JUDGE'S RULING
"The Court finds that Mr. Tenhoopen was the initial, completely unprovoked aggressor."
"The Court finds the testimony of Mr. Smith and Ms. Kirbach more credible than that of Mr. Tenhoopen, and the majority of Mr. Tenhoopen’s testimony rather incredible."
"Mr. Tenhoopen’s demeanor while testifying, as well as his testimony, which was contradicted by the credible testimony of Mr. Smith and Ms. Kirbach, the 911 call made by the female Costco employee, his own 911 call, his audio-taped interview with detectives within hours of the shooting, as well as photographs of the scene, clearly demonstrate his lack of credibility."
IN THE THIRTEENTH JUDICIAL CIRCUIT COURT FOR HILLSBOROUGH COUNTY, FLORIDA
Criminal Justice and Trial Division
STATE OF FLORIDA, CASE NO: 22-CF-016442
DIVISION: TD2
IAN M. SMITH, Defendant.
_________________________/
ORDER GRANTING DEFENSE’S MOTION TO DISMISS BASED ON STATUTORY
IMMUNITY
THIS MATTER is before the Court on “Defense’s Motion to Dismiss Based on Statutory Immunity,” filed on March 22, 2024. The Court held an evidentiary hearing on Mr. Smith’s motion on June 2 and 3, 2025. After considering Mr. Smith’s motion, the court file and record, the evidence received for review prior to the hearing and presented during the evidentiary hearing, and the written arguments of counsel, the Court finds as follows.
PROCEDURAL BACKGROUND
Mr. Smith is charged with Attempted Murder in the First Degree, Aggravated Battery, and Aggravated Assault, based on events which occurred on December 5, 2022. The State alleges that
Mr. Smith shot the victim, Lance Tenhoopen, during a confrontation on a roadway in Brandon. Mr. Smith contends that he shot Mr. Tenhoopen in self-defense and moves for immunity under the
“Stand Your Ground” law.
APPLICABLE LAW
Section 776.032, Florida Statutes, commonly referred to as the “Stand Your Ground”
statute, provides that a person is immune from criminal prosecution for the use of force if the
person is justified in using such force as permitted in sections 776.012, 776.013, or 776.031, unless
the victim is a law enforcement officer. §776.032(1), Fla. Stat. (2022). Under section 776.012:
(1) A person is justified in using or threatening to use force, except
deadly force, against another when and to the extent that the person
reasonably believes that such conduct is necessary to defend himself
or herself or another against the other’s imminent use of unlawful
force. A person who uses or threatens to use force in accordance
with this subsection does not have a duty to retreat before using or
threatening to use such force.
(2) A person is justified in using or threatening to use deadly force
if he or she reasonably believes that using or threatening to use such
force is necessary to prevent imminent death or great bodily harm to
himself or herself or another or to prevent the imminent commission
of a forcible felony. A person who uses or threatens to use deadly
force in accordance with this subsection does not have a duty to
retreat and has the right to stand his or her ground if the person using
or threatening to use the deadly force is not engaged in a criminal
activity and is in a place where he or she has a right to be.
§776.012(1)-(2), Fla. Stat. (2022).
Section 776.032(4) further provides:
In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the community from criminal prosecution provided in §776.032(1). Accordingly, a defendant claiming immunity under the Stand Your Ground statute must establish a prima facie claim of self-defense. If the requisite claim has been established, the burden of proof then shifts to the State of Florida to prove by clear and convincing evidence that the defendant is not entitled to such relief. Clear and convincing evidence “requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue.” Bouie v. State, 292 So. 3d 471 (Fla. 2d DCA 2020) (quoting Merritt v. OLMHP, LLC, 112 So. 3d 559, 561 (Fla. 2d DCA 2013) (citation omitted)). “The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.”
EVIDENTIARY HEARING
During the June 2 and 3, 2025, evidentiary hearing, alleged victim Lance Tenhoopen, Hillsborough County Sheriff’s Office (HSCO) Deputy Michael Durig, and HCSO Detectives Christopher Warford, Clayton Rideout, and Joseph Kohler, testified for the State. Additionally, the State introduced State’s Exhibits 1 through 15. The Defense called Meriam Kirbach and Joseph Thomas, and Mr. Smith testified in his own defense. The Defense also introduced Defense Exhibits 1 through 5.
1. STATE’S PRESENTATION:
Testimony of HCSO Deputy Michael Durig
Deputy Durig testified that on December 5, 2022, he arrived on the scene at 6:01 a.m. or 6:02 a.m., within three to four minutes of dispatch, and observed Mr. Tenhoopen standing outside his Lamborghini, which was partially obstructing two lanes of traffic. Mr. Tenhoopen walked towards Deputy Durig and was holding a cloth over his neck as he was bleeding from his right neck area. Deputy Durig did not see whether Mr. Tenhoopen was sitting inside his car before he (Deputy Durig) arrived. Another deputy who arrived at the scene placed an orange cone by an area of blood spatter or droplets and another where a shell casing was located. Mr. Tenhoopen told Deputy Durig that he been swerving back and forth in the one lane road behind Mr. Smith.1 He further advised Deputy Durig that the area where Deputy Durig initially parked his patrol vehicle is the same area where Mr. Smith was parked at the time of the 1 In State’s Exhibit 4, clips of Deputy Durig’s BWC recording, Mr. Tenhoopen also advised him that he and his girlfriend were getting gas, Mr. Smith cut them off, and he believes Mr. Smith was mad because his (Mr. Tenhoopen’s) girlfriend was following him.
After the shooting, Deputy Durig testified he moved his vehicle away from where he had initially parked it after realizing how close an evidence marker was located to his vehicle. The deputy’s car left a water mark which is depicted within the crime scene photos introduced in evidence. Deputy Durig testified Mr. Tenhoopen’s Lamborghini was partially obstructing both the middle lane and the left turn lane. The open door of the Lamborghini would have further obstructed the left turn lane as would Mr. Tenhoopen if he were standing outside of the car. Deputy Durig testified he observed blood in the left turn lane, about thirty to forty feet down the road from where he initially observed Mr. Tenhoopen standing by his Lamborghini. He never observed Mr. Tenhoopen thirty to forty feet down the road near the blood that was located. The shell casing was located less than ten feet from where Deputy Durig’s vehicle was initially parked, or about forty to fifty feet down the road from where he initially observed Mr. Tenhoopen standing. A bullet fragment was later located by a detective who also located additional blood in the same area as the fragment, within ten to fifteen feet of where Deputy Durig’s vehicle was initially parked.
Testimony of HCSO Detective Christopher Warford
Detective Christopher Warford, the scene detective, testified that when he arrived at the
shooting scene between 7:00 a.m. and 7:30 a.m., he observed a red Lamborghini parked in the
roadway. He learned from other deputies that the suspect was in his vehicle at a Starbucks a short
distance away, and he responded to the Starbucks around the corner, which he described as scene
number two. Once he arrived at the Starbucks, he noted that deputies were present, Mr. Smith’s
black Ford Fusion was backed into a parking space, and Mr. Smith was handcuffed in the back of
a patrol car.
Detective Warford got Mr. Smith out of the patrol vehicle and read him his rights. Mr.
Smith was very cooperative and compliant. Mr. Smith advised him that he was driving to Starbucks
to get coffee as he does every morning when he noticed a car swerving or “fishtailing” behind
him.2 Initially, Mr. Smith thought the driver of that car might be having a medical issue, but as the
car sped towards the back of his and was on his bumper, he thought it was a road rage situation.
He knew that the road was about to turn from one lane to two and decided to stay to the left and
slow down so that the car could pass him on the right. The car sped past him on the right. Once it passed him, the driver moved the car back into his (Mr. Smith’s) lane and stopped, blocking Mr. Smith’s car in the road. A man came out of the car and came towards him. Mr. Smith retrieved his gun from the glove compartment and told the man that he was armed and to stop approaching. The man questioned whether Mr. Smith was going to shoot him and said he was unarmed. The man kept coming at him and he (Mr. Smith) felt like he had no choice but to shoot. Mr. Smith was afraid of the man and he shot twice. After the first shot, the gun jammed, the man kept coming towards him, he fixed the jam and Mr. Smith shot at the man a second time. The man finally stopped. Mr. Smith called 911 and also observed a female driver on the other side, and he realized she was with the driver of the Lamborghini and that the entire road was not actually blocked so he could leave the scene. Mr. Smith gave the detective permission to search his car. The search revealed a live round
of ammunition on the driver’s side floorboard, an apparent bullet hole in the A pillar, a spent shell
casing on the exterior windshield well, and the gun. Detective Warford went back to the scene of the shooting. The Lamborghini was obstructing the middle lane and partially obstructing the left turn lane. He observed two areas of blood, evidence marker #1, two drops of blood by the Lamborghini, and at evidence marker #2. He testified that Mr. Tenhoopen appeared to have been shot close to evidence marker #2 as, generally, the most amount of blood would normally fall at the point of impact, but acknowledged he was not a blood spatter expert and did not know how the blood got there. Inexplicably, Detective Warford did not take measurements from the Lamborghini to the
evidence marker cones or direct anyone to do so, and acknowledged he did not have a good reason for not taking any measurements at the scene. He also indicated he might have taken measurements if Mr. Smith’s vehicle was still at the scene, and he was not aware Mr. Tenhoopen had advised Deputy Durig that Mr. Smith’s vehicle was stopped where Deputy Durig had initially parked.
Instead, Detective Warford visually estimated that the distance between evidence markers #2,
blood droppings on the street, and marker #3, a shell casing on the street, was fifteen feet, and
evidence marker #2 was about twenty feet from the back of the Lamborghini.
Testimony of HCSO Detective Clayton Rideout
Detective Rideout responded to the scene and found what he described as a “blood trail” as well as a bullet fragment on the road and a drop of blood inside the Lamborghini. It is unclear what he described as a “trail” because he did not ask crime scene to photograph it; he indicated he observed blood where evidence markers #1 and #2 would have been, and surmised that because
he called it trail, there may have been “a drop or so here and there,” but not enough to photograph.
However, the bullet fragment was photographed as evidence marker #4. Detective Rideout also did not measure distances between the Lamborghini and the items of evidence, but instead conducted a visual estimate. He estimated that the blood trail extended thirty to forty-five feet from the back of the Lamborghini and that the fragment was about sixty feet from the back of it.
Testimony of HCSO Detective Joseph Koehler
Detective Koehler was assigned as the lead detective. He first responded to Tampa General
Hospital (“TGH”) between 7:45 a.m. and 8:15 a.m., and conducted an audio-recorded interview
with Mr. Tenhoopen.3 Mr. Tenhoopen stated that he was driving in front of his girlfriend on the
way to Costco to fill both of their cars with gas. His girlfriend was driving slowly so he decided to
swerve back and forth in the lane in front of her to irritate her as he knows she hates it when he
does that. At the time, the road was one lane. He noticed a car driving slowly in front of him and
became concerned that there was something wrong with the car or the driver. Mr. Tenhoopen claimed he stopped swerving when he saw Mr. Smith’s vehicle, and never tailgated or rode the tail of Mr. Smith’s vehicle or drove aggressively that day. He claimed that he was on the phone with his girlfriend at the time but when he passed the car, the call dropped. As he passed Mr. Smith’s vehicle, he heard something, apparently indicating Mr. Smith took a shot at him. Once in front of the car, he could not see his girlfriend’s car so he stopped his car, got out, and walked to his left to the median to flag her down and tell her to pass him. He stated that he never got within forty to fifty feet of Mr. Smith’s car and no words were exchanged. He stated that his girlfriend was stopped behind Mr. Smith. Mr. Tenhoopen saw a muzzle flash. He noticed his girlfriend drove her car to the right of him and pulled in front of his car. He ran to her and she helped him compress the wound with a cloth while he called 911. He noticed Mr. Smith driving away. His girlfriend followed Mr. Smith and the police arrived. Once the police arrived, she came back. After interviewing Mr. Tenhoopen, Detective Koehler responded to the shooting scene. Mr. Tenhoopen’s car had already been moved and all of the evidence collected. Detective Koehler interviewed Mr. Tenhoopen’s girlfriend, then Mr. Smith. Detective Koehler’s recorded interview with Mr. Smith was admitted as State’s Exhibit 2. Detective Koehler acknowledged that Mr. Smith told him he suffered from a myriad of physical ailments, but he did not ask Mr. Smith about those health issues. Detective Koehler made the arrest based on the interviews and the fact that Mr. Smith didn’t retreat. Testimony of Lance Tenhoopen Mr. Tenhoopen testified that he travels to Costco every Monday before six in the morning to fill his car with gas. On December 5, 2022, he travelled with his girlfriend, Meriam Kirbach, to Costco to get gas in their own cars. He was driving his red 2013 Lamborghini Gallardo Spyder and Ms. Kirbach was following behind him in her Hyundai Sonata. It was 5:30 a.m., there were no other cars on the road and it was pitch black. He was driving approximately forty miles per hour. Ms. Kirbach drove slowly so he was driving from side to side to mock her. He had the radio in his car “cranked” because he is completely deaf in one ear and partially deaf in the other. When they rounded a bend in the road, he noticed taillights in front of him. He stopped swerving. The car in front was driving slowly, which caused Mr. Tenhoopen to believe that it might be having some kind of car trouble. When he got closer to the car it almost came to a stop and then sped up again but continued to drive slowly. He decided to pass the car when the lane turned from one lane to two. He claimed he did not drive aggressively in relation to this car. As he passed this car, he noticed that Ms. Kirbach was not following him; he got back into the left lane, and stopped in front of the car he had just passed to look for her. He got out of his car, walked laterally to the median to wave for his girlfriend to pass around Mr. Smith’s stopped car. He could not see her car because of the lights of Mr. Smith’s car. He never walked briskly towards Mr. Smith’s car or approached it and no words were exchanged between them. He testified that Mr. Smith’s car was within thirty to forty feet of the Lamborghini. He saw a muzzle flash from the car but did not recall hearing a shot; his car radio was cranked up during the incident.4 He testified that he never saw Mr. Smith’s car door come ajar/open or the interior dome light of Mr. Smith’s car come on.5 After he was shot, he saw Ms. Kirbach drive around the right side and park in front of his car. He went back to his car and sat down at the edge of the car, they applied a cloth to the wound, and he called 911. While on the phone with 911, he and Ms. Kirbach noticed Mr. Smith pull to the right and drive away. Ms. Kirbach got in her car and followed to obtain the tag number of Mr. Smith’s car. Mr. Tenhoopen claimed that while he was on the phone with 911, he was walking the scene looking for the cross pendant that fell from his chain when he was shot. He speculated that must be why blood was found in areas indicating he had approached Mr. Smith’s car. On cross-examination, Mr. Tenhoopen testified that he never told Ms. Kirbach to not tell the truth about his driving that morning. He claimed to have been on the phone with Ms. Kirbach when he passed Mr. Smith but the call dropped. He claimed that Ms. Kirbach told him that when Mr. Smith stopped suddenly, she slammed on her brakes and her phone fell to the floor board of her car. He admitted to never telling law enforcement that he was walking around looking for his cross at the scene, and that the first time he made such a statement was at an earlier court hearing in October 2024. He admitted to partially obstructing both lanes when he stopped in the lane in 4 In his audio recorded interview taken within hours of the shooting, Mr. Tenhoopen claimed that the first shot occurred as he was passing Mr. Smith’s vehicle. State’s Exhibit 3.5 This testimony is contradicted by Mr. Tenhoopen’s audio statement to law enforcement in which he stated that he saw the driver slightly open his door and the dome light come on which Mr. Smith was driving. He stated that he was standing on the median when he was shot. He is five feet, eleven inches tall and weighed 215 pounds at the time of the shooting.
