviewing the evidence, the court is “left with the definite and firm conviction that a mistake has been committed.” Herrera, 878 F.2d at 1000. This is such a case. The evidence establishing Hunte’s conviction, while sufficient, fails to show her participating in anything other than a minor or *695minimal way. The offense definitions under §§ 841 and 846 do not ask or care whether a defendant’s participation was minor or major, but the Sentencing Guidelines do. Here, we find the evidence indicates Hunte’s role qualified her for at least a two-level reduction as a minor participant, although we leave it to the sound discretion of the trial court to determine whether she qualifies for a four-level reduction.

III. Conolusion

We find that the evidence supports the defendant’s conviction for conspiracy and possession with intent to distribute narcotics and Affirm her convictions. Because the sentencing court erred in rejecting a § 3B1.2 reduction, we Remanb the case to the district court for prompt re-sentencing consistent with this opinion.

QUINCE, J.

We have for review the decision in Garcia v. State, 854 So.2d 758 (Fla. 2d DCA 2003), which certified conflict with the decision in Goodman v. State, 839 So.2d 902 (Fla. 1st DCA 2003). We have jurisdiction. See art. Y, § 3(b)(4), Fla. Const. For the reasons more fully expressed below, we quash the decision of the Second District Court of Appeal, and approve Goodman.

FACTS

The facts of this case are thoroughly set forth in the Second District’s decision as follows:

In the early morning hours on June 9, 2001, Pasco County Deputy Sheriff Joseph Irizarry observed Garcia driving a truck. Garcia’s vehicle first came to Deputy Irizarry’s attention when it passed through a flashing yellow light without slowing down. Thereafter, Deputy Irizarry saw Garcia’s vehicle go off the road while making a right-hand turn and then weave off the roadway onto the grassy shoulder three times. After observing this behavior and following Garcia’s vehicle for approximately a quarter of a mile, Deputy Irizarry decided to stop Garcia’s vehicle.

After the vehicle stopped and Deputy Irizarry approached the driver’s window of the vehicle, he smelled alcohol and observed that Garcia’s eyes were bloodshot and that Garcia’s speech was slurred. Garcia was alone in the truck. Deputy Irizarry proceeded to conduct field sobriety tests. After conducting the tests, Deputy Irizarry arrested Garcia for driving under the influence.

In the meantime, Deputy Wilkins and Deputy Banner arrived at the scene. In the course of searching Garcia’s truck incident to his arrest, Deputy Wilkins found an item — which looked like a softball wrapped in black electrical tape— underneath the passenger’s seat of Garcia’s truck. Garcia told the deputies at the scene that he did not know what the item was, that he had not seen it before, and had not known that it was in the truck. He also stated that his truck had *790recently been stolen and that some friends had been in his truck earlier that night. Subsequent tests conducted by the FDLE crime laboratory determined that an off-white powder contained within the item was a mixture containing methamphetamine and a cutting agent.

Garcia was charged by information with trafficking in methamphetamine, driving under the influence, and obstructing or resisting an officer without violence. In his testimony at trial, Garcia stated that the night of his arrest he had the truck at a party from about 7:00 p.m. until 2:00 a.m. His truck was used at the party for playing CDs. Garcia also used the truck on two occasions during the party to take friends to buy beer. Garcia denied using drugs. He testified that he did not put the tape-covered item in the truck, know it was there, or know what it contained. Finally, Garcia testified that his truck had been stolen on Wednesday, May 31, from a shop where he had taken it. The truck was recovered the following Monday in a dirty condition and containing items that did not belong to Garcia. After recovering the truck, he returned it to the shop for the installation of a stereo. When he later picked up the truck, it was clean.

Garcia was found guilty of the driving under the influence charge and guilty of the lesser-included crime of possession of methamphetamine on the trafficking offense. He was found not guilty of the obstructing or resisting charge.

During the trial, at the close of the State’s evidence and at the close of all the evidence, Garcia moved for a judgment of acquittal on the trafficking charge pursuant to Florida Rule of Criminal Procedure 3.380(a). The motion was denied.

Id. at 760-61. At the jury charge conference, Garcia objected to the standard jury instruction that permitted the jury to infer or assume knowledge of the presence of the methamphetamine based on exclusive possession. The trial court overruled the objection, rejected Garcia’s proposed special instructions, and read the standard instructions on trafficking. In listing the elements of trafficking, the trial court instructed the jury that “the defendant’s knowledge ‘that the substance was methamphetamine or a mixture containing methamphetamine’ was a material element of the offense of trafficking.” Id. at 764 (emphasis added). The trial court also instructed the jury concerning actual and constructive possession and stated as follows:

If a thing is in a place over which the person does not have control, in order to establish constructive possession, the State must prove the person has control over the thing, knowledge of the thing which was in the person’s presence, and the knowledge of the illicit nature of the thing.

Id. at 765 (alteration in original). The trial court then gave an instruction on the elements of the lesser included offense of simple possession. That instruction omitted any reference to the requirement that the defendant have knowledge of the illicit nature of the substance. However, the trial court did state that the prior instruction regarding the “definition of possession ... applies to the lesser charge as it did to the greater charge.” Id. at 765. Garcia did not object to the failure to include the element of “knowledge of the illicit nature of the substance” in the jury instruction on the lesser included offense of possession.

During deliberations, the jury submitted a question to the court: “What is the difference between trafficking and possession of methamphetamine?” The court then reread the instructions on possession and trafficking, but not the instructions concerning actual and constructive possession. The jury acquitted Garcia of trafficking but found him guilty of the lesser included offense of possession. Garcia re*791newed his motion for judgment of acquittal and moved for a new trial. Both motions were denied.

Garcia raised several claims on appeal. The district court summarily denied all but the following two claims: (1) the trial court erred when it denied Garcia’s motion for judgment of acquittal based on his contention that there was insufficient evidence to establish knowledge of the illicit nature of the substance, and (2) the trial court erred in giving a jury instruction on the lesser included offense of possession that did not include the “knowledge of the illicit nature of the substance” element, i.e., the “guilty knowledge element.”

The district court held that the illicit nature of the substance is an indisputable element of the crime of drug possession pursuant to Chicone v. State, 684 So.2d 736, 737 (Fla.1996) (holding that guilty knowledge is an element of possession of a controlled substance and possession of drug paraphernalia). The district court rejected the State’s argument that the holding in Chicone was superseded by section 893.101, Florida Statutes (2002). That statute provides that knowledge of the illicit nature of a controlled substance is not an element of drug offenses, but lack of knowledge is an affirmative defense. The statute became law after Garcia committed the offense in this case. The district court then concluded that the instruction given was clearly inadequate and erroneous. However, the court also found that Garcia did not request an instruction concerning guilty knowledge with regard to the possession offense, nor did he object to the trial court’s failure to give such an instruction. The error was not preserved, and the district court found that it was not fundamental. On this issue, the Second District certified conflict with Goodman, which holds that when a defendant denies knowledge of the presence of an illegal substance, he or she automatically places into dispute any knowledge of the illicit nature of the substance.

Law and Analysis

In 1973, this Court established a presumption of the scienter element of drug charges arising from actual possession. See State v. Medlin, 273 So.2d 394 (Fla.1973). In Medlin, the defendant gave a capsule to another person, and 'it contained an illegal substance. Despite the fact that Medlin told the other person that the capsule would make her “go up,” Medlin argued that there was no proof at trial to show that he delivered the capsule with knowledge that it contained a barbiturate. Medlin was convicted of delivery of an unlawful barbiturate. The district court reversed the conviction finding that there was no proof adduced to show that Medlin delivered the capsule with knowledge that it -contained a barbiturate or barbiturate derivative. On review, this Court quashed the district court’s decision and held that the State was not required to prove knowledge or intent since both were presumed from the doing of the prohibited act. The standard jury instructions for the crime of possession — the relevant crime in this case — were then adopted. In the instruction, knowledge of the presence of the substance was listed as an element, and the Medlin presumption was incorporated into that instruction by the following language: “If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed.” However, the instruction did not list knowledge of the illicit nature of the substance as an element. An accompanying note to the instruction stated that “[i]f the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required.” Fla. Std. Jury Instr. (Crim.) Drug Abuse (1981).

In 1987, this Court addressed whether the jury instructions on trafficking of*792fenses were erroneous because they did not include knowledge of the nature of the substance as an element. See State v. Dominguez, 509 So.2d 917 (Fla.1987). The Court found, under the relevant statutes at the time, that mens rea was an element of all trafficking charges. The Court then expressly amended the jury instructions on trafficking offenses to include a fourth element: that the defendant “knew the substance was (specific substance alleged).” Id. at 918.

