IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D21-2624 LT Case No. 2021-CF-004934-O
TARVIS LORRAINE WILLIAMSON,
Appellee.
________________________________/
Opinion filed September 23, 2022
Appeal from the Circuit Court for Orange County, Patricia Strowbridge, Judge.
Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.
Matthew J. Metz, Public Defender, and Ryan Belanger, Assistant Public Defender, Daytona Beach, for Appellee.
SASSO, J. The State appeals the order granting Tarvis Lorraine Williamson’s
motion to dismiss count one of the information for aggravated assault with a
deadly weapon, contending the lower court erroneously concluded there was
no disputed issue of material fact. We agree because the evidence
presented by the State created a disputed factual issue sufficient to establish
a prima facie case of guilt against Williamson. As a result, we reverse.
On or about April 29, 2021, Officer Daniel Glidden and Sergeant
Rodney Vance responded to a call from Williamson’s sister, where she
requested to have Williamson trespassed from her apartment. Central to the
issue raised1 in the State’s appeal is bodycam footage depicting the events
following the officers’ arrival to the residence.
The footage depicts Officer Glidden speaking with Williamson’s sister
when Williamson leaves the apartment with his hands full of various personal
items. Approximately one minute later, Williamson walks back toward the
apartment and the officer. Just after the officer asks Williamson’s sister if
Williamson has a gun on him, Williamson pulls what appears to be a gun
from his pocket. Both Officer Glidden and Sergeant Vance then give multiple
1 The State has not raised in this appeal, nor in the trial court, any arguments regarding the propriety of the submission and consideration of bodycam footage in the context of a Florida Rule of Criminal Procedure 3.190(c)(4) motion to dismiss. 2 verbal commands for Williamson to put his hands up, but Williamson does
not comply. Instead, the footage depicts Williamson walking towards the
officer while repeatedly raising and lowering his gun from a resting position
by his leg, to a position parallel to the ground, to a position over his head.
Williamson continues to act in this manner while still moving forward, in the
direction of Officer Glidden. When the officers get close enough, Sergeant
Vance knocks the gun out of Williamson’s hand, and Officer Glidden tasers
him in the back.
Ultimately, Williamson was secured, and Officer Glidden locked the
gun in his patrol vehicle. At that point, Officer Glidden was able to identify
the gun as an airsoft gun.
Following this incident, the State charged Williamson by information
with one count each of aggravated assault with a deadly weapon (Count I)
and resisting an officer without violence (Count II). Williamson filed a Motion
to Dismiss Count I, pursuant to Florida Rule of Criminal Procedure
3.190(c)(4), arguing that the State could not establish a prima facie case of
aggravated assault with a deadly weapon. In support, Williamson referred to
the bodycam footage of the incident giving rise to Count I, arguing that an
objective factual view of the bodycam recording left no material fact to be
disputed because there was no evidence Williamson intentionally and
3 unlawfully threatened the officer. Williamson emphasized that “a witness’
interpretation of events is not a material fact to be disputed.”
In response to Williamson’s motion, the State filed a traverse, asserting
that there were material facts in dispute and that those facts did establish a
prima facie case of aggravated assault. Specifically, the State asserted that
Williamson’s actions in “refusing to comply with lawful orders, brandishing a
suspected firearm, and waiving [sic] and pointing that suspected firearm
towards Officer Glidden while moving in his direction all comprise an overt
act that the defendant, Mr. Williamson, intentionally and unlawfully
threatened Officer Glidden.”
At the hearing on the motion to dismiss, the parties stipulated to the
admission of Officer Glidden’s bodycam video. After viewing the video, the
trial court labeled it a “close call” but determined the evidence failed to
demonstrate an “overt act intended to place [Officer Glidden] specifically in
fear.” Instead, the trial court determined the evidence only supported the
determination that Williamson intended to not comply with instructions. As a
result, the trial court granted Williamson’s motion to dismiss.
