Amended Initial Brief – Stalking #1

STATEMENT OF THE CASE

The Appellant was arrested, pursuant to an arrest warrant, and charged with stalking, in violation of Florida Statute 748.048(2). (R. 1 at 1-3). The Appellant and the alleged victims, L. and J. W., are neighbors. (R. 3 at 28). Prior to the initiation of criminal proceedings, one of the alleged victims in the case, J. W., attempted to have the Appellant served with numerous injunctions, regarding identical allegations to the instant case, over the course of three years. The injunctions, which were ultimately determined on the merits, were denied by the Circuit Court, in and for Duval County, Florida. See injunctions in other Duval Cases. The injunctions were dismissed by the Circuit Court on the merits, as “the evidence presented [was] insufficient under Florida Law . . . to allow the court to issue an injunction for protection.” The State, in a sworn traverse, conceded that the State was aware that J. W. had sought several injunctions against the Appellant, though was ultimately unsuccessful.

On February 15, the Appellant was formally charged by Information with one count of stalking. (R. 1 at 11). Subsequently, the Information was amended on July 1. (R. 1 at 47-48). The Amended Information changed three portions of the Initial information filed in this cause. First, the Amended Information expanded the scope of time from January 1 through January 26, to August 6 through January 26. (R. 1 at 47-48). Second, language was included to allege that “cyberstalking” had occurred. (R. 1 at 47-48). Finally, the Amended Information alleged that the Appellant had committed the offense against “J. R. W. and L. E. W.” (R. 1 at 47-48). On the day of jury selection, July 28, the State amended the Amended Information a final time. (R. 1 at 174-78). The State changed the allegation, such that it no longer stated that the offense was committed against “J. R. W. and L. E. W.”, but rather that the offense was committed against “J. R. W. and/or L. E. W.” (R. 1 at 174-78). The Assistant State Attorney, in open court, indicated that “[a]ll that’s happening is the State would file an Information in open court amending the previously amended information from J. W. and L. E. to J. W. and/or L. E.” (R. 3 at 4). The State further requested to leave the cyberstalking allegation in the Second Amended Information, but requested the trial court not read the cyberstalking allegation to the jury either when the Second Amended Information was read, or as part of the jury instructions. (R. 3 at 4).

Prior to the selection of a jury and trial, the Appellant, on April 19, and pursuant to Rule 3.190(c)(4), Florida Statutes, filed a timely motion, entitled “Defendant’s Sworn Motion to Dismiss” (hereinafter Motion to Dismiss). (R. 1 at 24-27). Defendant’s Motion to Dismiss, pursuant to the rule and in compliance with its requirements, alleged that “the undisputed facts do not establish a prima facie case of guilt against the [Appellant].” (R. 1 at 27). In the Motion to Dismiss, the Appellant averred, inter alia, that:
(1) “the facts alleged do not rise to the level of stalking”,
(2) the Appellant lacked mens rea to commit the offense in light of the Circuit Court previously denying injunctions (which have a significantly lower standard of proof) on three separate occasions for the same alleged conduct,
(3) that stalking requires that the conduct complained of not have a legitimate purpose and that the Appellant’s conduct “had a legitimate purpose”, and;
(4) “the behavior exhibited by Defendant would not cause a reasonable person anxiety.”
(R. 1 at 23-27).

On April 27, the State filed its “Traverse”, which both failed to allege that the undisputed facts established a prima facie case of guilt against the Appellant, or dispute factual allegations by Appellant that, if admitted, would compel dismissal by the trial court. (R. 1 at 28-29). Regardless of the glaring deficiencies in the State’s Traverse, the trial court denied the Motion to Dismiss. Doc. 81. There was no written order explaining the trial court’s decision in denying the Motion to Dismiss.

Prior to trial, the State filed two motions in limine. (R. 1 at 50, 52). The State’s first motion in limine (hereinafter State’s First Motion in Limine), which the trial court granted, argued that the Appellant should not be allowed to present any evidence regarding J. W.’s failed efforts to obtain injunctive relief from the actions of her neighbor, the Appellant. (R. 1 at 50). The State’s First Motion in Limine argued that evidence about “the victim’s previous attempts to have injunctions grated (sic) against the defendant” should be inadmissible as it would “be highly prejudicial to the State”, and would lead to “confusion of issues”, “unfair prejudice”, and “mislead the jury.” (R. 1 at 50). The trial court granted the State’s First Motion in Limine and the State, no less than a half a dozen times during the course of the trial made reference to, elicited evidence of, or argued the efforts by Ms. W. to obtain an injunction against the Appellant, all seemingly in violation of their own motion.

On July 25, a jury was selected in this cause. Doc. 135. The trial was held entirely on July 28. Doc 152. As a result of that trial, the Appellant was found guilty by the jury, as to count one of the Second Amended Information. (R. 1 at 171). On August 11, the trial court held a sentencing hearing. Docs. 186- 216. The trial court adjudicated the Appellant guilty of count one sentenced the Appellant to twelve months of probation with mandatory court costs, community service hours, and a requirement that the Appellant remain five hundred feet from the W. residence. (R. 1 at 180). The Appellant, through counsel, filed a timely notice of appeal. (R. 1 at 189-90).

ARGUMENT
THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT’S MOTION TO DISMISS, AS THE STATE’S TRAVERSE ADMITTED FACTS THAT, GIVEN THEIR ADMITTED VERACITY, FAIL TO ESTABLISH A PRIMA FACIE CASE OF THE APPELLANT’S GUILT. IN LIGHT OF THE STATE’S ADMISSIONS, THE TRIAL COURT WAS COMPELLED TO GRANT THE MOTION TO DISMISS.

I. Introduction

The Appellant, on April 19, and pursuant to Rule 3.190(c)(4), Florida Statutes, filed the Appellant’s Motion to Dismiss. (R. 1 at 24-27). Appellant’s Motion to Dismiss, pursuant to the rule and in compliance with its requirements, alleged that “the undisputed facts do not establish a prima facie case of guilt against the [Appellant].” (R. 1 at 27). In the Motion to Dismiss, the Appellant averred, inter alia, that:
(1) “the facts alleged do not rise to the level of stalking”,
(2) the Appellant lacked mens rea to commit the offense in light of the Circuit Court previously denying injunctions (which have a significantly lower standard of proof) on three separate occasions for the same alleged conduct, and
(3) that stalking requires that the conduct complained of not have a legitimate purpose and that the Appellant’s conduct “had a legitimate purpose.” (R. 1 at 23-27).
On April 27, the State filed its “Traverse”, which both failed to allege that the undisputed facts established a prima facie case of guilt against the Appellant or dispute factual allegations by Appellant that, if admitted, would compel dismissal by the trial court. (R. 1 at 28-29). Ignoring the apparent deficiencies in the State’s Traverse, the trial court denied the Motion to Dismiss. Doc. 81. Because of the specific factual allegations that were admitted by the State, in accordance with Florida law, the trial court erred in not granting the Motion to Dismiss.

