       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                     v.

                          ECDUARD PAREDES,
                              Appellee.

                              No. 4D14-3503

                              [May 11, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara McCarthy, Judge; L.T. Case No. 13-7382CF10A.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras, Assistant Attorney General, West Palm Beach, for appellant.

   Samuel R. Halpern, Fort Lauderdale for appellee.

CONNER, J.

    The State appeals the trial court’s order granting Paredes’s motion to
dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The
State argues that the trial court erred in granting the motion because there
is a dispute of fact regarding the timing of events, and there are inferences
from the facts that, when taken in a light most favorable to the State,
likewise create a dispute of material fact. The State also argues that where
the State’s evidence is all circumstantial, whether it excludes all
reasonable hypotheses of innocence may only be decided at trial and
cannot be resolved by a “(c)(4)” motion. We agree and reverse.

                Factual History and Trial Court Proceedings

    The State charged Paredes with attempted burglary and driving while
license suspended or revoked. Paredes filed a sworn motion to dismiss,
pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), as to the
attempted burglary charge.
    The following facts relevant to this appeal are quoted from the motion:1

       1.     The Defendant is charged by Information with
              Attempted Burglary of a Dwelling. It is alleged the
              Defendant attempted to gain entry to the home of [J.S.]
              with the intent to commit theft on May 2, 2013.

       2.     On the date in question, [J.S.]’s 15-year-old daughter,
              [M.S.], had stayed home from school as she was not
              feeling well. She was resting in her bedroom at the rear
              of the house when she heard knocking and banging on
              the front door. Initially, she ignored the knocking as
              she thought it may have been coming from a neighbor’s
              house. When it continued, she got up to investigate.

       3.     When [M.S.] looked out of the front window, she saw a
              black four-door Honda backed into her driveway. She
              was not expecting anyone that morning. She called her
              mother who was at work to ask if perhaps she was
              expecting someone and reported that this car was in the
              driveway and someone had been knocking at the door.
              She was informed that no one was expected and to call
              911, which she did.

       4.     [M.S.] did not see anyone either outside of the car or
              driving the car. She did see the car drive slowly away
              and back into a neighbor’s driveway across the street
              and a couple of houses away. She was able to obtain a
              partial license tag.

       5.     While [M.S.] was on the phone with the 911 operator,
              her father was on the way to the home. When her father
              arrived, she hung up with the operator, walked outside
              and pointed to where the car had backed into the
              neighbor’s driveway.

       ....




1For ease of reading, all of Paredes’s citations to depositions and reports are
omitted from the quoted text.


                                      2
      11.   Soon after this incident, Officer Hess of the Pembroke
            Pines Police Department responded to [J.S.]’s residence.
            He saw a crack/split in the front double doors. [J.S.]
            noted other damage to the door which he interpreted to
            be “like a pry mark.” See attached photos of the door.
            No fingerprints or other physical evidence was collected
            which connect [Paredes] to the door. A canvass of the
            area yielded no additional witnesses and no tools were
            discovered.

Additionally, in the argument section of the motion, the following factual
assertions are made:

      12.   There is no physical evidence such as fingerprints
            which ties the Defendant to the front door of [J.S.’s]
            residence. The Defendant did not attempt to disguise
            himself. He was not wearing gloves. The events in
            question happened in broad daylight at approximately
            11:30 a.m. The front door of the residence is in plain
            view of the street and neighboring houses. The evidence
            suggests someone banged on the front door and
            possibly used something to pry it open, however, no
            witness saw the Defendant at or near the front door. No
            burglary tools were found at the scene. Neither [M.S.]
            nor [J.S.] ever saw the Defendant exit the car, either at
            [J.S.]’s residence or across the street. The car sped off
            only when [J.S.] tried to block it in a driveway. Applying
            the facts to the law, it is respectfully submitted the State
            will be unable to establish a prima facie case of guilt.

    The State filed a traverse in which it admitted many of the factual
allegations in the motion, but denied the following:

      The State specifically DENIES paragraph twelve (12) of the
      Defendant’s Sworn Motion to Dismiss, and further alleges that
      taken [sic] all inferences of the facts in light most favorable to
      the State and against the Defendant, the State can prove a
      prima facie case of Attempted Burglary. Within a few moments
      after [M.S.] last hears someone attempt to forcefully pry open
      her front door (she hears wood split and the door jingle), she
      sees the Defendant’s car slowly leave [M.S.]’s driveway. [M.S.]
      knows that nobody is expected at the house during the day.
      [M.S.] never loses sight of the Defendant’s car as it backs out
      of her residence even until the Defendant backs into another

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      driveway 5-6 houses down the street.           [J.S.] sees the
      Defendant’s car pass him as [J.S.] approaches his residence.
      [M.S.] points out the Defendant’s car to [J.S.] as both see the
      Defendant back his vehicle into another driveway down the
      street into a house that is not the Defendant’s.

(emphasis added).

