State v. Jenkins , 522 So. 2d 890 ( 1988 )

522 So. 2d 890 (1988)

STATE of Florida, Appellant,
v.
George M. JENKINS, Appellee.

No. 87-1890.

District Court of Appeal of Florida, Second District.

February 17, 1988. Rehearing Denied April 11, 1988.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Alan L. Overton, Asst. Atty. Gen., Tampa, for appellant.

Gaston J. Fernandez, Tampa, for appellee.

LEHAN, Acting Chief Judge.

The state appeals the trial court's dismissal of the criminal charge against the defendant. We reverse.

Defendant was charged with attempted sexual battery. He filed a motion to dismiss the amended information. In response the state filed a traverse. The trial court granted defendant's motion upon a finding that the facts shown did not support the charge of attempted sexual battery.

Without reciting the bizarre facts in any detail, suffice it to say that the facts as alleged in defendant's motion and the state's traverse, while not absolutely indicative of an attempted sexual battery, are sufficient to allow a jury to find defendant guilty of that crime. The defendant's intent, being a state of mind, must be inferred by the trier of fact from the defendant's acts and the surrounding circumstances and is ordinarily not to be determined on a motion to dismiss. See State v. Stenza, 453 So. 2d 169, 172 (Fla. 2d DCA 1984). Similarly, whether defendant's conduct constituted a threat to cause serious personal injury and whether the victim had a reasonable belief that defendant had the ability to carry out that threat are for the jury to decide.

Reversed.

THREADGILL and PARKER, JJ., concur.