In 1996, the Court applied the rationale of Dominguez to possession offenses. See Chicone v. State, 684 So.2d 736 (Fla.1996). In Chicone, the defendant was convicted of possession of cocaine. The trial court refused Chicone’s request to instruct the jury that the State had to prove he knew the substance he possessed was cocaine. On review, this Court held that guilty knowledge is part of the statutory offense charged. Id. at 738. The Court rejected the argument that Medlin stood for the proposition that guilty knowledge is not an element of possession and held that the relevant statutes expressly required that the defendant knowingly possess a controlled substance. In Chicone, the State was required to prove the defendant knew of the illicit nature of the items in his or her possession, and the existing jury instructions had to adequately state the “knowledge of the presence of the substance” element Id. at 745 (emphasis added). However, the trial court was only required to “expressly indicate to jurors that guilty knowledge means the defendant must have knowledge of the illicit nature of the substance allegedly possessed” if “specifically requested by a defendant.” Id. at 745-46.

Chicone did not address whether an error in failing to give such a requested instruction is reviewable under a harmless error analysis or whether it is fundamental error. That issue was addressed in Scott v. State, 808 So.2d 166 (Fla.2002). In Scott, the defendant was convicted of possession of contraband (cannabis) in a correctional facility. At trial, Scott’s defense was that he did not possess the contraband and had no knowledge of its presence in his locker, where it was found. He requested an instruction pursuant to Chicone that the guilty knowledge element includes knowledge of the illicit nature of the substance. The trial court denied the request. On review, this Court held that the trial court’s failure to give the requested instruction was reversible error. This Court explained that the Chicone decision stood for the proposition that both knowledge of the presence of the substance and knowledge of the illicit nature of the substance are essential elements of the crime of possession of an illegal substance. Id. at 169. The Court then found that the standard jury instructions on possession were inadequate as they did not inform the jury of the illicit nature of the substance requirement of the guilty knowledge element. Id. at 170. This Court further found that it is error to fail to give the requested instruction even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance. Id. at 172.

The defendant in Scott was not in actual, personal possession of the drugs, and the testimony indicated that his locker may have been accessible to other people, which raised the question of whether exclusive constructive possession was proved. Thus in Scott, the Court found reversible error and requested the Committee on Standard Jury Instructions in Criminal Cases to propose an amendment to the jury instructions for possession offenses that would include knowledge of the illicit nature of the substance as an element. Id. at 172 n. 7.1

*793When read together, Medlin, Chicone, and Scott stand for the proposition that “guilty knowledge” is an element of the offense of possession and must be proven beyond a reasonable doubt. The guilty knowledge element includes knowledge of both the 'presence of, and the illicit nature of, the substance possessed, and the jury should be instructed on both. When requested by the defendant, it is error for the trial court to fail to instruct the jury on the guilty knowledge element regardless of the defense, even when the State’s case supports the Medlin presumption of knowledge. See Scott, 808 So.2d at 171. The error has been found harmful in cases where evidence tending to negate the Medlin presumption was presented. See Scott, 808 So.2d at 172.

Although we find that it was error for the trial court to fail to instruct the jury on the guilty knowledge element regardless of the defense,2 the error was not preserved. Therefore, we must determine whether such error is fundamental and per se reversible.

In deciding whether the failure to instruct that knowledge of the illicit nature of the substance is an element of the offense of possession is fundamental error, we consider State v. Delva, 575 So.2d 643 (Fla.1991). Delva was convicted of trafficking in cocaine. Delva’s defense at trial was that he did not know the package of cocaine was in his car. There was no suggestion, however, that Delva did not know that the substance inside the package was cocaine. Because Delva did not argue that he had no knowledge of the illicit nature of the substance, this Court found that the failure to instruct the jury on that element of the crime could not be fundamental error and could only be preserved for appeal by a proper objection. Specifically, this 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 preservéd 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 *794he 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.

WELLS, J.,

dissenting.

I dissent. With regard to the certified conflict, I would approve the Second District’s decision below; disapprove Goodman v. State, 889 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 Chicone3 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 area of the law, a brief historical review is necessary. In 1973, State v. Medlin, 273 So.2d 394 (Fla.1973), established a presumption, arising from actual possession, of the scienter element of drug charges. In Medlin, the defendant was convicted of unlawful delivery of a barbiturate. It was undisputed that he gave another person a barbiturate capsule, stating that it would make her “go up.” On appeal, the district court reversed the conviction because no proof was adduced at trial to show that the defendant delivered the capsule with knowledge that it contained a barbiturate. However, on review, this Court quashed the district court’s decision, holding:

Proof that defendant committed the prohibited act raised the presumption that the act was knowingly and intentionally done ...

.... [T]he State was not required to prove knowledge or intent since both were presumed from the doing of the prohibited act.

Id. at 397. Importantly, the Court limited this presumption by distinguishing Med-lin’s case, which involved actual possession, *795from other cases in which possession was constructive. Id. at 395-96.

Sometime after Medlin, the standard jury instruction for the offense of possession, the relevant offense in the instant case, was first adopted. Knowledge of the presence of the substance was listed as an element, and the Medlin presumption was incorporated by the following additional language: “If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed.” Fla. Std. Jury Instr. (Crim.) Drug Abuse (1981). The instruction did not, however, list knowledge of the illicit nature of the substance as an element. An accompanying “Note to Judge” simply stated, “If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required. See State v. Medlin, 273 So.2d 394 (Fla.1973).” Id. This note provided little guidance to the courts regarding what that instruction should be because Medlin did not address jury instructions.

Thereafter, in State v. Dominguez, 509 So.2d 917 (Fla.1987), this Court addressed whether the jury instructions on trafficking offenses were erroneous because they did not include knowledge of the nature of the substance as an element. The Court found, under the relevant statutes at the time, that mens rea was an element of all trafficking charges. Id. at 918. The Court then expressly amended all jury instructions on trafficking offenses to include a fourth element: that the defendant “knew the substance was (specific substance alleged).” Id. at 918. The Court did not address, however, whether the same applied to possession offenses.

That issue came before the Court in 1996, in Chicone v. State, 684 So.2d 736 (Fla.1996). In Chicone, the trial court denied Chicone’s request to instruct the jury that a charge of possession of cocaine required the State to prove that the defendant knew the substance he possessed was cocaine. On review, this Court held that “guilty knowledge is part of the statutory offense charged.” Id. at 738. In a lengthy opinion, the Court first rejected the argument that Medlin stood for the proposition that guilty knowledge is not an element of possession, stating:

We held in Medlin ... that the State established a prima facie case and sufficient proof that the “defendant was aware of-the nature of the drug” to get the case to the jury. That’s a far cry from holding that guilty knowledge is unnecessary.... Medlin stands for the proposition that evidence of actual, personal possession is enough to sustain a conviction.

Id. at 739. Next, the Court cited favorably to the decision in State v. Oxx, 417 So.2d 287 (Fla. 5th DCA 1982), which acknowledged that the relevant statutes did not expressly require “knowing” possession of a controlled substance but concluded that the State must still prove general intent. The Court also reviewed and rejected a principle of statutory construction that the Legislature need not require proof of intent in codifying crimes mala prohibita. The Court then concluded that the relevant statutes “are more akin to offenses that presume a scienter requirement” because of the substantial criminal penalties imposed, Chicone, 684 So.2d at 742-43, and held:

We believe it was the intent of the legislature to prohibit the knowing possession of illicit items and to prevent persons from doing so by attaching a substantial criminal penalty to such conduct. Thus, we hold that the State was required to prove that Chicone knew of the illicit nature of the items in his possession.

Id. at 744. The Court further wrote, ‘While the existing jury instructions are adequate in requiring ‘knowledge of the *796presence of the substance/ we agree that, if specially requested by a defendant, the trial court should expressly indicate to jurors that guilty knowledge means the defendant must have knowledge of the illicit nature of the substance allegedly possessed.” Id. at 745-46 (emphasis added). In conclusion, the Court held that the trial court erred in denying Chicone’s request and, without engaging in harmless error analysis, remanded the case for further proceedings consistent with its opinion.

In a final footnote to Chicone, the Court suggested its holding was an appropriate subject to be addressed by the Committee on Standard Jury Instructions in Criminal Cases. Id. at 746 n. 14. Later, in In re Standard Jury Instructions in Criminal Cases (97-1), 697 So.2d 84, 85-87 (Fla.1997), the Court adopted amendments proposed by that committee which inserted a fourth element of knowledge of the nature of the substance into the jury instructions on trafficking offenses and added the following language to the definition of “possession” within those instructions:

Give if applicable. See Chicone v. State, 684 So.2d 736 (Fla.1996).

If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing, (2) knowledge that the thing was within the person’s presence, and (3) knowledge of the illicit nature of the thing.