II. Standard of Review

“The trial court’s ruling on a motion to dismiss pursuant to rule 3.190(c)(4) is reviewed de novo.” State v. Greene, 43 So. 3d 825, 825 (Fla. 1st DCA 2010). “A de novo standard applies for reviewing the denial of a motion to dismiss pursuant to Rule 3.190(c)(4).” Galston v. State, 943 So. 2d 968, 970–71 (Fla. 5th DCA 2006) citing State v. Massey, 873 So. 2d 494 (Fla. 5th DCA 2004). The appropriate appellate standard to “review an order on a motion to dismiss under rule 3.190(c)(4) is de novo.” Burgess v. State, 198 So. 3d 1151, 1153 (Fla. 2d DCA 2016) citing State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002). “Because a motion to dismiss pursuant to rule 3.190(c)(4) requires the lower court to make a pretrial determination of the law of the case when the facts are not in dispute, the standard of review on appeal is de novo.” State v. Benjamin, 187 So. 3d 352, 354 (Fla. 4th DCA 2016) citing State v. Hinkle, 970 So. 2d 433, 434 (Fla. 4th DCA 2007).
“To avoid dismissal under Rule 3.190(c)(4), the State must present sufficient facts that, when viewed in a light most favorable to the State, show a reasonable jury could find in its favor.” State v. Sholl, 18 So. 3d 1158, 1160 (Fla. 1st DCA 2009). “The mere act of filing a sworn document entitled ‘traverse’ is insufficient under the Rule as a matter of law.” State v. Kemp, 305 So. 2d 833, 834 (Fla. 3d DCA 1974). “The state’s failure to traverse the factual allegations of defendant’s motion to dismiss [leave] the court with no alternative but to grant the motion [to dismiss].” Camp v. State, 293 So. 2d 114, 115 (Fla. 4th DCA 1974).

III. Preservation

The Appellant, on April 19, and pursuant to Rule 3.190(c)(4), Florida Statutes, filed the Appellant’s Motion to Dismiss. On April 27, the State filed its “Traverse”, which both failed to allege that the undisputed facts established a prima facie case of guilt against the Appellant or dispute factual allegations by Appellant that, if admitted, would compel dismissal by the trial court. (R. 1 at 28-29). The trial court denied the Motion to Dismiss. Doc. 81.
IV. Application of the Facts to the Law

Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure, which address written motions to dismiss, provides in pertinent part as follows:
The court may at any time entertain a motion to dismiss on any of the following grounds:

(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

Rule 3.190(d) of the Florida Rules of Criminal Procedure, addresses the State’s burden as it pertains to a motion to dismiss, stating:

(d) Traverse or Demurrer. The state may traverse or demur to a motion to dismiss that alleges factual matters. Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be considered admitted unless specifically denied by the state in the traverse.

The plain language of the rule makes it clear that any facts that are alleged in a motion to dismiss “shall be deemed admitted unless specifically denied by the state in the traverse.” Fl. R. Crim. Pro. 3.190(d) (emphasis added). The appellate courts throughout the state have routinely held the State to the plain meaning of the language in this rule, and require explicit, specific denials of factual matters.

“Rule 3.190(d) states and State v. Kalogeropolous, 758 So.2d 110, 112 (Fla.2000), holds that Rule 3.190(d) requires the State to specifically deny factual allegations and if necessary, add additional material facts that meet the minimal requirement of a prima facie case.” Galston v. State, 943 So. 2d 968, 971 (Fla. 5th DCA 2006). Specific denials of fact are required and where the “denial was not specific, [it is] therefore . . . not sufficient to dispute [defendant]’s factual allegations.” Id. A trial court should grant a motion to dismiss where the State fails “to specifically deny his allegation” in the traverse. Id.

“To establish a prima facie case, ‘the State must show only that a reasonable jury could find the defendant guilty of the charged crime under the most favorable construction of the evidence.’” State v. Benjamin, 187 So. 3d 352, 354 (Fla. 4th DCA 2016) citing State v. Yarn, 63 So. 3d 82, 85 (Fla. 2d DCA 2011).

Because the rule requires that the State specifically deny facts in the traverse, “the state’s failure to traverse the factual allegations of defendant’s motion to dismiss [leave] the court with no alternative but to grant the motion [to dismiss].” Camp v. State, 293 So. 2d 114, 115 (Fla. 4th DCA 1974). A factual dispute cannot be raised in a subsequent proceeding, as “under the clear and plain language of the rule, defendant’s factual allegations . . . are deemed admitted” when they are not specifically denied by traverse. Id. “The effect of the state’s failure to specifically deny by traverse under oath some material fact alleged in the motion to dismiss is simply that the fact is considered admitted by the state and nothing more. If those undisputed facts then establish a valid defense, whether it be an affirmative defense or whether it be by negating an essential element of the charge, the motion should be sustained.” Id. quoting State v. Giesy, 243 So. 2d 635, 636 (Fla. 4th DCA 1971).