Rule 3.190(c)(4) “permits a defendant to move to dismiss a charge
when ‘[t]here are no material disputed facts and the undisputed facts do not
establish a prima facie case of guilt against the defendant.” We review an
4 order granting a rule 3.190(c)(4) motion to dismiss de novo. See State v.
Paul, 299 So. 3d 542, 544 (Fla. 5th DCA 2020).
In conducting our review, the State is entitled to the most favorable
construction of the evidence with all inferences being resolved against the
defendant. Id. In addition, we bear in mind that a trial judge may not try or
determine factual issues nor consider the weight of conflicting evidence or
the credibility of witnesses when considering a rule 3.190(c)(4) motion to
dismiss. Id. (internal citations omitted).
In applying these principles, we first examine the elements required to
establish a prima facie case. Pursuant to section 784.011(1), Florida
Statutes (2021), an “assault” is “an intentional, unlawful threat by word or act
to do violence to the person of another, coupled with an apparent ability to
do so, and doing some act which creates a well-founded fear in such other
person that such violence is imminent.” Section 784.021(1), Florida Statutes
(2021), then defines “aggravated assault” as including assault “[w]ith a
deadly weapon without intent to kill.”
At issue in this appeal, as framed by the State, is whether the State’s
evidence was sufficient to establish a prima facie case of an intentional act.
To satisfy the intent element of section 784.011, “the State must prove that
the defendant did an act that was substantially certain to put the victim in
5 fear of imminent violence, not that the defendant had the intent to do violence
to the victim.” Pinkney v. State, 74 So. 3d 572, 576 (Fla. 2d DCA 2011); see
also Cambell v. State, 37 So. 3d 948, 950 (Fla. 5th DCA 2010) (“The only
intent inherent in the statutes is the intention to make a threat to do
violence.”).
Here, both the trial court and Williamson acknowledge that Officer
Glidden was in fear, but Williamson argued, and the trial court determined,
that what placed him in fear was the fact Williamson had a gun and was not
listening, “as opposed to an overt act intended to place him specifically in
fear.” Specifically, Williamson argues that “brandishing and waiving [sic] an
airsoft gun while within shooting range is not an overt act within the meaning
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D21-2624 LT Case No. 2021-CF-004934-O
TARVIS LORRAINE WILLIAMSON,
Appellee.
________________________________/
Opinion filed September 23, 2022
Appeal from the Circuit Court for Orange County, Patricia Strowbridge, Judge.
Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.
Matthew J. Metz, Public Defender, and Ryan Belanger, Assistant Public Defender, Daytona Beach, for Appellee.
SASSO, J. The State appeals the order granting Tarvis Lorraine Williamson’s
motion to dismiss count one of the information for aggravated assault with a
deadly weapon, contending the lower court erroneously concluded there was
no disputed issue of material fact. We agree because the evidence
presented by the State created a disputed factual issue sufficient to establish
a prima facie case of guilt against Williamson. As a result, we reverse.
On or about April 29, 2021, Officer Daniel Glidden and Sergeant
Rodney Vance responded to a call from Williamson’s sister, where she
requested to have Williamson trespassed from her apartment. Central to the
issue raised1 in the State’s appeal is bodycam footage depicting the events
following the officers’ arrival to the residence.
The footage depicts Officer Glidden speaking with Williamson’s sister
when Williamson leaves the apartment with his hands full of various personal
items. Approximately one minute later, Williamson walks back toward the
apartment and the officer. Just after the officer asks Williamson’s sister if
Williamson has a gun on him, Williamson pulls what appears to be a gun
from his pocket. Both Officer Glidden and Sergeant Vance then give multiple
1 The State has not raised in this appeal, nor in the trial court, any arguments regarding the propriety of the submission and consideration of bodycam footage in the context of a Florida Rule of Criminal Procedure 3.190(c)(4) motion to dismiss. 2 verbal commands for Williamson to put his hands up, but Williamson does
not comply. Instead, the footage depicts Williamson walking towards the
officer while repeatedly raising and lowering his gun from a resting position
by his leg, to a position parallel to the ground, to a position over his head.