Id. - at 87. However, despite that Chicone specifically addressed a challenge to the jury instructions on a-possession charge, the same amendments were not made to the standard jury instructions for possession offenses.

After Chicone, confusion remained regarding the standard jury instructions for possession offenses, and the issue returned to this Court three years later in Scott v. State, 808 So.2d 166 (Fla.2002). In Scott, the defendant was convicted of possession of contraband in a correctional facility. At trial, Scott’s theory of defense had been that he did not possess the contraband and had no knowledge of its presence in his locker where it was found. He requested an instruction pursuant to Chicone that the guilty knowledge element includes knowledge of the illicit nature of the substance. The trial court denied the request. On appeal, Scott argued that because the burden was on the State to prove he knew the substance was cannabis even if he had not raised the issue at trial, the trial court erred in failing to give the instruction. The district court disagreed. See Scott v. State, 722 So.2d 256 (Fla. 5th DCA 1998), quashed, 808 So.2d 166 (Fla.2002). But on review, this Court agreed with Scott and held that the trial court’s denial of the requested instruction was reversible error. Scott, 808 So.2d at 172.

In the Scott decision, this Court initially reviewed Chicone and noted that that decision “clearly said both knowledge of the presence of the substance and knowledge of the illicit nature of the substance are essential elements of the crime of possession of an illegal substance.” Id. at 169. The Court then wrote, “It is implicit in this holding that the standard jury instructions on possession do not adequately inform the jury of the ‘illicit nature of the substance’ requirement of the guilty knowledge element.” Id. at 170. Turning to the case at hand, the Court addressed the argument that the trial court did not err in denying the requested instruction because Scott did not specifically dispute that element. The Court wrote:

The rationale that Scott’s defense is internally inconsistent is flawed and appears to be premised on a proposition that we rejected in' Chicone, that is, that the defendant has the burden to put forth evidence on this issue. As we previously said and reiterate here, guilty knowledge of the illicit nature of the *797possessed substance is an element of the offense of possession of a controlled substance. The State has the burden of proof in any prosecution to demonstrate each element of the offense beyond a reasonable doubt. Since knowledge is an element of the offense, the State has the burden of proving the defendant’s possession was knowing. See Jackson v. State, 575 So.2d 181 (Fla.1991); Butler v. State, 715 So.2d 339 (Fla. 4th DCA 1998). Since knowledge is an element of the offense, the State has the burden of proving the defendant’s possession was knowing. Moreover, the jury is entitled to be instructed on the elements of an offense. In Gerds v. State, 64 So.2d 915 (Fla.1953), we held:

It is an inherent and indispensable requisite of a fair and impartial trial under the protective powers of our Federal and State Constitutions as contained in the due process of law clauses 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.

Id. at 916. See also State v. Delva, 575 So.2d 643 (Fla.1991). Since the jury is entitled to be instructed on the elements of the offense, it' cannot be harmless error to fail to do so especially when the omission is brought to the attention of the trial court by the defendant.

Id. at 170-71. Following this passage, the Court added:

Furthermore, Scott is not arguing two alternative defenses, as the Fifth District suggests. Rather, it is a single argument that he did not possess the drugs. 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. With this kind of argument and defense, each element of the offense is a disputed element on which the jury must be instructed. Moreover, the requirement that an instruction must be given does not depend on the defense espoused. Because knowledge of the illicit nature is an element of the crime and the jury must be instructed on each element of the crime; an instruction must be given even when the defendant simply requires the State to prove its case and offers nothing by way of an affirmative defense.

Id. at 172 (citation omitted). A close reading of these two passages reveals that the Court’s holding in Scott was, as stated in the conclusion, that the trial court erred in denying the requested instruction because “[i]t is error to fail to give 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 171-72.4

*798Since 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 “[flailing 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 “[i]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 *799elements 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, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” Stewart v. State, 420 So.2d 862, 863 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983). 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.

Id. at 644-45. Turning to the facts of Delva, the Court noted that Delva presented testimony that the vehicle was jointly owned by himself and his fiancée and his brother had driven it on the day of the arrest, and Delva’s defense at trial was that he did not know of the presence of the cocaine. The Court then held:

There was no suggestion that Delva was arguing that while he knew of the existence of the package he did not know what it contained. Hence, the issue which was raised in Dominguez and corrected by the addition to the standard jury instruction was not involved in Delva’s case. Because knowledge that the substance in the package was cocaine was not at issue as a defense, the failure to instruct the jury on that element of the crime could not be fundamental error and could only be preserved for appeal by a proper objection.

Id. at 645. In short, the Court concluded that Delva’s defense that he did not have knowledge of the presence of the cocaine did not also place into dispute the element of knowledge of the illicit nature, and therefore the error in failing to instruct the jury on that element was not fundamental.

Every district court that has considered the issue of whether fundamental error resulted from a trial court’s failure to instruct that knowledge of the illicit nature of the substance is an element of the offense of possession has applied, on a case-by-case basis, the principle set forth in Delva that “[flailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error.” 575 So.2d at 645; see Barnes v. State, 864 So.2d 1200 (Fla. 1st DCA 2004) (fundamental error where defendant specifically contested knowledge of illicit nature); Mathis v. State, 859 So.2d 1265 (Fla. 4th DCA 2003) (no fundamental error where knowledge of illicit nature not at issue); Jones v. State, 857 So.2d 969 (Fla. 2d DCA 2003) (fundamental error where defendant’s claim that cocaine residue was so minor as to not be usable or effectively measured constituted dispute regarding knowledge of illicit nature); Starling v. State, 842 So.2d 992 (Fla. 1st DCA 2003) (no fundamental error where defendant only contested identity); Rhinehart v. State, 840 So.2d 456, 457 (Fla. 4th DCA 2003) (no fundamental error where defendant “did not present any evidence or argue that he did not know the illicit nature of the substance”); Davis v. State, 839 So.2d 734 (Fla. 4th DCA 2003) (no fundamental error where defendant only contested identity); Ozell v. State, 837 So.2d 559 (Fla. 3d DCA 2003) (no fundamental error where defendant only con*800tested identity); Lee v. State, 835 So.2d 1177 (Fla. 4th DCA 2002) (no fundamental error where defendant denied knowledge of presence of marijuana); Johnson v. State, 833 So.2d 252, 253 (Fla. 4th DCA 2002) (fundamental error where defendant contested knowledge of “illegality of the substance”); Blunt v. State, 831 So.2d 770 (Fla. 4th DCA 2002) (fundamental error where defendant denied knowledge of pill bottle and crack cocaine, and State argued defendant had knowledge of substance because it had been in his hand and he exchanged it for money). Similarly, the Second District applied the same principle below in analyzing whether fundamental error occurred in Garcia’s trial. I agree with the majority of this Court that the application of that principle to this case was proper.

However, the point of divergence between the majority and myself, as well as between district court decisions addressing claims similar to Garcia’s, stems from the reasoning in Delva that a theory of defense contesting knowledge of the presence of a substance does not also place into dispute knowledge of the illicit nature of that substance. In the instant case, citing Delva, the Second District found no fundamental error where Garcia’s theory of defense was that he had no knowledge of the existence of the cocaine found in his vehicle. Similarly, the Fourth District implicitly agreed with Delva’s reasoning when in Lee v. State it found no fundamental error where a defendant’s defense had been that he had no knowledge of the package of contraband found in his vehicle. 835 So.2d at 1177. See also Davis, 839 So.2d at 735 (rejecting application of Scott in favor of application of Delva). But in Goodman v. State, 839 So.2d 902, 903 (Fla. 1st DCA 2003), the First District, citing Scott, held that a defendant’s denial of knowledge of the presence of cannabis “placed in dispute the essential element of knowledge of the illicit nature of the substance, as well as that of knowledge of the presence of the substance” and concluded, citing Reed, that “[ajccordingly, failure to instruct the jury on the element of knowledge of the illicit nature of the substance constituted fundamental error, entitling appellant to a new trial.” This conflict between the decision below and Goodman is what the district court certified to this Court in the instant case.

As the court below correctly concluded, Scott and Delva do not conflict in their holdings because the former addresses preserved error and the latter addresses fundamental error.5 Nonetheless, there does appear to be a conflict between the holding in Delva and certain dicta in Scott. Compare Delva, 575 So.2d at 645 (no fundamental error resulted because defendant disputed knowledge of presence of substance but not knowledge of illicit nature of substance), with Scott, 808 So.2d at 171 (“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.”). To be clear, however, the certified conflict to be addressed by this Court is not the apparent conflict between the holding in Delva and dicta in Scott. Rather, the Second District has correctly certified conflict between the decision below and the Goodman decision on the issue of whether the reasoning of Scott or the reasoning of Del-va is applicable where a defendant’s theory *801of defense against a charge of possession was lack of knowledge of the presence of the substance. The Second District followed the reasoning of Delva in the decision below, whereas the First District followed the reasoning of Scott in Goodman.

