Motion to Dismiss

Motion to Dismiss Count One

The defendant in the above styled cause hereby moves this court to dismiss the charge of aggravated battery with a deadly weapon pursuant to Fla.R.Cr.P. 3.190(c)(4) and more specifically would state;

There are no material disputed facts and the facts upon which the State would rely for conviction include the following;

(1) In order to serve a misdemeanor warrant on the Defendant, her vehicle was pinned by Orange County deputies in their own vehicles in a position so that, in order to extricate herself, she could only move her vehicle backward.

(2) An Orange County deputy, Bob Jones, had positioned his own unmarked vehicle about twelve inches from the back of the defendant’s vehicle, his patrol car facing the rear of her car.

(3) The defendant backed her vehicle into Deputy Jones’ patrol car, causing no damage to the vehicles, and no injury to the deputy.

(4) The defendant’s vehicle moved backward at a slow speed, not ramming speed, and thus caused no damage to either vehicle.

(5) In fact, in his original report, Deputy Jones made no mention that he even felt the defendant’s vehicle touch his own. He added a supplemental report many months later claiming he “felt the impact” (probably after he learned this might be an evidentiary issue vital to the success of this charge).

Wherefore, the defendant asks this court to dismiss count one of the information inasmuch as the above facts do not constitute a prima facie case of guilt against the defendant.

Memorandum of Law

There are several cases in Florida addressing alleged aggravated battery charges which arise from a high speed chase with the police. One such case involved a defendant who “crashed his car into the side of one the troopers’ cars.” That case, Williamson v State, 510 So2d 335 (Fla. 4th DCA 1987), found that no battery occurred because the trooper was not injured by the crash, nor was his body even shaken about the car’s interior cabin. Thus, the aggravated battery against the defendant was overturned.

The holding in Williamson does not stand for the proposition that, because the contact was not directly with the person of the trooper, the defendant could not be charged with a form of battery for unlawfully “touching” the person. Instead, a more accurate interpretation would be that because the “touching” of the vehicle in which the vehicle was riding was so slight, this minimal contact with no injury should not be regarded as aggravated battery with a deadly weapon. So, Williamson does imply that the government be able to prove some injury, cross some threshold, before convicting a defendant of aggravated battery as a result of an auto accident.

The Defendant concedes that someone could be battered although encased in a sheet or other object through which he could be easily injured. The defendant in Clark v State, 783 So2d 967 (Fla. 2001) urged the Florida Supreme Court to adopt a per se rule that,

“the intentional striking of an automobile can never constitute the touching of the vehicle’s occupant for battery purposes unless the occupant suffers some bodily injury.”

In fact, Clark argued that Williamson stood for that very proposition. The Court disagreed. In rejecting the argument, the Court reasoned that in Williamson the officer had not be injured nor “even jostled about in the car as a result of the impact.” The impact in Clark was significantly more violent, the officer’s vehicle being “spun about” upon impact. This degree of impact, according to the Court, was sufficient to constitute battery. Whether an aggravated battery had occurred would remain a question for the jury.

In Wingfield v State, 816 So2d 675 (Fla. 2d DCA 2002), it was charged that the defendant “intentionally rammed a police cruiser with his pickup truck.” The defendant was convicted and conflict with Williamson was cited. The Court determined that no actual conflict existed because of its decision in Clark but did hold that any reading of Williamson that suggested striking of the outer body of an automobile can never constitute touching for battery purposes was neither correct nor supported by Williamson.

The Wingfield court stated,

“The supreme court determined that the facts in Clark, which included testimony that Clark hit the victim’s vehicle at a speed of twenty five miles per hour and ‘spun’ the victim about, were sufficient to allow the jury to determine whether the vehicle was ‘sufficiently closely connected’ to the person so that the striking of the vehicle would constitute a battery on the person.

On remand, we must now consider whether the State’s evidence was sufficient to allow the issue to be presented to the jury. One officer testified that after Wingfield stopped his truck, he saw the reverse lights come on, heard the squealing of tires, and saw smoke coming from the tires. Wingfield’s truck then came backing towards the cruiser, slamming into it and pushing it backwards. The other officer described the contact as ‘pretty full impact’ that required the officers to brace themselves. We believe this testimony is similar to the ‘spun about’ testimony in Clark and conclude that these facts were sufficient to create a proper jury question.”

Based on the Clark decision, the court in V.A. v State, 819 So2d 847 (Fla. 4d DCA 2002) held that crashing into another vehicle does not, in and of itself, constitute aggravated battery, the State must also prove that the passengers were either (1) jostled about the cabin or (2) moved within the cabin. In V.A. v. State, there had been no evidence that the occupants of the struck vehicle braced themselves or were jostled. As such, the facts in V.A. were legally insufficient to establish the offense of aggravated battery. In conclusion, the V.A. court noted:

“The State points out that when V.A. rammed the police car, he caused it to move backwards. The State argues that from this, the trial court could draw the inference that the officers were jostled or shaken up. There may be cases whether the impact is so severe that such an inference can be drawn, but the impact in this case was not of such magnitude, and no one made that argument in the trial court….Summing up, to prove aggravated battery, the State must offer evidence that the occupants of the rammed vehicle; (1) were injured, or, (2) were jostled, or, (3), were moved about within the vehicle, or, (4) had to brace themselves for protection against the impending impact.” id.

While the deputy in the instant case, Bob Jones, has filed a supplemental statement that he “felt the impact”, this, by itself, is insufficient to constitute aggravated battery with a deadly weapon. Of course, after reading this memorandum of law, his testimony may once again be “supplemented”, but in such an event, a second “supplement” should be taken for what it’s worth, very little.

As the cases listed above prove, the state cannot prove that a vehicle is a deadly weapon merely by demonstrating that a crash occurred. Many items from everyday life are not deadly weapons unless they are used in such a manner. A stick, for instance, is not inherently a deadly weapon under this definition but it can become a deadly weapon depending on how it is used. Coronado v State, 654 So2d 1267 (Fla. 2d DCA 1995), Vincente v State, 669 So2d 1119 (Fla. 3d DCA 1996) (A screwdriver’s normal use is not to cause death or great bodily harm but can be used as a knife to stab someone)

Cars are not built to cause death or great bodily harm when used in their ordinary and usual manner and, thus, do not constitute deadly weapons per se. The State will, therefore, have to prove to this court that the facts of this case are more like Clark than Williamson in order to avoid a judgment of acquittal and send to the jury the question of whether the vehicle was used as a deadly weapon.

For the foregoing reasons, the defendant requests dismissal inasmuch as the State cannot prove a prima facie case of guilt against the defendant. The defendant reserves the right to present appropriate case law and argument at the time of hearing in this matter.

Certificate of Service

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email delivery via the Florida Courts E-filing Portal, to the Office of the State Attorney, 415 North Orange Avenue, Orlando, Florida 32801, ____th day of ___________,

_________________________
JOHN P. GUIDRY II, Esquire
320 N. Magnolia Avenue Suite B-1
Orlando, Florida 32801
(407) 423-1117
Facsimile: (407) 423-1118
Florida Bar No: 0990086
Attorney for the Accused

Certificate of Service

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by email delivery via the e-filing portal to Office of the State Attorney, Office of the State Attorney, 415 North Orange Avenue, Orlando, Florida 32801 this ____th day of ___________, 2011.

__________________________
John P. Guidry II

The above statements are true, and I am executing this motion voluntarily and of my own free will, without coercion or undue pressure from anyone. The foregoing document was acknowledged before me this _____ day of ________, 2011, by _______________________ who has presented _____________ as identification and who did take an oath.

__________________________
The Accused