   Paredes filed a response to the traverse in which he agreed, as
discussed below, with the State’s denials of paragraph twelve.

    During the hearing on the motion to dismiss, the trial court specifically
pointed the State to the case law quoted in the motion to dismiss, stating:
“It’s not sufficient that the facts create a strong probability of guilt. They
must also eliminate all reasonable hypothesis [sic] of innocence.”
Additionally, Paredes argued that “at bar what we have is a situation
where, if established, the case can never survive a JOA.” Paredes also
argued that “there’s no evidence” that it was only seconds between when
the daughter heard the noises at the door and when she looked out of the
window. Specifically, Paredes stated: “[T]here’s no facts that that [sic]
supports the State’s assertion that it was within seconds, not minutes,
because that’s just not the evidence in the case.” The State argued that
the facts of the case can be undisputed, but the inferences from the facts
can still create a dispute as to material facts.

   The trial court orally ruled:

      Based on what the defense has stated, I’m going to take the
      leap. I agree with the defense. I’m granting the Sworn Motion
      to Dismiss. The case is dismissed. Okay. I completely agree
      with the defense on this. There’s not sufficient facts to get this
      case to a jury on attempt [sic] burglary. And I understand the
      Court’s burden is similar to a Summary Judgment. And, as a
      matter of law, the Court is dismissing the case. The Sworn
      Motion to Dismiss is granted.

(emphasis added). The trial court subsequently entered a written order
granting the motion. The State gave notice of appeal.

                             Appellate Analysis

   “‘The function of a ‘(c)(4)’ motion is to ascertain whether the undisputed
facts which the state will rely on to prove its case, establish a prima facie
case, as a matter of law, so as to permit a jury to determine the defendant

                                      4
guilty of the crime charged.’” State v. Santiago, 938 So. 2d 603, 605 (Fla.
4th DCA 2006) (quoting State v. Walthour, 876 So. 2d 594, 595 (Fla. 5th
DCA 2004)). “‘The appellate standard of review is de novo.’” Id. (quoting
Walthour, 876 So. 2d at 595).

   Florida Rule of Criminal Procedure 3.190(c)(4) allows for the filing of a
motion to dismiss on grounds 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 purpose of such a motion is to test the legal
sufficiency of the underlying case, i.e. whether there is a dispute of
material fact (not just a dispute of unsupported conclusory allegations) or
whether there exists a legal defense that would summarily decide the
case.” State v. Nunez, 881 So. 2d 658, 660 (Fla. 3d DCA 2004) (footnote
and citations omitted).

    In response to a motion to dismiss filed under rule 3.190(c)(4), the State
may file a traverse. See Fla. R. Crim. Pro. 3.190(d). “A Traverse requires
more than a did not, did so swearing match. The State is required
to specifically dispute the material facts alleged by defendant or add
additional material facts that meet the minimal requirements of a prima
facie case of guilt.” Nunez, 881 So. 2d at 661 (citations and footnote
omitted). It has been held that motions filed pursuant to rule 3.190(c)(4)
“are treated like summary judgment motions in civil cases.” Id. at 660
(citation omitted). Therefore,

      as in civil cases, the State is entitled to the most favorable
      construction of the evidence with all inferences being resolved
      against the defendant, [however,] this rule presumes that
      some evidence exists and that the State will provide this
      evidence in a clear and specific fashion to dispute the material
      facts posited by the defendant.

Id.

   The main question, as Paredes admits in his answer brief, was whether
Paredes was at the front door of the house trying to break in. “[T]he State
may rely on circumstantial evidence” in traversing a motion to dismiss,
and “all inferences to be drawn therefrom are resolved in the State’s favor.”
State v. Jaramillo, 951 So. 2d 97, 98 (Fla. 2d DCA 2007) (emphasis added).
Therefore, although there was no direct evidence that Paredes was at the
front door of the residence trying to break in, there was circumstantial
evidence of such fact.



                                      5
   In the traverse, the State alleged that: “Within a few moments after
[M.S.] last hears someone attempt to forcefully pry open her front door (she
hears wood split and the door jingle), she sees the Defendant’s car slowly
leave [M.S.]’s driveway.” Although Paredes did not specifically address this
issue in his response to the traverse, he stated:

       The State denied paragraph 12 of the Defendant’s motion to
       the extent it is stated that within minutes of hearing “wood
       split and the door jingle” [M.S.] saw the Honda slowly leave
       her driveway. Initially, paragraph 12 was in the Argument of
       Law section of the motion and is not subject to a traverse.
       That said, the Defendant does not disagree this was her
       testimony. She testified in her sworn statement to the police
       that “they started pulling on the door and prying at the door
       and I heard wood breaking.” Sworn statement of [M.S.]’s
       statement, p. 3, given to police on May 20, 2013. The
       Defendant agrees this is true.

(italicized emphasis added). However, at the motion to dismiss hearing,
Paredes argued that “there’s no facts that that [sic] supports the State’s
assertion that it was within seconds, not minutes, because that’s just not
the evidence in the case.”