I would approve the Second District’s decision below, disapprove the Goodman decision, and hold that in cases where a defendant’s theory of defense was lack of knowledge of the presence of the substance, the reasoning in Delva, that a theory of defense contesting knowledge of presence does not also place into dispute knowledge of the illicit nature, should be applied. In so doing, I would recede from the statement in Scott 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.” 808 So.2d at 171. That statement was mere dicta, included to support the Court’s conclusion that “the requirement that an instruction must be given does not depend on the defense espoused.” 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.

PER CURIAM.

h Defendant was charged by bill of information with possession of marijuana with intent to distribute in violation of La.R.S. 40:966(A)(1). After trial in which defendant represented himself until he fled during a recess following the state’s case in chief, a jury returned a verdict of guilty as charged.1 The court eventually reacquired defendant’s presence and sentenced him to eight years imprisonment at hard labor. On appeal, the Second Circuit reversed his conviction and sentence on grounds that the state’s evidence failed to prove that he had constructive possession of the marijuana found in the trailer of an 18-wheel truck he had driven from California into Louisiana where it was stopped in Caddo Parish en route to | ¡.either Pennsylvania or New York. State v. Pigford, 39,-306 (La.App.2d Cir.1/26/05), 892 So.2d 724. This Court granted review because we agree with the state that the court of appeal erred by substituting its view of the evidence for that of the jury and thereby *519revived as a basis for reversal a hypothesis of innocence advanced by defendant at trial but rationally discredited by jurors in reaching their verdict. We therefore reverse the decision below and reinstate defendant’s conviction and sentence.

The evidence adduced at trial showed the following: On September 25, 2000, a computer weight monitoring system set up on Interstate 20 in Caddo Parish by state police registered an eastbound Volvo 18-wheeler 3,000 pounds over the state weight limit of 80,000 pounds. The vehicle, driven by defendant, was directed to pull over into the nearest weigh station where the truck was weighed on the stationary scales and again registered 3,000 pounds over the legal limit. Sergeant Brierre Thomas, with the Louisiana Department of Transportation, Weights and Standard Unit, and Deputy Danny Williams, a K-9 officer with the Caddo Parish Sheriffs Office, interviewed defendant. Defendant told them that he was traveling to New York; however, the bill of lading showed that he was hauling a load of grapes from Reedley, California to Pittsburgh, Pennsylvania.

Because they were concerned about the discrepancy in the destination for the load of grapes and about defendant’s seemingly wayward route from California to either New York or Pennsylvania, Sergeant Thomas and Deputy Williams asked him to open the back of the trailer so they could see what he had as cargo. Defendant refused to open the trailer, telling the officers he was a member of the NAACP, and that he knew he had a right to refuse to allow the search.

Immediately after defendant refused to open the trailer, Sergeant Thomas called Peggy Adley, an agent with the Public Service Commission. Sergeant | Thomas testified that he called Adley because she would need to know what was in the trailer and that she would need to check defendant’s “single state registration” and insurance, and inspect his load to see if it matched his bill of lading. Officer Adley arrived and told defendant that she had the right to inspect the trailer without his consent. Defendant produced a key, unlocked the padlock, and opened the trailer’s doors. At the request of Officer Adley, Officer Thomas climbed up onto the back of the trailer to inspect the load. The officer testified that as he stood up at the back of the trailer he saw in “plain view” the end of a large package sitting on top of the boxes of grapes, less than an arm’s length from the back end of the load. Officer Thomas turned his head and asked defendant what the object was, and defendant indicated that he knew nothing about it. The officer then reached over the stacked boxes of grapes and pulled the package towards him. The package was wrapped in clear plastic wrap and duct tape; it measured approximately a foot wide and six-and-a-half to seven feet long. According to Adley, who stood outside at the rear of the truck, despite its size, the package was not visible from her vantage point when she looked through the opened doors of the trailer.

After Thomas removed the package, Deputy Williams cut a slit in the side and determined that the bundle contained marijuana. In all, the package contained approximately 52 pounds of marijuana possessing a street value of $52,000. Both officers testified at trial that the sheer amount of marijuana, its value, and the manner of its packaging, were all consistent with an intent to distribute. However, no fingerprints were found on the package and the officers had otherwise determined that defendant’s bill of lading for his cargo was in good order.

LBecause defendant fled immediately after the state presented its case in chief, he did not testify at trial and did not put on a *520defense case of his own. Nevertheless, his defense emerged in his opening remarks to jurors and in cross-examination of the state’s witnesses. Defendant urged jurors to consider that he was not off route because Interstate 20 runs to California, and he promised to produce a map to prove the point. Defendant also urged jurors to consider that no evidence would establish that he had witnessed the loading of the trailer in California. Defendant prompted Deputy Williams to admit that it was possible that someone loading the load could have placed the marijuana into the truck while he was sorting out the paperwork before leaving California with the load, and that someone else could have taken the marijuana off at the other end, and “... the defendant would never have known what he was carrying.” Defendant also got Williams to admit that he did not remember if he ever asked him if he watched the truck as it was loaded. It was therefore entirely possible, defendant suggested, that persons unknown to him had concealed the marijuana in the trailer without his knowledge and far enough back from the trailer door that it was not visible to anyone standing outside, and then alerted other conspirators in New York waiting to off-load the contraband that the shipment was on its way. As for the discrepancy in the load’s ultimate destination, defendant suggested that he had been transporting a “blind shipment,” one intended by the broker for a destination other than the one listed on the bill of lading.

In reversing the defendant’s conviction, the Second Circuit panel emphasized that Sergeant Thomas found the marijuana not in the cab of the tractor but in the trailer, on top of the truck’s legal cargo of grapes and positioned out of the plain view of anyone standing, as Adley had, in the opened doors at the rear of Isthe vehicle. On the premise that “one cannot apply private vehicle case law regarding constructive possession to drugs found in the cargo area of a common carrier involving the transportation of goods or persons,” Pigford, 39,306 at 10, 892 So.2d at 730, the court of appeal reasoned that defendant’s access to the cargo area did not alone indicate that he had knowledge of the contraband concealed in the trailer. In the appellate court’s view, the state needed to present additional evidence demonstrating defendant’s guilty knowledge “to preclude the possibility that the contraband was put there by third persons during the loading of the cargo, or evidence proving the driver’s knowledge of the contraband in the cargo area.” Id. The court of appeal ultimately concluded that the state’s evidence did not exclude the reasonable hypothesis that persons responsible for loading the trailer placed the marijuana on top of the grapes and out of sight for unloading by other members of the conspiracy at the destination point for the truck. In addition, although the tractor was registered to defendant’s wife, who was with him at the time of his arrest, the state presented no evidence at trial as to the ownership of the cargo trailer. The state’s case therefore did not “preclude the possibility that the defendant may have backed his Volvo tractor up to someone else’s loaded trailer, hitched the trailer to his tractor, locked the trailer doors, and driven off.” Pigford, 39,306 at 13, 892 So.2d at 731.

However, the pertinent question on review was not whether the appellate court found that defendant’s hypothesis of innocence offered a reasonable explanation for the evidence at trial but whether jurors acted reasonably in rejecting it as a basis for acquittal. In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was |fisufficient to convince a *521rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact-finder. State v. Robertson, 96-1048, p. 1 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990). A reviewing court may intervene in the trier of fact’s decision only to the extent necessary to guarantee due process of law. State v. Mussall, 523 So.2d 1305, 1310 (La.1988). Accordingly, in cases relying on circumstantial evidence to prove one or more elements of the crime, when the fact-finder reasonably rejects the hypothesis of innocence advanced by the defendant at trial, that hypothesis fails, and the verdict stands unless the evidence suggests an alternative hypothesis sufficiently reasonable that rational jurors could not find proof of the defendant’s guilt beyond a reasonable doubt. State v. Lee, 01-1080, p. 12 (La.11/28/01), 800 So.2d 833, 841; Captville, 448 So.2d at 678.