2. DEFENSE PRESENTATION:
Testimony of Meriam Kirbach
Ms. Kirbach testified that at the time of the instant offense, Mr. Tenhoopen was her boyfriend and she was following behind him as they were in their respective cars on their way to Costco to get gas. It was early morning, very dark, and they were initially the only cars on the road. Ms. Kirbach testified that she was not honest when she spoke to law enforcement after the shooting. Mr. Tenhoopen had told her not to tell law enforcement that he had been swerving and tailgating Mr. Smith. She did not tell law enforcement he was swerving or riding on Mr. Smith’s bumper. She did not want to upset Mr. Tenhoopen, who can be very defensive and has a bad temper. She testified that Mr. Tenhoopen passed Mr. Smith’s vehicle very fast, stopped in front of him very fast, and his tires screeched when he stopped. She passed in the furthest right lane and, while she was driving, witnessed Mr. Tenhoopen get out of his car, waving his arms up and down. His mouth was moving but she could not hear what he was saying. Mr. Tenhoopen appeared angry and was walking aggressively towards Mr. Smith’s car. She didn’t see any weapons in Mr. Tenhoopen’s hands. When she heard the gunshot, she stopped her car. Mr. Tenhoopen approached her and she helped him apply pressure to the wound. He was sitting in his car talking to 911 when they noticed Mr. Smith’s car leaving. She entered her car and followed Mr. Smith to the Starbucks in an attempt to get his license plate number. Mr. Tenhoopen was standing at the door of his vehicle when she left and she never saw him walking around looking for his cross.
She saw Mr. Smith’s vehicle backed into a parking space at Starbucks, so she returned to
scene of the shooting and stayed on the scene with Mr. Tenhoopen’s car while he was transported
to the hospital. Mr. Tenhoopen called her from the hospital before she was interviewed. She also
testified that she was not on the phone with Mr. Tenhoopen while he was passing Mr. Smith and
that she did not drop her phone because she slammed on her brakes. Testimony of Joseph Thomas Mr. Thomas testified that he owns a forensic consulting firm and specializes in crime scene reconstruction. His experience involves fourteen years in law enforcement and courses in forensics and crime scene reconstruction. He was hired in this case to determine distances. He never conducted a full scene reconstruction, and formed his conclusions by using the crime scene photos to attempt to establish where items such as the evidence markers and water mark were located, and taking measurements at the scene. All of his measurements are approximate distances. Mr. Thomas first measured the distance from where Providence Lakes Boulevard converts from a single lane to a double lane and the back of Mr. Tenhoopen’s red Lamborghini. That distance measured is 309 feet, three inches. The distance from the Lamborghini’s driver’s door area to crime scene marker #2 (blood droplets) measured twenty-eight feet, seven inches. The distance from crime scene evidence marker #2 to evidence marker #3 (shell casing) was twenty feet, four inches. From the back of the Lamborghini to evidence marker #3, the distance was forty-eight feet, eleven inches. From the back of the Lamborghini to the water mark, that distance measured fifty-six feet, three inches.