   The issue of time span (seconds versus minutes) raises two points.
First, when the State indicated that M.S. heard the sounds a few
“moments” before she saw Paredes’ car leave, it interprets “moments” as
seconds. In opposition, Paredes takes the position that “moments” is
synonymous with minutes, not seconds. Therefore, the time span issue is
either a disputed fact, that would have defeated the motion to dismiss, or
Paredes did in fact agree that time span was only a few seconds, when it
agreed in his response with the State’s traverse regarding “moments.”

   Likewise, if taken as true (moments are a matter of seconds), this fact
also makes the trial court’s order denying the motion to dismiss improper.
In viewing this evidence in a light most favorable to the State, it is clearly
circumstantial evidence that it was Paredes who was at the front door of
the house. Since this testimony establishes such a very short time period
between the sound of prying at the door, evidencing an attempt to enter
the house, and the observation of Paredes in the driveway, there was
sufficient circumstantial evidence that it was Paredes who was attempting
to break into the house. 2

2
 Additionally, in its traverse, the State also specifically alleged “that between
[M.S.] and [J.S.] the Defendant’s vehicle is never out of sight, due to the proximity

                                         6
    The second point, regarding the temporal significance of the
circumstantial evidence, is that the trial court, in its ruling, seemed to
heavily rely upon the fact that there was no direct evidence (forensic,
eyewitness, or admission evidence) placing Paredes at the front door. The
trial court was concerned that the facts, as presented by the motion,
traverse, and response to the traverse, did not refute every reasonable
hypothesis of innocence. In other words, that it could have been someone
else that caused the damage to the door, and Paredes just happened to be
in the driveway at that time, or at least at a time near when M.S. thought
the damage was being done to the door.

    The trial court’s concern that the circumstantial evidence did not
adequately negate every reasonable hypothesis of innocence transformed
into a concern that “[t]here’s not sufficient facts to get this case to a jury
on attempt [sic] burglary.” Thus, it appears that the trial court was making
a determination regarding whether the case would survive a motion for
judgment of acquittal. Paredes led the trial court down this path with the
argument that “at bar what we have is a situation where, if established,
the case can never survive a JOA and here’s why.” Such analysis by the
trial court, however, was in error.

      A trial court cannot dismiss criminal charges simply because
      it concludes that the case will not survive a motion for
      judgment of acquittal at trial. Moreover, if the State bases its
      charges on circumstantial evidence, whether that evidence
      excludes all reasonable hypotheses of innocence may be
      decided only at trial, after the evidence has been presented.

Jaramillo, 951 So. 2d at 99 (emphasis added and citations omitted); see
also State v. Ortiz, 766 So. 2d 1137, 1142 (Fla. 3d DCA 2000) (quoting
State v. Paleveda, 745 So. 2d 1026, 1027 (Fla. 2d DCA 1999)) (“‘Even if the
trial court doubts the sufficiency of the state’s evidence, it cannot grant a
motion to dismiss criminal charges simply because it concludes that the
case will not survive a motion for judgment of acquittal.’”).

   This is also why, although discussing circumstantial evidence, the
cases cited by Paredes in his answer brief, and to the trial court, are not


in time between what [M.S.] heard and saw, no one saw anybody in [the] vehicle
that was in [M.S.]’s driveway other than the Defendant.” This also serves as
either evidence to support that there was only a short time period between the
events or at the least, there is a material fact placed in dispute.


                                      7
persuasive. Those cases dealt with courts analyzing whether a judgment
of acquittal should have been granted, not whether a motion to dismiss
should have been granted.

   We also join the three other districts and hold that “if the state’s
evidence is all circumstantial, whether it excludes all reasonable
hypotheses of innocence may only be decided at trial, after all of the
evidence has been presented,” and the issue cannot be resolved by a rule
3.190(c)(4) motion to dismiss. See State v. Cadore, 59 So. 3d 1200, 1203
(Fla. 2d DCA 2011) (quoting State v. Bonebright, 742 So. 2d 290, 291 (Fla.
1st DCA 1998)); see also State v. Taylor, 16 So. 3d 997, 1002 (Fla. 5th DCA
2009); Ortiz, 766 So. 2d at 1142; cf. State v. Law, 559 So. 2d 187, 189 (Fla.
1989) (explaining that it is the jury’s duty to determine whether
circumstantial evidence is sufficient to exclude every reasonable
hypothesis of innocence beyond a reasonable doubt).

    Therefore, since the motion to dismiss, the traverse, and the response
to the traverse indicate that there are either disputed facts in the case, or
at least, inferences from undisputed facts that establish a prima facie case
of attempted burglary by Paredes, the trial court erred in granting the
motion to dismiss. Although the case law cited by Paredes indicates that
the facts of this case may not survive a motion for judgment of acquittal
at trial, this determination by the trial court was premature at the motion
to dismiss stage.

   Reversed and Remanded.

STEVENSON and DAMOORGIAN, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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