In the present case, the court of appeal justified its decision to reverse in part on grounds that the state failed to negate the possibility that defendant simply hooked his tractor up to the wrong trailer and unwittingly drove off with over $52,000 worth of marijuana and someone else’s legal load of grapes. That alternative hypothesis of innocence may have been possible, but it clearly was not so probable that reasonable jurors would necessarily have to entertain a reasonable doubt of defendant’s guilt. As to the hypothesis of innocence actually advanced by defendant at trial through his cross-examination of the state’s witnesses, i.e., that he did not load the trailer and therefore remained unaware of the marijuana stashed |7by someone else on top of his legal load and out of sight to a casual observer, defendant clearly had dominion and control over the trailer and its contents as well as his tractor. The trailer had been padlocked only and Officer Thomas’s testimony at trial informed jurors of the difference between a trailer sealed by the shipper to deny the driver or anyone else access to the contents during transportation and a trailer merely padlocked, as to which the driver retains access to the interior and cargo. Officer Thomas explained that the driver of a sealed cargo would not break the seal “because the load may be turned down because the load has been tampered with.” The seal thus prevents the driver from gaining access to the load until it is delivered. On the other hand, “[a] load that has a lock on it with him having the key then he has ample opportunity and time to do whatever he wants to with the load. He can open it up, go in there and check it, do whatever.”

Defendant’s dominion and control over the trailer and access to its contents did not alone establish his guilty knowledge of the marijuana bundle placed on top of the grape pallets. See State v. Major, 03-3522 at 8-9 (La.12/1/04), 888 So.2d 798, 803. Nevertheless, guilty knowledge, an essential component of any showing that a defendant has constructive possession of contraband, ie., dominion and control over it although the contraband is not in his actual possession, State v. Bell, 566 So.2d 959, 960 (La.1990); State v. Sweeney, 443 So.2d 522, 528 (La.1983), may be inferred from the circumstances of the transaction. Major, 03-3522 at 8-9, 888 So.2d at 803; State v. Goiner, 410 So.2d 1085, 1087 (La.1982).

In the present case, the court of appeal feared that “[t]o convict a driver *522only on the evidence that he had access to the cargo area creates a dangerous precedent for the many drivers involved in commercial transportation of goods that happen | sto have access to the cargo they are carrying.” Pigford, 39,306 at 10, 892 So.2d at 730. However, it remains possible to subscribe to that reluctance yet still find the state provided jurors with additional evidence from which a rational trier of fact could infer defendant’s guilty knowledge of the marijuana stashed inside the trailer. Sergeant Thomas testified that a citation for an overweight load was a “common occurrence” on the interstate but that the defendant appeared unusually nervous for such a routine violation. Defendant also appeared to have gone considerably off course, given his bill of lading indicating that the trailer had been loaded in California with pallets of grapes for delivery in the Northeast, either in Pennsylvania or New York. Defendant never produced his promised map and jurors might not have known from personal knowledge that 1-20 does not run all of the way to California but reaches only into west Texas where it connects to I — 10, which does run into southern California. See http://www.wikipedia .org/wiki/ Interstate — 20 (“Interstate 20 (abbreviated 1-20 or in Texas IH-20) is a major east-west interstate highway in the southeastern United States. It runs 1,508 miles (2,427 km) from near Kent, Texas at Interstate 10 to Florence, South Carolina, at Interstate 95.”). Officer Williams lacked that specific knowledge but. nevertheless testified without contradiction that “[i]t seems like to me it was a long way around from California to New York coming down this far instead of going across the mid section.... In my estimation from California going to New York if you go right through the middle of the country instead of coming down south and then going up it would be shorter.” Thus, whether defendant lied to the officer by informing him he was on his way to New York or whether the bill of lading revealed his correct destination in Pennsylvania, he had embarked on a particularly circuitous course for delivering the grapes. In fact, defendant apparently lied to the officers |flabout New York. None of the state’s witnesses had ever heard of a “blind shipment” in which the bill of lading did not list the correct destination of the load. ‘Tour bills have to match,” Officer Adley informed jurors.2

Defendant’s apparently wayward course and attempt to conceal his ultimate destination gave rise to a reasonable inference that he had a particular and not-so-innocent reason for traveling far out of his way although engaged in interstate shipment of perishable cargo. The marijuana may not have been in plain view from outside the trailer but anyone with access to the cargo could have found the package in the same way that. Officer Thomas discovered it, simply by standing in the back of the trailer and inspecting the load. The supposed conspirators loading the trailer had therefore chosen the least likely spot to conceal the six-to-seven-foot-long marijua*523na package inside a trailer that was not sealed by the shipper but padlocked only. In fact, the location of the marijuana packet on top of the grape pallets at the rear of the trailer clearly suggested that the contraband had been placed in the trailer after it was fully loaded and not during the loading process, a scenario entirely consistent with the state’s theory of the case that at some point after loading defendant used his key to unlock the trailer and stash his marijuana shipment.

Finally, rational jurors could also consider the likelihood that a person would commit over $50,000 worth of marijuana to a carrier completely oblivious |10of the conspiracy to ship the contraband, although the load had not been sealed but merely padlocked and the driver therefore retained access to the trailer’s interior and could easily find the package placed on top of the legal load. See Major, 03-3522 at 10, 888 So.2d at 803 (‘“The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.’”) (quoting Maryland v. Pringle, 540 U.S. 366, 373, 124 S.Ct. 795, 801, 157 L.Ed.2d 769 (2003)); see also United States v. Serrano-Lopez, 366 F.3d 628, 635 (8th Cir.2004) (“The large quantity of drugs involved is evidence of the defendants’ knowledge. Even if the drugs were not owned by the defendants, it is unlikely that the owner would place approximately $130,000 worth of cocaine in the hands of people who do not even know it is there.”).

Under these circumstances, we conclude that jurors reasonably rejected the hypothesis of innocence advanced by defendant, and that the evidence presented at trial suggested no other hypothesis necessarily giving rise to reasonable doubt as to defendant’s guilty knowledge of the marijuana within the trailer. The evidence otherwise supported the jury’s finding that defendant had dominion and control over the contraband by virtue of his access to the interior of the trailer and that he therefore had constructive possession of the marijuana, in an amount and value sufficient to support an inference of intent to distribute. Accordingly, the decision below is vacated, defendant’s conviction and sentence are reinstated, and this case is remanded to the court of appeal for consideration of the remaining counseled and pro se assignments of error pretermit-ted on original hearing.

OPINION OF THE COURT OF APPEAL VACATED; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED TO COURT OF APPEAL.

Justice HOBBS

delivered the Opinion of the Court.

A jury convicted the defendant, David Whitaker, of possessing with intent to distribute over 1,000 grams. of methamphetamine, a schedule II controlled substance, and importing methamphetamine into Colorado. Whitaker claimed that his conviction should be reversed because the trial judge did not instruct the jury to apply the mens rea of "knowingly" to both the quantity and the importation of the drug. The court of appeals upheld Whitaker's conviction. We agree.

We hold that the General Assembly, in section 18-18-405, did not intend to apply a culpable mental state to the quantity of drugs the defendant distributed, manufactured, dispensed, sold, or possessed. We also hold that importation under Colorado's *557special offender statute, section 1818-407, does not include a mens rea requirement. The jury found beyond a reasonable doubt that the defendant possessed the drug quantity specified by section 18-18-405(8)(a)(III), and imported the drugs across state lines as specified by section 18-18-407(1)(d). Accordingly, we uphold Whitaker's conviction and sentence.

I.

On January 14, 1998, David Whitaker was a passenger on a Greyhound bus en route from Los Angeles, California to Denver, Colorado. The bus stopped in Grand Junetion, Colorado for routine service and to change drivers. Passengers were required to leave the bus during this stop. After the passengers had reboarded, three Grand Junction Police Department officers entered the bus, identifying themselves as police officers. Two of the officers began talking to each of the bus passengers, including Whitaker.

The officers testified that Whitaker appeared nervous while talking to them. When asked about his luggage, Whitaker told the police that he had none. The officers pointed to a black bag near Whitaker and asked if it was his. Whitaker responded that it was not his bag, but said he had placed his jacket and a few other .items inside it because no one else appeared to be using it. Whitaker then consented to a search of the bag. The officers discovered 8.8 pounds of uncut methamphetamine contained in several duct tape covered packages inside the bag.

The prosecution charged Whitaker with several drug offenses1 At trial, Whitaker argued that he did not possess the drugs and did not know that the packages of drugs were in the bag. The defense did not dispute the facts that the bag contained 8.8 pounds of methamphetamine and that the drugs came across Colorado's state lines via the Greyhound bus. The jury convicted Whitaker of possessing 1,000 grams or more of a schedule II controlled substance with intent to distribute and importation of a schedule II controlled substance. The trial court sentenced him to twenty- years in state prison.

