State v. Atkinson, 85-1942

Decision Date10 July 1986
Docket NumberNo. 85-1942,85-1942
Citation490 So.2d 1363,11 Fla. L. Weekly 1529
Parties11 Fla. L. Weekly 1529 STATE of Florida, Appellant, v. Thomas Dale ATKINSON, Appellee.
CourtFlorida District Court of Appeals

Jim Smith, Atty. Gen., Tallahassee, and Jim Easley, Asst. Atty. Gen., Daytona Beach, for appellant.

Garrick N. Fox of Fox and Brewer, P.A., Orlando, for appellee.

COBB, Judge.

Appellee, Thomas Dale Atkinson, was charged with tampering with a witness in violation of section 914.22(1), Florida Statutes (Supp.1984). Specifically, the information charged that Atkinson did:

Knowingly use intimidation or physical force or threaten another person, or attempted to do so with intent to cause or induce EDWIN E. ELMORE to withhold testimony, or withhold a record, document, or other object, from an official proceeding.

The defense moved to dismiss, pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), on the basis that the filed depositions indicated that, while Atkinson did strike Elmore in the face, no verbal threats were directed to Elmore. It was conceded that, at the time of the incident, Elmore was a state's witness in a case pending against Atkinson.

In response, the state filed a traverse, stating:

1. During a deposition of the witness Edwin Elmore ... the witness stated that:

a. The defendant approached the witness' car;

b. Without provocation, the defendant struck the victim/witness, Edwin Elmore, in the face;

c. The defendant said something to the passenger in the car of the victim/witness;

d. The defendant, in a hostile manner, ordered the victim/witness, Elmore, from the car;

e. The defendant kicked the victim/witness' car several times;

f. The victim/witness and the defendant, at that point, exchanged angry words with each other with the defendant ordering the victim/witness, Elmore, from the car to "settle the matter."

2. The victim/witness, Edwin Elmore, was a state's witness in a pending case ... in which he was to testify against the defendant;

3. At the time of the incident, the defendant was aware that Edwin Elmore was a state's witness and might be called to testify against him;

4. According to the sworn deposition of Robert Noble:

a. The defendant was abusive, both physically and verbally, to Edwin Elmore;

b. The defendant threatened Robert Noble about testifying to the aforementioned battery and intimidation of Edwin Elmore.

The trial court granted the motion to dismiss, and this appeal ensued.

Section 914.22(1), Florida Statutes (Supp.1984), provides:

(1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to:

(a) Influence the testimony of any person in an official proceeding; or

(b) Cause or induce any person to:

1. Withhold testimony, or withhold a record, document, or other object, from an official proceeding;

2. Alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding;

3. Evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding;

4. Be absent from an official proceeding to which such person has been summoned by legal process; or

5. Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding;

is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The information tracks this statute. Specifically, it charges Atkinson with knowingly using intimidation or physical force or threatening Elmore with the intent to cause or induce Elmore to withhold testimony from an official proceeding. There is no direct evidence that Atkinson hit Elmore with the specific intent to induce Elmore to withhold testimony. However, the traverse shows that Atkinson struck Elmore and that at the time he knew Elmore was to be a witness against him in an...

To continue reading

Request your trial
7 cases
  • Pickett v. State, 3D16-2871
    • United States
    • Florida District Court of Appeals
    • 12 d3 Setembro d3 2018
    ...may establish that a person intends to cause, or induce another to withhold testimony, by circumstantial evidence. State v. Atkinson, 490 So.2d 1363, 1365 (Fla. 5th DCA 1986). Whether a statement or other communication constitutes a true threat that has the probable consequence of causing r......
  • Gill v. State
    • United States
    • Florida District Court of Appeals
    • 23 d5 Julho d5 1993
    ...Overton v. United States, 403 F.2d 444 (5th Cir.1968); United States v. Wilson, 565 F.Supp. 1416 (S.D.N.Y.1983); State v. Atkinson, 490 So.2d 1363 (Fla. 5th DCA1986); State v. McGraw, 474 So.2d 289 (Fla. 3d DCA1983). Whether an accused possesses the requisite intent is a question of fact fo......
  • Brinkley v. State
    • United States
    • Florida District Court of Appeals
    • 14 d5 Maio d5 2004
    ...evidence. State v. Cole, 710 So.2d 122 (Fla. 1st DCA 1998); State v. Bailey, 508 So.2d 1268 (Fla. 4th DCA 1987); State v. Atkinson, 490 So.2d 1363 (Fla. 5th DCA 1986); State v. Milton, 488 So.2d 878 (Fla. 1st DCA 1986); State v. Lukas; State v. Williams, 400 So.2d 1326 (Fla. 4th DCA 1981). ......
  • Puy v. State
    • United States
    • Florida District Court of Appeals
    • 15 d3 Abril d3 2020
    ...look only to the prima facie sufficiency of the alleged facts; the trial judge may not evaluate the evidence." State v. Atkinson , 490 So. 2d 1363, 1365 (Fla. 5th DCA 1986). " Criminal Procedure Rule 3.190(c)(4) motions should be granted rarely, for in most cases there are factual disputes ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT