But a conditional threat would not preclude a finding that M.W. had committed an assault. See State v. Smith, 348 So.2d 637, 639 (Fla. 2d DCA 1977); K.E.H. v. State, 802 So.2d 395, 396 (Fla. 4th DCA 2001); Blanton v. State, 388 So.2d 1271, 1273 (Fla. 4th DCA 1980). Section 843.02 provides in pertinent part that "[w]hoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree.
Since the trial court did not instruct the jury on the theory of the appellant's defense we must reverse and remand for a new trial where the proper instruction is given and the jury is allowed to determine the reasonableness of the force used by the appellant. See State v. Smith, 348 So.2d 637 (Fla. 2d DCA 1977). Reversed and remanded with instructions.
The motion should be granted only where the most favorable construction of the facts to the state does not establish a prima facie case of guilt. State v. Smith, 348 So.2d 637 (Fla.2d DCA 1977). If there is any evidence upon which a jury of reasonable men could convict, the court should deny the motion. State v. Hires, 372 So.2d 183 (Fla.2d DCA 1979)."
Whether the malpractice was an intervening cause of McKinnon's death is not a matter of fact capable of being admitted by the state's demurrer. Cf. State v. Horton, 442 So.2d 408, 409 n. 2 (Fla. 2d DCA 1983) (court not bound to accept conclusory allegations in defendant's motion to dismiss as true in spite of state's failure to traverse); State v. Stewart, 404 So.2d 185 (Fla. 5th DCA 1981) (where circumstances surrounding victim's death establish prima facie case against defendant, dismissal improper where state merely demurred to defendant's motion alleging facts indicating his innocence); State v. Smith, 348 So.2d 637 (Fla. 2d DCA 1977) (whether police officer was trespassing at the time he approached armed defendant was not a matter of fact which could be admitted by state's demurrer). Since the undisputed facts are sufficient to withstand Smith's motion to dismiss, the order of the trial court was erroneous.
A motion to dismiss under rule 3.190(c)(4) should be granted only where the most favorable construction to the state would not establish a prima facie case of guilt. State v. Smith, 348 So.2d 637, 638 (Fla. 2d DCA 1977); State v. Swoveland, 413 So.2d 166 (Fla. 2d DCA 1982). Section 787.02(1)(a), Florida Statutes (1981), defines false imprisonment as "forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against his will with any purpose other than those referred to in section 787.01 [kidnapping]."
PER CURIAM. Affirmed. Straight v. State, 397 So.2d 903 (Fla. 1981); Ho Yin Wong v. State, 359 So.2d 460 (Fla. 3d DCA 1978); Courtney v. State, 358 So.2d 1107 (Fla. 3d DCA 1978); State v. Smith, 348 So.2d 637 (Fla. 2d DCA 1977); Dabney v. Yapa, 187 So.2d 381 (Fla. 3d DCA 1966).
When we review the dismissal of a criminal charge before a trial on the merits, we must look at the facts in a light most favorable to the state to see whether those facts present a prima facie case of guilt. State v. Davis, 243 So.2d 587 (Fla. 1971); State v. Smith, 348 So.2d 637 (Fla. 2d DCA 1977). The pertinent facts in this case are these:
A motion to dismiss should be granted only where the most favorable construction to the State would not establish a prima facie case of guilt. See: State v.Smith, 348 So.2d 637 (Fla.2d DCA 1977). And if there is any evidence upon which a reasonable jury could find guilt, such a motion must be denied.
PER CURIAM. Affirmed. Martinez v. State, 368 So.2d 338, 339-340 (Fla. 1978); Watford v. State, 353 So.2d 1263 (Fla.1st DCA 1978); State v. Smith, 348 So.2d 637, 638-39 (Fla.2d DCA 1977); see State v. Guyton, 331 So.2d 392 (Fla.4th DCA), cert. denied, 336 So.2d 1182 (Fla. 1976).
In a case involving circumstances very similar to those involved herein, it has been held that the conditional nature of the accused's threat did not preclude the establishment of an aggravated assault. State v. Smith, 348 So.2d 637 (Fla.2d DCA 1977). The lower court had held that the statement, "You step foot inside this house and I'll shoot you," addressed to police officers, was a conditional threat and therefore dismissed the case.