Where the State’s traverse fails to address the factual allegations contained in a motion to dismiss, “the trial court ha[s] no choice but to assume that the factual matters contained in appellee’s sworn motion to dismiss [a]re in fact true. These undisputed facts constituted a valid defense to the crime charged and the trial court properly dismissed the information.” State v. Georgalis, 421 So. 2d 676, 676–77 (Fla. 4th DCA 1982) citing Ritter v. State, 390 So.2d 168 (Fla. 5th DCA 1980). “The mere act of filing a sworn document entitled ‘traverse’ is insufficient under the Rule as a matter of law.” State v. Kemp, 305 So. 2d 833, 834 (Fla. 3d DCA 1974).

Turning now to the explicit language in the Motion to Dismiss and the State’s Traverse, it is clear that a prima facie case of guilt cannot be established against the Appellant. The Appellant’s Motion to Dismiss contains thirteen enumerated paragraphs. (R. 1 at 24-27). The State’s Traverse contains six enumerated paragraphs. (R. 1 at 28-29). Concededly, some of the enumerated paragraphs of the Motion to Dismiss contain legal argument, rather than factual allegations.

However, turning to the factual allegations, it is clear that the State has failed to establish a prima facie case of guilt, as is required under the rule and the aforementioned case law. In reviewing the sufficiency of the Motion to Dismiss and the State’s Traverse, this Honorable Court, as was the trial court, is compelled to review the allegations as they are contained in the four corners of the pleadings. No extrinsic evidence is admissible or relevant, as a motion to dismiss under rule 3.190(c)(4) is a legal issue, not a factual one.
The first paragraph, admitted by the State, is that the Appellant had been charged with stalking by Information. The State, in paragraph two of its Traverse, states that “the Defendant has ridden his ATV at all hours of the night and shined the headlights of the ATV into the Victim’s home. The Victim has documented 158 incidents of similar conduct, a number of which were captured on video.” There are no other substantive denials or allegations regarding the facts as alleged in the Motion to Dismiss. Further, the State did not embrace its opportunity to otherwise aver additional facts to establish a prima facie evidence of guilt.

In paragraph three of the Motion to Dismiss, it is alleged that the W. live adjacent to the Appellant. The State’s Traverse disputed this allegation, stating that they “live in the same vicinity as each other; however, they are separated by a natural boundary.”

Paragraphs four and five of the Motion to Dismiss discuss the number and quality of the injunctions that J. W. had attempted to obtain, and that there were no additional incidents that were not contained in the denied injunctions. The State’s Traverse indicated a passing awareness of prior injunctions, but neither confirmed or denied any of the specifics alleged. While are deemed to be admitted, they are not dispositive for purposes of a motion to dismiss. The State’s Traverse provided no further information, and did not dispute, or even address, any further allegations contained in paragraphs six through thirteen of the Appellant’s Motion to Dismiss.

The Motion to Dismiss, in paragraph seven, alleged that “the facts alleged do not rise to the level of stalking.” The State did not dispute this fact and it is deemed admitted, which should have led to the trial court granting the Motion to Dismiss. Paragraph seven further alleges that “Defendant lacked the request (sic) mens rea to commit the crime on the dates in question.” This fact, is deemed admitted as a matter of law. As stalking requires a “willful” mens rea, the failure of the State to dispute this allegation (and thus admitting it) evinces a failure to meet the standard of a prima facie case of guilt. Finally, with regard to paragraph seven of the Motion to Dismiss, the Appellant alleged that his conduct “had a legitimate purpose.” The Stalking statute requires that “the course of conduct . . . serves no legitimate purpose.” Thus, if the complained of conduct is consistent with a legitimate purpose, no crime is committed. As the State admitted, through its failure to specifically deny the allegation, that the Appellant’s conduct “had a legitimate purpose”, the case is due to be dismissed.