The court of appeals affirmed Whitaker's conviction and sentence. People v. Whitaker, 32 P.3d 511 (Colo.App.2000). The court of appeals found that the trial court had correctly instructed the jury on the elements of possession of 1,000 grams or more of a controlled substance with intent to distribute and on the charge of importation of a controlled substance. It held that the prosecution need not prove that Whitaker "knowingly" imported the controlled substance, nor that the defendant "knew" the drugs weighed more than 1,000 grams. Id. at 517-19. The court concluded that special offender drug importation under section 18-18-407(1)(d), 6 C.RS. (2001), and the quantity of a controlled substance possessed under section 18-18-405, 6 C.R.S. (2001), have no mens rea requirement. Id. at 517-18,

We granted certiorari in People v. Whitaker, 32 P.3d 511 (Colo.App.2000), to review the court of appeals' judgment.2 We uphold the judgment.

*558IL.

We hold that the General Assembly, in section 18-18-405, did not intend to apply a culpable mental state to the quantity of drugs the defendant distributed, manufactured, dispensed, sold, or possessed. We also hold that importation under Colorado's special offender statute, section 18-18-407, does not include a mens rea requirement. The jury found beyond a reasonable doubt that the defendant possessed the drug quantity specified by section 18-18-405(8)(a)(III), and imported the drugs across state lines as specified by section 18-18-407(IM)(d). Accordingly, we uphold Whitaker's conviction and sentence. '

A.

Section 18-18-405 and Quantity of Drug

Whitaker argues that the trial court erroneously instructed the jury on the charge of possession with intent to distribute over 1,000 grams of a controlled substance, because it did not clearly instruct that the mens rea "knowingly" applied to the drug quantity. We disagree. '

Section 18-18-405(8)(a)(III) applies to Whitaker because the jury convicted him of possessing more than 1,000 grams of methamphetamine, a schedule II controlled substance, with the intent to distribute. Section 18-18-405(8)(a)(II1) defines the required sentence for a defendant convicted of:-unlawful distribution, manufacturing, dispensing, sale or possession of 1,000 grams or more of a schedule I or II controlled substance.3

Whitaker argues that the quantity of drugs contained 'in section 18-18-is an essential element of the crime of possession with intent to distribute, and the mens rea contained in section 18-18-405(1)(a), "knowingly," must apply to it. However, whether the quantity of drugs involved in the offense requires a mens rea is a matter of statutory interpretation. «"Our fundamental responsibility in interpreting a statute is to give effect to the General Assembly's purpose and intent in enacting the statute." Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139, 1152 (Colo.2001). "If the plain language of the statute clearly expresses the legislative intent, then the court must give effect to the ordinary meaning of the statutory language. Likewise, the court should avoid interpreting a statute in a way that defeats the obvious intent of the legislature." Pediatric Newrosurgery, P.C. v. Russell, 44 P.3d 1063, 1068 (Colo.2002). We must read the statute as a whole, construing each provision consistently and in harmony with the overall statutory design, if possible. Id.; Empire Lodge, 839 P.8d at 1152.

Here, section 18-18-405(1)(a) defines the offense, and the provisions of 18-18-405(2), (8), (5) and (6) set forth the applicable punishment levels.4 This statutory structure demonstrates the General Assembly's intent to separate sentencing factors, such as drug type and quantity, from the elements of the crime. Section 18-18-405(8)(a) does not pre*559scribe drug quantity as an element of the offense, nor does it require proof of a culpa ble mental state in regards to it. Section 18-18-405(1)(a) sets forth the elements of the crime; the mens rea applies to each of these.

Although section 18-18-405(1)(a) requires the prosecution to prove that the defendant "knowingly" distributed, manufactured, dispensed, sold or possessed the controlled substance, nothing in the statute's language suggests that the prosecution must show that the defendant "knew" the actual weight of the drugs under section 18-18-405(8)(a). To the contrary, section 18-18-405(8)(a) triggers the level of punishment upon proof that the drug quantity involved in the offense was "an amount that is or has been represented to be" the amount specified by subsections (I), (I1), or (III) thereunder. In this case, based on the jury's verdict finding the quantity to be 1000 grams or more of a schedule I or II controlled , substance, - section - 18-18-405(8)(a)(III) provided for a sentence to the department of corrections for a term greater than the maximum presumptive range, but not more than twice the maximum presumptive range provided for such offense in seetion 18-1-105(1)(g).

The statute thereby sets forth the drug quantity separately from the elements, with no mens rea requirement and with the apparent design of separating the applicable punishment from the creation and definition of the offense. People v. Ramirez, 997 P.2d 1200, 1208 (Colo.App.1999)(holding that quantity of a controlled substance possessed is not a substantive element of the offense), aff'd by am equally divided court, 48 P.8d 611 (Colo.2001).5

Any amount of drugs, even less than a usable quantity, can support a convietion under 18-18-405(1)(a). Richardson v. People, 25 P.8d 54, 58 (Colo.2001)("In a possession case, a jury may return a verdict of guilty if it finds, beyond a reasonable doubt, that the defendant knowingly possessed any quantity of a controlled substance."). The quantity of drugs turns on objective standards and requires no inquiry into the defendant's state of mind. See United States v. Normandeau, 800 F.2d 953, 956 (9th Cir.1986)(stating that proof of thé amount of drugs is far different from proof that the defendants knew of the amount). ~

The underlying purpose of section 18-18-405(8) is to punish more severely those offenders who deal with large quantities of controlled substances. - The legislature's choice to do so is within its prerogative. People v. Martinez, 36 P.3d 201, 204 (Colo.App.2001); see also Gorman v. People, 19 P.3d 662, 666 (Colo.2000)(stating that we look to the legislative context to see if a mens rea requirement - applies). - Section - 18-18-405(8)(a) does not create an additional element for the underlying substantive offense; rather, it defines cireamstances that, if proven beyond a reasonable doubt, may require a sentence greater than the presumptive minimum contained in section 18-1-105(1)(a), 6 C.R.S. (2001). See People v. Ceja, 904 P.2d 1808, 1810 (Colo.1995)(stating that Colorado Supreme Court cases "have turned not on the quantity of substance found but rather on the knowing possession of that substance"); Ramires, 997 P.2d at 1208 ("Section 18-18-405(8)(a), in itself, does not make possession unlawful and, therefore, does not set forth an offense.").

Here, the issue of drug quantity went to the jury and the possession with intent to distribute more than 1,000 grams of a schedule II controlled substance jury instruction clearly included the quantity of drugs as a fact that must be proven beyond a reasonable doubt. Thus, we find no error.6 See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848, 147 L.Ed.2d 485 (2000).

*560B.

Section 18-18-407 and Importation of the Drug

The jury found beyond a reasonable doubt that Whitaker imported a controlled substance into Colorado, a special offender factual finding for the jury to make under section 18-18-407(1)(d), 6 C.R.S. (2001).7 Whitaker argues a violation of his constitutional due process rights because the trial court did not instruct the jury to find any culpable mental state regarding the importation charge. He contends that: (1) the Colorado special offender statute creates a separate substantive offense or, alternatively, an additional element for the underlying offense; and (2) the mens rea of "knowingly" must apply to the special offender statute, section 18-18-407, 6 C.R.S. (2001). We disagree.

The plain language of Colorado's special offender statute with regard to importation does not include a culpable mental state. See § 18-18-407, 6 C.RS. (2001). Rather, this provision deals with the level of punishment. Vega v. People, 898 P.2d 107, 112 (stating that importation provision addresses punishment, not the creation of a substantive offense)8 The plain language of the statute indicates that "(1) it is triggered only after a felony drug conviction, and (2) its effect is to increase the required sentencing range upon a finding of one of the specified 'aggravating circumstances." " Vega, 898 P.2d at 118. "Once a jury bas determined that a defendant possessed the mental state required for conviction of the substantive offense, an enhanced sentence must be imposed whether or not the defendant fully knew of the cireumstances leading to the special offender finding." Ramirez, 997 P.2d at 1205.

The legislative history of the special offender provision demonstrates the General Assembly's intent to address punishment rather than defining the elements of an offense. Vega, 898 P.2d at 118 ("During discussion of the motion to adopt the amendment, Joseph Mackey, one of its drafters, testified that the special offender provision is 'not a substantive charge' ...."). The General Assembly added this provision to the Controlled Substances Act to allow greater penalties for drug traffickers. Id. The legislature accomplished this purpose by listing certain extraordinary aggravating cireum-stances that subject a defendant to a greater sentence as a special offender. Id. at 112; Ramirez, 997 P.2d at 1205.

Colorado law requires the fact-finder to enter a special finding in regard to the existence of the special offender cireum-stance. Ramirez, 997 P.2d at 1206 ("Notice is required, trial by jury is not eliminated, and a finding of the existence of the [special offender cireumstance] beyond a reasonable doubt is required before a defendant's sentence is increased.") '

In this case, the jury was instructed to find the presence or absence of the special offender importation fact only if it found Whitaker guilty of the underlying crime, possession with intent to distribute. Whitaker argues that the jury verdict form violated his due process rights because it did not apply a mens rea to the importation of methamphetamine charge. We disagree. The special offender statute's importation feature does not include a mens rea requirement. We find no error.

