       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           STATE OF FLORIDA,
                               Appellant,

                                     v.

                          ANDREW BENJAMIN,
                              Appellee.

                              No. 4D14-2110

                             [March 16, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Bernard I. Bober, Judge; L.T. Case No. 12-007086
CF10A.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellant.

   Carl H. Lida of Carl H. Lida, P.A., Plantation, for appellee.

CONNER, J.

   Andrew Benjamin filed a rule 3.190(c)(4) motion to dismiss his charge
of carrying a concealed firearm, which the trial court granted. The State
appeals, arguing that because different inferences can be drawn from the
undisputed evidence, the concealment issue cannot be determined as a
matter of law. We agree.

             Factual Background and Trial Court Proceedings

   Benjamin was a passenger in a vehicle stopped by two officers for
speeding and seat belt violations. First Officer approached the driver’s
side of the vehicle; Second Officer approached the passenger’s side. As he
approached the vehicle, First Officer saw an empty holster in the driver’s
lap. When questioned, the driver admitted there was a gun in the trunk.
Both occupants were asked to step to the front of the vehicle, and the
driver gave the officers permission to search. Second Officer stayed with
Benjamin and the driver at the front of the vehicle while First Officer
searched the trunk and the driver’s side of the vehicle, finding no gun.
First Officer then approached the front passenger’s side where Benjamin
had been sitting. The passenger door was open, and he could see, in open
view, the half-inch tip of the barrel of a handgun underneath the passenger
seat. First Officer retrieved the handgun, and Benjamin was arrested and
charged with carrying a concealed firearm. At the time of his arrest,
Benjamin did not have a concealed firearm permit.

   Benjamin filed a motion to dismiss pursuant to Florida Rule of Criminal
Procedure 3.190(c)(4). At the evidentiary hearing on Benjamin’s motion,
the State presented evidence in support of its motion to strike and traverse
Benjamin’s motion to dismiss. Of note, Second Officer testified that at no
point did he see a gun visible in the vehicle.

   The trial court granted Benjamin’s rule 3.190(c)(4) motion, whereupon
the State gave notice of appeal.

                            Appellate Analysis

   “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. Hinkle, 970 So. 2d 433, 434 (Fla. 4th DCA 2007) (citing State v.
Pasko, 815 So. 2d 680, 681 (Fla. 2d DCA 2002)).

   On appeal, the State argues that the trial court erred in granting
dismissal because “the state established a prima facie case and was
entitled to the most favorable construction of evidence with all inferences
resolved against [Benjamin].”

    Under Florida Rule of Criminal Procedure 3.190(c)(4), a defendant may
file a pre-trial motion to dismiss arguing that “[t]here are no material
disputed facts and the undisputed facts do not establish a prima facie case
of guilt against the defendant.” The facts on which the motion is based
must be sworn to and should be alleged specifically. Fla. R. Crim. P.
3.190(c). Here, the State conceded that the facts sworn to by Benjamin
were undisputed, but filed a traverse nonetheless, alleging there were
additional material facts not sworn to by Benjamin. The State presented
the additional facts at the hearing on the motion to dismiss.

   At the motion to dismiss stage, “[t]he state need only establish a prima
facie case and ‘is entitled to the most favorable construction of evidence,
and all inferences should be resolved against the defendant.’” Hinkle, 970
So. 2d at 434 (quoting Pasko, 815 So. 2d at 681). 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

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construction of the evidence.” State v. Yarn, 63 So. 3d 82, 85 (Fla. 2d DCA
2011).

    Section 790.01(2), Florida Statutes (2012), provides: “[A] person who
carries a concealed firearm on or about his or her person commits a felony
of the third degree.” A “concealed firearm” is defined as “any firearm . . .
which is carried on or about a person in such a manner as to conceal the
firearm from the ordinary sight of another person.” § 790.001(2), Fla. Stat.
(2012).

    In Ensor v. State, 403 So. 2d 349 (Fla. 1981), our supreme court
interpreted the definition of a “concealed firearm” in a case akin to the
present case. There, police officers stopped a vehicle in which defendant
was the passenger for a traffic violation. The vehicle’s two occupants were
asked to step to the rear of the vehicle. Id. at 351. While two officers
questioned the two occupants, two other officers looked inside the vehicle
with their flashlights. Id. Peering through the front windshield, one officer
saw a portion of a white object protruding from under the passenger
floormat, and from looking inside the opened passenger door, the officer
determined the object was a gun. Id.

   After analyzing the open view doctrine, the supreme court explained the
test for determining whether an item is “concealed”:

      The operative language of that section establishes a two-fold
      test. For a firearm to be concealed, it must be (1) on or about
      the person and (2) hidden from the ordinary sight of another
      person. The term “on or about the person” means physically
      on the person or readily accessible to him. This generally
      includes the interior of an automobile and the vehicle’s glove
      compartment, whether or not locked. The term “ordinary sight
      of another person” means the casual and ordinary observation
      of another in the normal associations of life.         Ordinary
      observation by a person other than a police officer does not
      generally include the floorboard of a vehicle, whether or not the
      weapon is wholly or partially visible.