Paragraph nine of the Motion to Dismiss provides that “although riding an ATV may be loud or bright, such is a zoning issue not a crime. Furthermore, the activity does not rise to the level [of] stalking as defined by the case law.” Although not artfully drafted, paragraph nine makes a clear factual assertion, that the ATV riding complained of is factually insufficient conduct, which fails to rise to the level of a criminal offense. Once again, as the State failed to deny this factual allegation, it is admitted, and the case is due to be dismissed. Again, “the state’s failure to traverse the factual allegations of defendant’s motion to dismiss [leave] the court with no alternative but to grant the motion [to dismiss].” Camp v. State, 293 So. 2d 114, 115 (Fla. 4th DCA 1974).

Further, in paragraph nine, the Appellant averred that “the behavior exhibited by Defendant would not cause a reasonable person anxiety.” This statement, along with the other allegations in the Appellant’s Motion to Dismiss, are deemed admitted by the State. In order to sustain a conviction, the Appellant’s behavior must have been of a quality that it would cause a reasonable person anxiety. The State, failed to state in its Traverse that anyone suffered anxiety or any form of substantial emotional distress. Such an allegation is necessary to establish a prima facie case of guilt. As the undisputed facts are that the Appellant’s conduct would not cause a reasonable person anxiety, the case is due to be dismissed.

Under the definitions, case law, and jury instructions pursuant to the stalking statute, Florida Statute Section 748.048(2), conduct by a putative defendant is not considered stalking if the behavior is either constitutionally protected, or otherwise serves a legitimate purpose. Paragraph thirteen of the Appellant’s Motion to Dismiss states that “Defendant’s behavior serves a legitimate purpose.” As discussed, supra, with regard to paragraph seven, if the behavior complained of serves a legitimate purpose, the conduct cannot be stalking. Again, as the State conceded that the Appellant’s behavior served a legitimate purpose, the case is due to be dismissed.

In paragraph thirteen, the Motion to Dismiss provided a factual basis for the assertion that the behavior served a legitimate purpose, stating “When the housing market collapsed and the owner of the land on which Defendant resides halted construction of a planned subdivision, thus leaving only one home developed to date. Defendant was permitted to reside in the home and in fact asked to periodically patrol the land as a deterrent to crime. . . . Many of the neighbors. . . appreciate Defendant’s presence and the deterrence to trash dumping, drug use and solicitation that his presence has brought.” This factual contention, undisputed by the State, must be accepted as true and the case is due to be dismissed.

In summation, the “facts” for the purpose of the Motion to Dismiss are that the allegations are legally insufficient to sustain a charge of stalking, the Appellant lacked the requisite mens rea to commit the alleged stalking, the Appellant’s conduct served a legal and legitimate purpose, and the alleged conduct cannot cause a reasonable person to suffer substantial emotional distress. Any one of these four facts, as a matter of law, compels that the case be dismissed. “The effect of the state’s failure to specifically deny by traverse under oath some material fact alleged in the motion to dismiss is simply that the fact is considered admitted by the state and nothing more. If those undisputed facts then establish a valid defense, whether it be an affirmative defense or whether it be by negating an essential element of the charge, the motion should be sustained.” Camp at 115 quoting State v. Giesy, 243 So. 2d 635, 636 (Fla. 4th DCA 1971).

In this case, the facts conceded by the State form not one valid defense, but four, any one of which compelled the trial court to grant the Motion to Dismiss. In light of the failings of the State’s Traverse, coupled with the factual allegations and conclusions contained in the Motion to Dismiss, it was error for the trial court to deny the motion. As the standard of review is de novo, this Honorable Court must look to the four corners of the pleadings. In doing so, it is clear that the State made no effort to dispute the four listed factual defenses and this Honorable Court is compelled to dismiss the case.