We also reject Whitaker's argument that Apprendi requires a different result. Here, the fact-finder determined the existence of the special offender fact, importation, beyond a reasonable doubt, in accordance with Apprendi. Apprendi, 580 U.S. at 490, 120 S.Ct. 2348.

IIL.

Accordingly, we affirm the judgment of the court of appeals upholding Whitaker's conviction and sentence.

OPINION OF THE COURT

Chief Judge Kaye.

Penal Law § 220.18 (5) makes it a felony to "knowingly and unlawfully possess * * * six hundred twenty-five milligrams of a hallucinogen.” The question of statutory interpretation before us is whether "knowingly” applies to the weight of the controlled substance. We conclude that it does and that the trial evidence was insufficient to satisfy that mental culpability element.

A subsidiary issue concerns the denial of defendant’s request to represent himself at trial. We agree with defendant that the trial court’s basis for denying the application was improper, and that the issue was not waived in a subsequent letter to the trial court or in his jurisdictional statement to this Court.

I.

Viewed in a light most favorable to the People (People v Contes, 60 NY2d 620, 621), the trial evidence revealed that on October 2, 1990 defendant asked his friend David Hopkins to order and receive a shipment of hallucinogenic mushrooms on his behalf. Hopkins agreed, and adhering to defendant’s instructions placed a call to their mutual friend Scott in San Francisco and requested the "usual shipment.” Tipped off to the transaction, on October 5 State Police Investigator Douglas Vredenburgh located the package at a Federal Express warehouse in Binghamton. The package was opened (pursuant to a search warrant) and resealed after its contents were verified. The investigator then borrowed a Federal Express *500uniform and van and delivered the package to Hopkins, the addressee, who was arrested upon signing for it.

Hopkins explained that the package was for defendant and agreed to participate in a supervised delivery to him. In a telephone call recorded by the police, Hopkins notified defendant that he got the package, reporting a "shit load of mushrooms in there.” Defendant responded, "I know, don’t say nothing.” At another point Hopkins referred to the shipment containing two pounds. The men agreed to meet later that evening at the firehouse in West Oneonta.

At the meeting, after a brief conversation, Hopkins handed defendant a substitute package stuffed with newspaper. Moments after taking possession, defendant was arrested. He was later indicted for attempted criminal possession of a controlled substance in the second degree.

In pretrial letters to the Trial Judge, defendant expressed dissatisfaction with his assigned attorney and requested permission to represent himself. The Judge held a hearing, questioning defendant on his knowledge of the law and trial procedure. Defendant, who had three years of college and had previously stood trial for another offense, provided answers that were reasonably accurate for a layperson.1 Nevertheless, the court denied the request, concluding that defendant was "not sufficiently qualified to represent [himjself in this charge that faces life imprisonment.” In a subsequent letter dated May 13, 1991, defendant thanked the Judge for taking time to determine whether he was capable of representing himself, expressing confidence that he would get a fair trial and the hope that, with his attorney’s help, he would soon earn his freedom.

The case proceeded to trial, where the evidence summarized above was adduced. Additionally, the police chemist testified that the total weight of the mushrooms in Hopkins’ package was 932.8 grams (about two pounds), and that a 140-gram sample of the package contents contained 796 milligrams of psilocybin, a hallucinogen (Penal Law § 220.00 [9]; Public Health Law § 3306 [schedule I] [d] [19]). He did not know, however, the process by which psilocybin appears in mushrooms, whether naturally, by injection or some other means. *501Nor was there any evidence as to how much psilocybin would typically appear in two pounds of mushrooms.

At the close of the People’s case, defendant moved to dismiss for insufficient proof that he knew the level of psilocybin in the mushrooms, and also requested a charge-down to seventh degree attempted criminal possession, which has no weight element. Both applications were denied, defendant was convicted as charged, and he was sentenced as a second felony offender to 10 years-to-life.

The Appellate Division affirmed. The court held that a defendant must know the nature of the substance possessed, and acknowledged that the weight of the controlled substance is an element of the crime. The court declined, however, to read the statute as requiring that a defendant have actual knowledge of the weight. Instead, the court held that "the term 'knowingly’ should be construed to refer only to the element of possession and not to the weight requirement.” (184 AD2d 24, 27.)

Finding ample evidence that defendant intended and attempted to possess psilocybin while knowing the nature of the substance, and that the weight of the psilocybin ultimately proved to be more than 625 milligrams, the Appellate Division sustained the conviction. Similarly, because there was no reasonable view of the evidence that the weight of the psilocybin in the mushrooms was less than 625 milligrams, the court rejected the argument that the trial court erred in refusing the charge-down.

Finally, the Appellate Division concluded that, by virtue of his May 13 letter, defendant waived any objection with respect to the denial of his request to proceed pro se.

We now reverse.

II.

Although the present case involves an attempt, analysis begins with the elements of the completed crime, second degree criminal possession of a controlled substance. Penal Law § 220.18 (5) provides:

"A person is guilty of criminal possession of a controlled substance in the second degree when he knowingly and unlawfully possesses: * * *

"5. six hundred twenty-five milligrams of a hallucinogen.”

*502It is undisputed that the knowledge requirement of the statute applies to the element of possession (see also, Penal Law § 15.00 [2]), and that defendant must also have "actual knowledge of the nature of the possessed substance” (People v Reisman, 29 NY2d 278, 285). At issue is whether defendant must similarly know the weight of the material possessed. That is a question of statutory interpretation, as to which the Court’s role is clear: our purpose is not to pass on the wisdom of the statute or any of its requirements, but rather to implement the will of the Legislature as expressed in its enactment (People v Smith, 79 NY2d 309, 311).

In effectuating legislative intent, we look first of course to the statutory language. Read in context, it seems evident that "knowingly” does apply to the weight element. Indeed, given that a defendant’s awareness must extend not only to the fact of possessing something ("knowingly * * * possesses”) but also to the nature of the material possessed ("knowingly * * * possesses * * * a hallucinogen”), any other reading would be strained. Inasmuch as the knowledge requirement carries through to the end of the sentence (see, People v Reisman, 29 NY2d, at 285), eliminating it from the intervening element — weight—would rob the statute of its obvious meaning. We conclude, therefore, that there is a mens rea element associated with the weight of the drug.

That reading is fortified by two rules of construction ordained by the Legislature itself. First, a "statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability” (Penal Law § 15.15 [2]). If any material element of an offense lacks a mens rea requirement, it is a strict liability crime (Penal Law § 15.10). Conversely, a crime is one of "mental culpability” only when a mental state "is required with respect to every material element of an offense” (id.).

By ruling that a defendant need not have knowledge of the weight, the Appellate Division in effect held, to that extent, that second degree criminal possession is a strict liability crime (see, Penal Law § 15.10). That is an erroneous statutory construction unless a legislative intent to achieve that result is "clearly indicated]” (Penal Law § 15.15 [2]).

In a similar vein, the Legislature has provided in Penal Law § 15.15 (1):

"Construction of statutes with respect to culpability requirements.

*503"1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms 'intentionally/ 'knowingly,’ 'recklessly’ or 'criminal negligence/ or by use of terms, such as 'with intent to defraud’ and 'knowing it to be false,’ describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears. ” (Emphasis added.)

Accordingly, if a single mens rea is set forth, as here,2 it presumptively applies to all elements of the offense unless a contrary legislative intent is plain.

We discern no "clear” legislative intent to make the weight of a drug a strict liability element, as is required before we can construe the statute in that manner (Penal Law § 15.15 [1], [2]). Moreover, the over-all structure of the drug possession laws supports the view that a defendant must have some knowledge of the weight.

There are six degrees of criminal possession of a controlled substance, graded in severity from a class A misdemeanor (Penal Law § 220.03 [seventh degree]) up to an A-I felony (Penal Law § 220.21 [first degree]). The definition of each begins identically: "A person is guilty of criminal possession of a controlled substance in the _____ degree when he knowingly and unlawfully possesses * * *.” The primary distinctions between one grade or another relate to the type and weight of the controlled substance, and in some instances the existence of an intent to sell (e.g., Penal Law § 220.16 [1]) or intent to sell combined with a prior drug conviction (e.g., Penal Law § 220.09 [13]).