Testimony of Ian Smith
Mr. Smith testified that he shot at Mr. Tenhoopen because he was terrified. He testified that Mr. Tenhoopen was chasing him right on his bumper, passed him, and then blocked him in. He felt trapped. Mr. Smith viewed Mr. Tenhoopen as a young, healthy male with a wide body and fifty pounds heavier than him. He stated that he didn’t invite this attack. Mr. Tenhoopen knew he was armed and kept coming at him. Mr. Smith felt as if he had no other choice. Mr. Smith testified that he was going to Starbucks that morning as he does every morning. Only on this date, he was going earlier than usual. He was very excited because he was starting a new, second job that morning, revamping the Veteran’s Administrations suicide hotline system and had been told earlier that he was going to have a child. For these reasons he had barely slept that night. He was travelling on Providence Lakes Boulevard headed to Starbucks. It was pitch black and there were no other cars on the road.
Mr. Smith was still driving on a one lane section of the road when he noticed headlights behind him swerving back and forth. At first, he thought that the driver might be having a medical emergency, so he slowed down. The car came up behind him, and stopped swerving but was so close to his bumper, that he could not see the car’s headlights. Mr. Smith sped up to thirty to forty-five miles per hour but the car stayed on his bumper. Mr. Smith realized that this was not a medical emergency. He kept thinking to himself that the road would become two lanes soon and hoped that the driver of the car would go around him without incident. When the road became two lanes, the car passed him on the right with its engine roaring, sounding “the loudest I’ve ever heard.” After the car passed, it quickly came back in Mr. Smith’s lane, screeching to a stop in front of him. Mr. Smith testified that he thought, “this guy is going to kill me so I stopped right away.” Mr. Smith has a permit to carry a firearm. He testified that the minute he saw the car stop in front of him, he reached in his glove compartment and removed his handgun. Mr. Smith testified that as is his custom, all four windows of his car were down. Once Mr. Smith stopped, he saw the driver of the car, Lance Tenhoopen, open the door and get out. Mr. Tenhoopen began walking towards Mr. Smith waving his arms up and down and talking. Mr. Smith testified that he thought that Mr. Tenhoopen didn’t have good intentions and that he (Mr. Smith) was going to either die or get seriously hurt. As Mr. Tenhoopen approached him, Mr. Smith opened his driver’s door slightly and trained his gun on him. Mr. Tenhoopen said “you’re going to shoot me” twice. Mr. Smith responded “yes, I will. Stop, stop.” Mr. Tenhoopen kept coming towards him. Mr. Smith testified that he fired the first shot when Mr. Tenhoopen was about fifteen feet away. He then realized that the slide of his gun was stuck. In a panic because Mr. Tenhoopen kept coming towards him after the first shot was fired, Mr. Smith quickly released the slide and fired a second shot at Mr. Tenhoopen. He testified that Mr. Tenhoopen was approximately ten feet away from his car when he fired the second shot. After the shot, Mr. Tenhoopen put his hand to his chest and said, “you broke my chain.” He further stated, “I’m unarmed dude.”
Mr. Smith stated from the moment that Mr. Tenhoopen pulled his car back into his lane and stopped, he had tunnel vision on Mr. Tenhoopen. Mr. Smith testified that the entire incident, from the moment Mr. Tenhoopen pulled in front of him until Mr. Smith shot at him twice, took four to five seconds at most. Mr. Smith stated that he did not see or notice Ms. Kirbach’s car behind him or pass to the right of him. He didn’t notice that there was a third lane to the right of the two lanes that Mr. Tenhoopen’s car was blocking. He also stated that, while he didn’t see a weapon in Mr. Tenhoopen’s hands, the way Mr. Tenhoopen was acting made him feel as if he was armed, and regardless of whether Mr. Tenhoopen was armed or not, Mr. Smith still feared that he could be killed or harmed by Mr. Tenhoopen. The hearing testimony is in contradiction to the audio taped interview Mr. Smith gave to detectives on December 5, 2022. In the interview he stated that he believed that Mr. Tenhoopen said he was unarmed before Mr. Smith fired the first shot. Regardless, according to the credible testimony of Mr. Smith, Mr. Tenhoopen kept coming towards his car after the first shot. State’s Mr. Smith testified that he was fifty-one years old at the time. He is six feet tall and weighs 165 pounds. He has a myriad of serious debilitating medical conditions. His main illness is systemic sclerosis. This disease causes the hardening of his skin and organs and results in cascading illnesses including interstitial lung disease, which is deadly in and of itself, and results in reduced stamina, medication-caused osteopenia which weakens his bones; and rheumatoid arthritis which limits the use of his hands and feet. He also suffers from two degenerative cervical discs. Mr. Smith testified that he takes between seven and eight medications a day to manage his illnesses. For these reasons he didn’t and doesn’t believe that he was or is capable of defending himself from a physical attack.
At the hearing, Mr. Smith could not remember whether he opened his driver’s door slightly or whether the dome light of his car came on. However, Mr. Tenhoopen told detectives during his
audio recorded statement taken within hours of the shooting that Mr. Smith opened the driver’s
door slightly and the interior dome light of Mr. Smith’s car was on. When challenged as to why he didn’t use the right most lane to get around Mr. Tenhoopen. Mr. Smith stated that even when he was speaking with the detectives, hours after the incident, he still believed there were only two lanes.
