The opinion
I respectfully dissent. I believe that the error here — the variance between the indictment and the trial court's charge to the jury — can be characterized as a misdescription of an element of the crime, an error that is not jurisdictional in nature and one that must be preserved by specific objection in the trial court. See Gibson v. State , 488 So.2d 38 , 40 (Ala.Cr.App. 1986) (issue was preserved by specific objection). See also Neder v. United States , 527 U.S. 1 , 119 S.Ct. 1827 , 144 L.Ed.2d 35
(1999) (erroneous jury instruction omitting element of offense is not a structural error and is therefore subject to harmless-error analysis). Because Gamble did not object to the variance, I would hold that he failed to preserve this issue for review. Therefore, I must dissent.