Id. at 354 (emphasis added). The court found that absolute invisibility is
not a necessary element to a finding of concealment under the statute. Id.
The court also explained that there are no “absolute standards” and that
“a weapon’s possible visibility from a point outside the vehicle may not, as
a matter of law, preclude the weapon from being a concealed weapon under
section 790.001.” Id. (emphasis added).


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    Eighteen years after Ensor, our supreme court again interpreted the
concealed firearm statute in the context of a vehicle. In Dorelus v. State,
747 So. 2d 368 (Fla. 1999), the court held the undisputed facts (1) that a
gun was located in a vehicle in an open console underneath the radio and
(2) that the officer making a traffic stop observed the shiny silver butt of
the gun sticking out of the console, were sufficient for the trial court to
conclude that the gun was not concealed. Id. at 373.

    The court relied on, and clarified, Ensor’s interpretation and analysis of
the “concealed firearm” statute. Id. at 370–71. The court clarified that the
issue of concealment is ordinarily, but not always, one for the trier of fact
and that the focus should be on the manner in which the firearm is carried.
Id. at 371. The court stated that its decision in State v. Teague, 475 So.
2d 213, 214 (Fla. 1985), “recognized this focus by making clear that the
crux of concealment is the location of the weapon in the vehicle.” Dorelus,
747 So. 2d at 371. In Teague, the supreme court also emphasized that
the term “concealed,” as used in the statute, “must be construed in
accordance with its usual and ordinary meaning.” 475 So. 2d at 214.

    In Dorelus, the supreme court announced variables that the trial court
can consider in evaluating whether a firearm has been placed in a vehicle
in such a manner as to be hidden from ordinary sight: (1) the location of
the firearm within the vehicle; (2) whether and to what extent the firearm
was covered by another object; (3) if the defendant utilized his or her body
to conceal the firearm; and (4) the nature and type of the weapon involved.
747 So. 2d at 371–72. The court again reiterated that common sense
should prevail when considering these variables. Id. at 372 (citing Ensor,
403 So. 2d at 354–55).

    The critical question from Ensor—whether either officer could see the
firearm by ordinary observation while standing beside the vehicle with the
passenger seated in the passenger seat—was not directly asked during the
hearing in this case. However, the State asked Second Officer, who was
the first to approach the passenger’s side, if he could see inside the vehicle.
He answered in the affirmative, and stated that he could see the area
around Benjamin, while he was seated in the vehicle, and he saw nothing
obvious nor any firearm in open view.

   Common sense would suggest that the firearm under the passenger
seat was concealed from Second Officer, since he did not see it as he stood
on the passenger’s side speaking with the seated Benjamin. It was not
until Benjamin was outside the vehicle being detained by Second Officer,
that First Officer saw the firearm under the passenger seat. Consequently,
from the testimony of the two officers on scene, there is a conflict as to

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whether the tip of the firearm was clearly visible. This conflict supports
the State’s argument that whether the firearm was in the ordinary sight of
another person, or was concealed, is a question for jury determination.

   We also agree with the State that, arguably speaking, the firearm was
covered by another object—the passenger seat. Although the trial court
found there are no facts or testimony to suggest that Benjamin utilized his
body to conceal the firearm, the lack of such evidence does not decide the
matter. Since First Officer was able to see the firearm only from the
passenger’s side, with the door open and Benjamin out of the car, it seems
that the firearm was visible only under a specific set of circumstances.

    The main evidence that Benjamin attempted to conceal the firearm is
(1) the location of the firearm under the passenger seat with just a half-
inch tip of the firearm exposed, (2) the fact that neither officer saw the tip
of the firearm while both the driver and Benjamin were inside the vehicle,
and (3) First Officer did not see the tip of the firearm during his search of
the vehicle until he approached the open door of the passenger’s side. The
fact that First Officer recognized immediately that the half-inch tip of an
object was, in fact, a gun does not mean the State could not make a prima
facie showing that the firearm was concealed.

    Because the observation of the half-inch tip of the firearm from
underneath the passenger seat did not occur until after the passenger door
was open and the passenger was removed from the seat, the analysis
under Ensor and Dorelus regarding a partially-visible firearm dictates that
it is a jury question as to whether the firearm was within “the casual and
ordinary observation of another in the normal associations of life.”
Dorelus, 747 So. 2d at 371 (quotation marks omitted) (quoting Ensor, 403
So. 2d at 354). We agree with the State that such facts could yield different
inferences as to whether the firearm was concealed within the meaning of
the statute, thus, precluding a rule 3.190(c)(4) dismissal of the charge.

   Reversed and remanded.

GROSS and MAY, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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