PHYSICAL EVIDENCE ADMITTED:
State’s Exhibit 1: 911 calls of female caller, Mr. Smith, and Mr. Tenhoopen
State’s Exhibit 2: Interview of Ian Smith
State’s Exhibit 3: Interview of Lance Tenhoopen
State’s Exhibit 4: Deputy Durig’s BWC clips
State’s Exhibit 5A-B: Aerial photos of area
State’s Exhibit 6A-C: Photos of crime scene
Page 15 of 22
State’s Exhibit 7: Aerial photo with markings
State’s Exhibit 8A-U: Photos of Mr. Smith’s Ford and firearm
State’s Exhibit 9A-N: Photos of scene
State’s Exhibit 10A-D: Photos of marker 4
State’s Exhibit 11: Aerial photo with markings
State’s Exhibit 12 A-D: Aerial photos of area
State’s Exhibit 13A-C: Photos of Mr. Tenhoopen’s injury
State’s Exhibit 14: Detective Gay’s BWC video of Detective Warford’s interview
State’s Exhibit 15: Aerial photo with markings
Defense Exhibit 1: Photo of water mark in roadway
Defense Exhibit 2- Still from aerial with Tenhoopen’s markings
Defense Exhibit 3: Aerial photo with markings by Kirbach
Defense Exhibit 4A-C: Photos of crime scene markers
Defense Exhibit 5: CD video of drive down Providence Lake Boulevard
LEGAL ANALYSIS
At the outset of the hearing, the State conceded and the Court found that Mr. Smith had established a prima facie case of self-defense, therefore, the burden shifted to the State to prove by clear and convincing evidence that he was not entitled to immunity under section 776.032. The Court finds that the State has not met its burden. When factual disputes exist in a case where immunity is raised, the trial court must decide the matter by confronting and weighing only factual disputes.
See Peterson v. State, 983 So. 2d 27
(Fla 1st DCA 2008).
“In evaluating the evidence at a hearing on immunity, an objective standard applies.” Huckelby v. State, 313 So. 3d 861, 866 (Fla. 2d DCA 2021). “The trial court must determine whether, based on the circumstances as they appeared to the defendant, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant.” Garcia v. State, 286 So. 3d 348, 351 (Fla. 2d DCA 2019); see also State v. Quevedo, 357 So. 3d 1249, 1253 (Fla. 3d DCA 2023) (“Thus the objective standard of what is reasonable must be measured in light of the facts and circumstances as they appeared and were known to the individual defendant.”). The State submits that the Court should find that Mr. Smith did not face an imminent threat of great bodily harm; that Mr. Smith acted unreasonably by shooting Mr. Tenhoopen; and that Mr. Smith used an “uncalled-for lethal level of force” thereby removing his cloak of immunity under the Stand Your Ground law.
First, based on the responses, body language, and demeanors of Mr. Smith, Ms. Kirbach,
and Mr. Tenhoopen, the only eyewitnesses to the shooting, the Court finds the testimony of Mr.
Smith and Ms. Kirbach more credible than that of Mr. Tenhoopen, and the majority of Mr.
Tenhoopen’s testimony rather incredible. Mr. Tenhoopen’s demeanor while testifying, as well as
his testimony, which was contradicted by the credible testimony of Mr. Smith and Ms. Kirbach,
the 911 call made by the female Costco employee, his own 911 call, his audio-taped interview
with detectives within hours of the shooting, as well as photographs of the scene, clearly
demonstrate his lack of credibility. On direct examination, Mr. Tenhoopen answered all of the
State’s questions in a calm and straight forward manner, while on cross-examination he was non-
responsive, evasive, and exhibited an aggressive, argumentative demeanor. Nothing about defense
counsel’s questioning warranted Mr. Tenhoopen’s conduct. In Mr. Tenhoopen’s 911 call, he claimed that a driver (Mr. Smith) had tried to run him off the
road. See State’s exhibit 1.
Additionally, on cross-examination, Mr. Tenhoopen admitted that during a previous
hearing, he testified to having twenty-five convictions or contacts with law enforcement for his
aggressive speeding/driving, but then asserted that he checked and actually only had twelve
convictions for speeding prior to this incident. Since this incident, he has had two additional
speeding convictions. Mr. Tenhoopen testified and told law enforcement during his recorded
interview that, but for his girlfriend following him, he would have been “tailgating the shit” out of
Mr. Smith and revving his engine. During that same recorded interview, Mr. Tenhoopen told the
detectives that he might understand the situation better if he had been driving eighty-five miles per
hour, but he would never drive that speed because it would be illegal.
Mr. Tenhoopen’s testimony that he had stopped swerving, wasn’t revving his engine, or
tailgating Mr. Smith was not credible and was contradicted by the more credible testimony of Ms.