Williamson continues to act in this manner while still moving forward, in the
direction of Officer Glidden. When the officers get close enough, Sergeant
Vance knocks the gun out of Williamson’s hand, and Officer Glidden tasers
him in the back.
Ultimately, Williamson was secured, and Officer Glidden locked the
gun in his patrol vehicle. At that point, Officer Glidden was able to identify
the gun as an airsoft gun.
Following this incident, the State charged Williamson by information
with one count each of aggravated assault with a deadly weapon (Count I)
and resisting an officer without violence (Count II). Williamson filed a Motion
to Dismiss Count I, pursuant to Florida Rule of Criminal Procedure
3.190(c)(4), arguing that the State could not establish a prima facie case of
aggravated assault with a deadly weapon. In support, Williamson referred to
the bodycam footage of the incident giving rise to Count I, arguing that an
objective factual view of the bodycam recording left no material fact to be
disputed because there was no evidence Williamson intentionally and
3 unlawfully threatened the officer. Williamson emphasized that “a witness’
interpretation of events is not a material fact to be disputed.”
In response to Williamson’s motion, the State filed a traverse, asserting
that there were material facts in dispute and that those facts did establish a
prima facie case of aggravated assault. Specifically, the State asserted that
Williamson’s actions in “refusing to comply with lawful orders, brandishing a
suspected firearm, and waiving [sic] and pointing that suspected firearm
towards Officer Glidden while moving in his direction all comprise an overt
act that the defendant, Mr. Williamson, intentionally and unlawfully
threatened Officer Glidden.”
At the hearing on the motion to dismiss, the parties stipulated to the
admission of Officer Glidden’s bodycam video. After viewing the video, the
trial court labeled it a “close call” but determined the evidence failed to
demonstrate an “overt act intended to place [Officer Glidden] specifically in
fear.” Instead, the trial court determined the evidence only supported the
determination that Williamson intended to not comply with instructions. As a
result, the trial court granted Williamson’s motion to dismiss.
Rule 3.190(c)(4) “permits a defendant to move to dismiss a charge
when ‘[t]here are no material disputed facts and the undisputed facts do not
establish a prima facie case of guilt against the defendant.” We review an
4 order granting a rule 3.190(c)(4) motion to dismiss de novo. See State v.
Paul, 299 So. 3d 542, 544 (Fla. 5th DCA 2020).
In conducting our review, the State is entitled to the most favorable
construction of the evidence with all inferences being resolved against the
defendant. Id. In addition, we bear in mind that a trial judge may not try or
determine factual issues nor consider the weight of conflicting evidence or
the credibility of witnesses when considering a rule 3.190(c)(4) motion to
dismiss. Id. (internal citations omitted).
In applying these principles, we first examine the elements required to
establish a prima facie case. Pursuant to section 784.011(1), Florida
Statutes (2021), an “assault” is “an intentional, unlawful threat by word or act
to do violence to the person of another, coupled with an apparent ability to
do so, and doing some act which creates a well-founded fear in such other
person that such violence is imminent.” Section 784.021(1), Florida Statutes
(2021), then defines “aggravated assault” as including assault “[w]ith a
deadly weapon without intent to kill.”
At issue in this appeal, as framed by the State, is whether the State’s
evidence was sufficient to establish a prima facie case of an intentional act.
To satisfy the intent element of section 784.011, “the State must prove that
the defendant did an act that was substantially certain to put the victim in
5 fear of imminent violence, not that the defendant had the intent to do violence
to the victim.” Pinkney v. State, 74 So. 3d 572, 576 (Fla. 2d DCA 2011); see
also Cambell v. State, 37 So. 3d 948, 950 (Fla. 5th DCA 2010) (“The only
intent inherent in the statutes is the intention to make a threat to do
violence.”).