Taking hallucinogens as an example, knowing and unlawful possession of any amount, even a trace (see, People v Mizell, 72 NY2d 651, 655) is seventh degree possession (Penal Law § 220.03); 25 milligrams or more, fourth degree (Penal Law § 220.09 [6]); 125 milligrams or more, third degree (Penal Law § 220.16 [10]; and 625 milligrams, second degree (Penal Law *504§ 220.18 [5]). The maximum penalty for these crimes ranges from one-year incarceration to a life sentence, yet the only statutory difference relates to the weight of the drugs. To ascribe to the Legislature an intent to mete out drastic differences in punishment without a basis in culpability would be inconsistent with notions of individual responsibility and proportionality prevailing in the Penal Law (see, e.g., Penal Law § 1.05 [4]).

Our cases, too, have suggested that knowledge of the weight is an element. In People v Scarborough (49 NY2d 364, 374), for example, a case involving a similarly worded criminal sale of a controlled substance statute (see, Penal Law § 220.41), we concluded "that there is no substance to defendant Scarborough’s claim of insufficiency of proof on the issue of her knowledge of the weight or the nature of the contents of the glossine envelopes which she delivered to the buyer” (emphasis added).

Similarly, in People v Reisman (29 NY2d 278, 287, supra), defendant — like defendant here — requested a charge-down to an offense that did not require possession of a specified amount. We rejected the claim that the trial court’s failure to deliver the charge was error, first noting that the "weight of the contraband in the carton was uncontradicted” (id., at 287). If defendant’s knowledge of the weight were not an element, and the only issue were the objective weight of the substance, that would have been sufficient to dispose of the claim, as it was for the Appellate Division here (184 AD2d, at 28). But we continued:

"Moreover, the nature of the case and its circumstances depended entirely on a commercial-like shipment of the large quantity. The case could stand or fall on that proof and no other. Consequently, under no view of the facts, because there was no basis in any of the evidence, could the jury find the accused innocent of the higher crime and yet guilty of the misdemeanor which required no minimum quantity” (29 NY2d, at 287).

In the charge-down context, the Court’s reference to the nature and circumstances of the case could only have been an allusion to defendant’s knowledge of the weight.

In sum, the plain language of the statute, rules of construction, the format of the drug possession laws and our cases all lead to the conclusion that the Appellate Division erred in *505holding that there is no mens rea requirement associated with the weight of a controlled substance.

III.

The People’s contrary argument is based in part on a concern that it would be "prohibitively difficult,” if not impossible, to secure convictions if they were required to prove that a defendant had knowledge of the weight. We disagree.

Often there will be evidence from which the requisite knowledge may be deduced, such as negotiations concerning weight, potency or price (see, e.g., People v Acosta, 80 NY2d 665, 668, n 1, and 672-673). Similarly, for controlled substances measured on an "aggregate weight” basis (see, e.g, Penal Law § 220.06 [2]), knowledge of the weight may be inferred from defendant’s handling of the material, because the weight of the entire mixture, including cutting agents, is counted (see generally, Rosenblatt, New York’s New Drug Laws and Sentencing Statutes, at 45-48 [1973]; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 220, at 9 [comparing aggregate and pure weight statutes]).

By contrast, that same inference may be unavailable for controlled substances measured by "pure” weight, like psilocybin. The effective doses of these drugs may be minuscule, and they are customarily combined with other substances to facilitate handling and use. In these circumstances it may indeed be difficult to show defendant’s knowledge of the weight. Although we cannot simply read the knowledge requirement out of the statute, these "compelling practical considerations” may inform our interpretation of that element (see, People v Mizell, 72 NY2d, at 654).

The Legislature has decided that persons who illegally possess larger quantities of controlled substances should be punished more severely; their conduct is more repugnant and presents a greater threat to society. Because drug possession is not a strict liability crime, however, an individual is not deserving of enhanced punishment unless he or she is aware that the amount possessed is greater. A purpose of the knowledge requirement, then, is to avoid overpenalizing someone who unwittingly possesses a larger amount of a controlled substance than anticipated.

That legislative purpose can be satisfied, among other ways, with evidence that the pure weight of the controlled substance *506possessed by defendant is typical for the particular form in which the drug appears. This correlation between the pure weight typically found, and the pure weight actually possessed, substantially reduces the possibility that a person will unjustly be convicted for a more serious crime.

To illustrate: a person may knowingly possess 50 doses of LSD on blotter paper but, understandably, have no awareness what the pure LSD weighs; upon chemical analysis it is determined that defendant actually possessed 2.5 milligrams. If there is evidence that a typical dose of LSD weighs .05 milligrams (see, Chapman v United States, 500 US 453, 457), the jury could conclude, within the meaning of the statute, that defendant knowingly possessed more than 1 milligram, and convict of fourth degree possession (Penal Law § 220.09 [5] [1 mg or more]). If, however, because of some manufacturing defect unknown to defendant those 50 doses weighed 10 milligrams, defendant should not be convicted of more serious third degree possession (Penal Law § 220.16 [9] [5 mg or more]).

There may of course be other ways of proving defendant’s knowledge within the meaning of the statute. Our purpose today, however, is not to survey all of the permissible methods but to clarify that the statute does in fact contain a weight-related mental culpability element.

IV.

With the foregoing principles in mind, we consider whether there was sufficient evidence to convict defendant of attempted second degree possession, an A-II felony.

Certainly there was sufficient evidence from which the jury could conclude, beyond a reasonable doubt, that defendant attempted and intended to possess a two-pound box of hallucinogenic mushrooms. It is also undisputed that, upon testing, the mushrooms in the particular box defendant attempted to possess — the one sent to Hopkins by Scott — contained more than 650 milligrams of psilocybin. The issue we must decide, however, is whether sufficient evidence was presented at trial from which it could be inferred that defendant had the requisite knowledge of the weight.

We disagree with the People’s suggestion that the evidence of defendant’s knowing attempt to possess two pounds of mushrooms, without more, could satisfy their burden of proof. The controlled substance here is psilocybin; had defen*507dont ordered a specific quantity of that drug, plainly that would satisfy the knowledge element. But defendant attempted to possess two pounds of mushrooms, only a small portion of which was pure psilocybin.

Although in these circumstances defendant could properly be convicted of attempting to possess the amount of psilocybin that would typically appear in two pounds of hallucinogenic mushrooms, there was no evidence linking psilocybin weight to mushroom weight. Indeed, there was no evidence indicating whether psilocybin grows naturally or is injected into the mushrooms, or of the usual dose of the drug — matters not within the ken of the typical juror. We thus conclude on this record that there was insufficient evidence to satisfy the knowledge requirement within the meaning of the statute.

That deficiency does not absolve defendant of all criminal liability. There is sufficient evidence to sustain a conviction for the lesser-included offense of attempted criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), which does not have a weight element.

V.

Finally, we briefly consider whether the trial court had a proper basis for denying defendant’s request to represent himself.

A criminal defendant may be permitted to proceed pro se if the request is timely and unequivocal, there has been a knowing and intelligent waiver of the right to counsel, and defendant has not engaged in conduct that would interfere with a fair and orderly trial (People v McIntyre, 36 NY2d 10, 17). Although the trial court in the present case perceived defendant’s legal skills to be wanting, and therefore denied the motion for defendant’s "own protection,” that was not a proper ground for decision. What we said in People v Davis (49 NY2d 114, 120), applies equally here:

"To accept a defendant’s lack of knowledge of legal principles and rules of law or his unfamiliarity with courtroom procedures as the ground for concluding that he is not qualified to represent himself would in effect be to eviscerate the constitutional right of self-representation; such limitations could confidently be said to exist in nearly every criminal case in which the defendant had not received legal training. This, however, appears to *508have been the rationale for the court’s ruling in this case; nothing intimates that the trial court’s evaluation of this defendant as not capable or qualified to represent himself was because of any mental incompetence or illiteracy.”

On this appeal, the People do not defend the trial court’s decision on the merits, instead arguing that the issue is not properly before us because (i) it was not identified in defendant’s rule 500.2 jurisdictional statement (22 NYCRR 500.2) and (ii) it was effectively waived in defendant’s May 13 letter. Neither argument has merit.

Rule 500.2 (c) expressly provides that "inclusion and identification of issues shall not be binding on counsel for brief writing or oral argument purposes.” The issue-identification requirement is for subject matter indexing and calendaring (id.). Nor can defendant’s May 13 letter be read as a waiver of legal issues with respect to the propriety of the trial court’s denial of the motion.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed with leave to the People to institute such proceedings as they deem appropriate respecting the lesser-included offense of attempted criminal possession of a controlled substance in the seventh degree.

Judges Simons, Titone, Hancock, Jr., and Smith concur with Chief Judge Kaye; Judge Bellacosa dissents and votes to affirm for the reasons stated in the opinion by then-Justice Howard A. Levine at the Appellate Division (184 AD2d 24); Judge Levine taking no part.

Order reversed, etc.