Kirbach and Mr. Smith. Ms. Kirbach credibly testified that Mr. Tenhoopen did tailgate Mr. Smith,
he passed Mr. Smith aggressively on the right lane, and then pulled back into the left lane in which
Mr. Smith was travelling and stopped his car so quickly that his tires screeched. This is not only
corroborated by Mr. Smith’s testimony, but also by the female 911 caller in State’s Exhibit 1. She
was a Costco employee who parked her car and was walking toward the Costco building when she
heard loud engines, tires screeching, possible gunshots and people yelling in the road behind
Costco. The photographs admitted during the hearing also demonstrate the credibility of Mr. Smith
and Ms. Kirbach’s testimony. Defense Exhibit 2 is an aerial photograph of the scene depicting Mr.
Tenhoopen’s Lamborghini partially blocking the left turn lane and the left thru lane on Providence
Lakes Boulevard. It was used by the defense during Mr. Tenhoopen’s deposition and admitted
during cross examination at the hearing. At his deposition, Mr. Tenhoopen drew the position of Mr. Smith’s car, Ms. Kirbach’s car, as well as his path of travel from his Lamborghini and where
he was standing when he was shot. According to this exhibit, his deposition testimony, his audio
interview with detectives, and his hearing testimony, he was shot while standing on the median,
or close thereto as depicted by an “x” in the exhibit.
State’s composite Exhibit 9, as well as the credible testimonial evidence refute Mr. Tenhoopen’s testimony. The Court further finds incredible Mr. Tenhoopen’s testimony that during the 911 call, he
was walking around the scene looking for his pendant and that would explain how his blood was
located at evidence marker #2. He acknowledged that he never told the 911 operator he was
walking around looking for the cross, that he only mentioned it for the first time at a previous
hearing on October 2024, and that he had previously told defense counsel that during the 911 call,
he sat down and stayed put as directed by the 911 operator (although Mr. Tenhoopen interpreted
that statement differently). A review of the 911 call demonstrates that he is not walking around,
i.e., he does not sound exerted and does not mention the cross or walking around the scene to the
operator. Additionally, Deputy Durig arrived at the scene very quickly and while Mr. Tenhoopen
was still on the phone with 911, and he observed Mr. Tenhoopen by his Lamborghini before Mr.
Tenhoopen walked over to him.
The Court notes that no instruments were used to measure distances and no precise
measurements were taken at the scene of the shooting at the time the scene was being processed.
All of the testimony was based on estimated measurements or distances, which were somewhat
divergent. However, the Court finds the estimated distances corroborate the more credible
testimony of Mr. Smith and Ms. Kirbach, and place Mr. Tenhoopen about thirty to forty-five feet
from the back of his Lamborghini, and within ten to twenty feet of Mr. Smith’s vehicle,
contradicting Mr. Tenhoopen’s testimony.
The Court finds that Mr. Tenhoopen was the initial, completely unprovoked aggressor. Mr.
Smith was driving down the road, minding his own business, on his way to Starbucks. He had
every right to be on the road. Mr. Smith observed Mr. Tenhoopen swerving from side to side, and
Mr. Tenhoopen undoubtedly tailgated Mr. Smith and, revving his engine loudly, passed him
aggressively before inexplicably moving back into Mr. Smith’s path of travel, screeching to a stop
and partially blocking two lanes. Although the State argues Mr. Smith’s use of force was
unreasonable as he had already armed himself with a loaded firearm when Mr. Tenhoopen exited
his car, Mr. Smith had every reason to be concerned that Mr. Tenhoopen was going to attack and/or
harm him. Any reasonably prudent person would think the same based on Mr. Tenhoopen’s driving
behavior up until that point. Mr. Smith reasonably reached for his firearm, which he had a permit
to carry and never had previously pointed at another human being.
As the Defense argues, Mr. Smith first attempted to use non-deadly force as he pointed his
firearm at Mr. Tenhoopen once he exited his car and told him to stop his approach. See e.g., Burns
v. State, 361 So. 3d 372, 375 (Fla. 4th DCA 2023) (“The display of a firearm constitutes non-
deadly force as a matter of law.”); Stewart v. State, 672 So. 2d 865, 868 (Fla. 2d DCA 1996) (“It
is the nature of the force that must be evaluated and the mere display of a gun without more does
not constitute deadly force.”); Jackson v. State, 179 So. 3d 443, 446 (Fla. 5th DCA 2015) (“[T]he
mere display of a gun, or even pointing a gun at another’s head or heart without firing it, is not
deadly force as a matter of law.”). Nevertheless, Mr. Tenhoopen continued to briskly approach.
Mr. Smith testified that this entire incident, from the moment that Mr. Tenhoopen got out
of his car and began approaching him until he was shot twice, took no more than four to five
seconds. This event did not happen in slow motion. It happened in real time. While the Court can
appreciate the State’s urging the Court to only focus on the facts outlined in the State’s Response to Defendant’s Motion to Dismiss and Memorandum in Support of Denial, such a focus would
result in a miscarriage of justice as it would not encompass the entirety of facts that led to Mr.