Here, both the trial court and Williamson acknowledge that Officer
Glidden was in fear, but Williamson argued, and the trial court determined,
that what placed him in fear was the fact Williamson had a gun and was not
listening, “as opposed to an overt act intended to place him specifically in
fear.” Specifically, Williamson argues that “brandishing and waiving [sic] an
airsoft gun while within shooting range is not an overt act within the meaning
of the assault statute sufficient to prove a prima facie case of assault.” We
disagree.
The evidence demonstrates that, despite a warning to vacate the
premises and his awareness of Officer Glidden’s presence, Williamson
nevertheless pulls a gun out of his pocket and “brandishes” it about in the
direction of the officer—while ignoring the officers’ repeated commands—as
he walks toward Officer Glidden’s vicinity. When resolving all inferences
deducible from each of these actions against Williamson, the evidence
establishes a prima facie case of an overt act intended to threaten the officer.
6 Compare Battles v. State, 288 So. 2d 573 (Fla. 2d DCA 1974) (holding
evidence was insufficient to support aggravated assault conviction where
facts showed that defendant, who was leaving a supermarket following a
robbery with a gun in his hand, dropped the gun when ordered to do so by
police), with State v. Wilson, 276 So. 2d 45 (Fla. 1973) (determining facts
showing defendant held pistol on victims in such a manner as to threaten the
victims with violence supported instruction for assault). Indeed, the factual
question that arises when viewing Williamson’s actions is a question of
intent. And that is precisely the type of question that should be left to the trier
of fact. State v. Avella, 275 So. 3d 207 (Fla. 5th DCA 2019) (“[Q]uestions of
motive, intent, or knowledge are generally not appropriately decided in a
motion to dismiss, but instead are left to the trier of fact.”). Contrary to the
defense’s argument, no additional “overt act” is legally required in order to
demonstrate a prima facie case of guilt.
In sum, Williamson’s brandishing of an apparent firearm, while moving
toward Officer Glidden and ignoring commands, coupled with his proximity
to Officer Glidden, creates a material issue of fact as to Williamson’s intent.
As a result, the trial court erred in granting Williamson’s motion to dismiss.
Accordingly, we reverse.
REVERSED and REMANDED.
7 TRAVER, J., concurs. COHEN, J., concurs specially, with opinion.
8 Case No. 5D21-2624 LT Case No. 2021-CF-004934-O
COHEN, J., concurring specially.
I concur in the majority opinion in this case. Williamson filed a motion
to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The
State filed a traverse under rule 3.190(d). The State’s traverse, with
specificity, denied under oath the material fact or facts alleged in the motion
to dismiss. Under the plain reading of the rule, the trial court should have
denied the motion.
We do not address this in the majority opinion because the prosecutor,
apparently unaware of the rule, never made that argument below, nor did the
trial judge question the manner in which this motion was handled. Instead,
the trial court conducted a mini-trial and resolved the material factual issue
of whether Williamson’s actions were an intentional act1 supporting an
aggravated assault with a deadly weapon charge. That is not the purpose of
a motion to dismiss under rule 3.190(c)(4). See, e.g., State v.
Kalogeropolous, 758 So. 2d 110, 111 (Fla. 2000). As the majority noted,
1 Whether or not a jury ultimately concludes Williamson committed aggravated assault with a deadly weapon, having viewed the body cam footage, two observations are appropriate. First, Officer Glidden and Sergeant Vance conducted themselves with astounding restraint and discipline. Second, Williamson is fortunate to be alive. 9 when the State files a traverse which specifically denies any critical material
facts or asserts additional materials facts which establish a prima facie case,
a trial court may neither determine factual issues nor consider the weight of
conflicting evidence or the credibility of witnesses when considering a rule
3.190(c)(4) motion to dismiss. See State v. Taylor, 16 So. 3d 997, 999 (Fla.
5th DCA 2009). While a general, conclusory or speculative response by the
prosecution in its traverse is insufficient, such was not the case below. See
id.