Smith’s objectively reasonable fear that he was in imminent danger of death or great bodily harm
or that Mr. Tenhoopen was about to commit a forcible felony against him.
Mr. Smith stopped his car and rightfully kept his eyes focused on Mr. Tenhoopen’s car,
and the Court further finds it credible that Mr. Smith completely believed he was trapped behind
Mr. Tenhoopen’s car. Frankly, even if he had awareness of the third lane to his right, which this
Court firmly believes he didn’t, a reasonable person would have been concerned that the driver of
that Lamborghini was armed and would have harmed them as they drove by. The Court also finds
that Ms. Kirbach was passing in that very right lane while Mr. Tenhoopen was walking briskly
and aggressively towards Mr. Smith and the shots were fired.
Additionally, as noted above, Mr. Smith had every right to be on that public road, was not engaged in criminal activity, and did nothing to provoke or invite Mr. Tenhoopen’s actions, therefore, and in light of Mr. Smith’s objectively reasonable fear that he was in imminent danger of death or great bodily harm, this Court believes Mr. Smith had no duty to retreat, even if he had been aware of the third lane to his right. See §§ 776.012(1)-(2), Fla. Stat. (2022).
Again, after Mr. Smith observed Mr. Tenhoopen swerving/fishtailing, rapidly approaching,
and riding his bumper, Mr. Tenhoopen passed Mr. Smith and came to a screeching stop in Mr.
Smith’s lane, got out of his car, and charged or walked briskly toward Mr. Smith. Despite seeing
that Mr. Smith was armed, he kept walking towards him. Despite seeing the flash of a muzzle, he
kept walking towards Mr. Smith. It wasn’t until the second shot, which this Court believes is the
shot that struck Mr. Tenhoopen, that Mr. Tenhoopen finally stopped and retreated. In light of Mr.
Tenhoopen’s actions leading up to and immediately preceding the shooting, any reasonably prudent person in Mr. Smith’s position would have believed that Mr. Tenhoopen’s actions posed
an imminent threat of death or great bodily harm, which resulted in shots being fired in self-
defense.
This is further supported by Mr. Smith’s uncontroverted testimony that he suffers from
serious, debilitating medical illnesses which place him in a fragile and weakened state. See e.g.,
Quevedo, 357 So. 3d at 1251-53 (considering defendant’s medical condition in evaluating
reasonableness of defendant’s use of deadly force).
Having observed both Mr. Tenhoopen and Mr. Smith during the hearing, this Court finds
that there is a stark difference in their appearance. If one didn’t know their dates of birth, one
would never think they were approximately the same age. Mr. Tenhoopen appears at least ten years
younger than Mr. Smith and is fifty pounds heavier. Mr. Smith has a pallor to his skin and appears
frail. It is no wonder that, according to Mr. Tenhoopen, Ms. Kirbach described Mr. Smith as
looking like a “white, older guy."8 For these reasons, this Court also finds credible Mr. Smith’s
description and belief on the date of this incident that the person he shot at was younger and much
bigger. Mr. Tenhoopen does appear younger and bigger than Mr. Smith under the bright lights
and safe confines of a courtroom, so one can only imagine how much more significant this
difference was on the dark, isolated roadway on the date of this incident.
The Court finds that Mr. Tenhoopen’s aggressive and unprovoked actions caused Mr.
Smith to reasonably believe Mr. Tenhoopen intended and was about to cause death or great bodily
harm to him or commit a forcible felony against him. The State failed to present evidence to
convince this Court without hesitancy that Mr. Smith is not entitled to immunity. Based on the
circumstances as they appeared to Mr. Smith at the time, he was reasonable in his belief that the
use of deadly force was necessary to prevent imminent death or great bodily harm or the imminent
commission of a forcible felony against him and, thus, is immune from prosecution under the law.
CONCLUSION
Based upon the foregoing analysis, the Court finds that Mr. Smith established a prima facie
claim of self-defense pursuant to the Stand Your Ground Statute, and the State failed to prove by
clear and convincing evidence that he was not entitled to such relief. The Court weighs and
resolves conflicts in the testimony and evidence in favor of the Defense’s theory of the case.
Accordingly, Mr. Smith is entitled to immunity from criminal prosecution and civil action pursuant
to section 776.032(1).
It is therefore ORDERED AND ADJUDGED that “Defense’s Motion to Dismiss Based
on Statutory Immunity” is hereby GRANTED.
DONE AND ORDERED in Chambers, in Hillsborough County, Florida, this ____ day of
August, 2025.
______________________________
LYANN GOUDIE, Circuit Judge
Copies provided to:
Ricardo Rivera, Esquire
Andrew Rollins, Assistant State Attorney
Electronically Conformed 8/7/2025 Lyann Goudie