B.W.B. v. State

374 So.3d 40

B.W.B., a child, Appellant,

v.STATE of Florida, Appellee.

No. 4D2022-1121

District Court of Appeal of Florida, Fourth District.

[November 15, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Carolyn Bell, Judge; L.T. Case No. 502021CJ001239.

Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

May, J.

A juvenile appeals the trial court’s finding of guilt and disposition for written threats to kill or do bodily harm in violation of section 836.10, Florida Statutes (2021). He argues the trial court erred in finding him guilty of the crime charged and in finding the statute constitutional. We disagree and affirm.

I. The Facts

The juvenile posted an image on Snapchat and sent it to a friend. The image showed a person—later identified as the juvenile—in a black cap, wearing large black headphones, a red and black skull mask, black sunglasses, a black hoodie, and a pair of fingerless gloves. In his right hand, he is holding what appears to be a gun. The background is an American flag pinned to a blank wall. The text at the bottom of the photo reads, "Don’t go to school tomorrow."

The police subsequently received a tip about a "threat" made by the juvenile "to shoot up [a] school." The police met with the juvenile at his school. The juvenile waived Miranda and spoke with the police. He admitted to sending the image but denied adding the text.¹ The juvenile also told the police, "[the weapon] was an airsoft toy gun."

The police then asked the juvenile about a notebook he earned around. The juvenile admitted to carrying around a notebook containing (1) his thoughts on racial minorities and Jews, (2) a kill list, and (3) notes on the Columbine school shooting.

The police searched the juvenile’s school computer and found evidence he conducted many Google searches "related to school shootings and hate groups," including:

• Columbine,²

• Guns,

• Nazi,

• Nikolas Cruz,³

• Terrorism,

• Extremist.

The police arrested the juvenile. At the police station, the juvenile admitted he was the person in the photo but denied adding the caption.

II. The Trial

At trial, the juvenile’s friend testified the juvenile sent him the image. The friend took the image as a joke; that is why he responded to it with a "crying emoji and a skull emoji."

Regarding the notebook, the friend testified he’d seen the juvenile carrying around a "black spiral notebook in school." He also testified the juvenile showed him a "white supremacist speech" in the notebook. The friend testified if he had known the juvenile’s notebook contained "references to Columbine and [ ] basically a manifesto on how to carry out a school shooting" when he received the image, he would have taken it seriously.

After the State rested, the juvenile moved for a judgment of dismissal, arguing the State had not met its burden of proof under Puy v. State, 294 So. 3d 930, 933 (Fla. 4th DCA 2020), because reasonable people would not take the juvenile’s image as a "threat." Defense counsel argued:

The standard given by Puy v. State, … the threat itself is measured on whether or not a reasonable person would see the threat itself as true, excuse me, whether the threat itself was sufficient to cause alarm in reasonable persons.

Defense counsel also argued section 836.10 was overbroad and criminalized free speech.

The State responded by arguing "threats" are unprotected speech, and the juvenile sent a "threat" when he sent the image. The State argued, the contents of the juvenile’s notebook showed he intended the image to be a "threat."

The trial court reserved ruling on the juvenile’s motion for a judgment of dismissal.

In closing, defense counsel argued several points: (1) it was obvious the gun was not real, (2) there was no threatening mes- sage, and (3) the State could not prove the juvenile transmitted the Snapchat. Defense counsel also argued the statute was unconstitutional on its face.

The State responded it did not have to prove the image was a credible threat, but rather that a reasonable person would believe it to be a threat. The juvenile admitted the notebook was his, and the State established the image was sent from the juvenile’s cellphone, Thus, the State had proven, at trial, a reasonable person would be alarmed by the image. Finally, the State argued the statute was constitutional.

The trial court found the image constituted a "threat." Citing to Puy, the trial court found that whether "a written communication constitutes a threat under section 836.10 depends on whether the message was ‘sufficient to cause alarm in reasonable persons.’ "

Regarding the image the juvenile sent, the trial court found "[the juvenile’s] face was covered, his identity couldn’t be seen from the photograph. He was wearing a skull mask, … sunglasses, headphones, and he had what appeared to be a gun." On the image "was a caption that said, don’t come to school tomorrow."

The trial court found the image was an "expression of intention to inflict evil, injury or damage." "And [it found the image was] sufficient to cause alarm in reasonable persons." The trial court found whether the gun was "real" or not was irrelevant because "the overall image combined with the caption … was sufficient to cause alarm in reasonable persons."

The trial court further observed:

I note that [the friend] testified that based upon his knowledge of [the juvenile], that he took the picture and the caption as a joke. However, even if the standard were whether the recipient of the picture subjectively believed this posting to be any kind of a threat, he was asked when combined with the notebook about the school shootings, whether he would still consider this to be a joke, his testimony was unequivocally no.

So, even if the test is a subjective one, as to the recipient, I find that in this case there is more than sufficient evidence beyond a reasonable doubt of this element, as well.

The trial court then found section 836.10 constitutional in line with other cases. The trial court found the juvenile guilty, withheld adjudication, and placed the juvenile on probation with general and special conditions.

From the trial court’s findings and disposition, the juvenile now appeals.

III. The Analysis

A. The State’s Burden of Proof

First, the juvenile argues the trial court committed fundamental error in using the wrong "threat" burden of proof. He argues our recent decision in T.R.W. v. State, 363 So. 3d 1081 (Fla. 4th DCA 2023), which issued after the trial, required the trial court to find the juvenile intended to make a "true threat." He suggests the trial court’s application of a "reasonable persons" standard was error because it lessened the mens rea requirement.

[1] The State responds the trial court correctly followed our binding precedent interpreting section 836.10 in Puy. But even if the trial court did err, the legal error was waived when the juvenile invited the trial court to use the Puy "threat" definition.

On the merits, the State argues the juvenile sent a "threat" to do harm or conduct a mass shooting when he sent the Snapchat. The State also argues T.R.W. was wrongly decided because it conflicts with United States Supreme Court precedent and asks us to en banc this case to reverse T.R.W.

[2] We review a trial court’s findings of fact in a bench trial for competent, substantial evidence, and a trial court’s legal conclusions de novo. See Cuomo Trading, Inc. v. World Cont. S.R.L., 314 So. 3d 309, 310 (Fla. 3d DCA 2020) (citing Haas Automation, Inc. v. Fox, 243 So. 3d 1017, 1023 (Fla. 3d DCA 2018)). Because we are asked to review a legal issue, we have de novo review.

The State charged the juvenile under section 836.10—which deals with "threats" to conduct a mass shooting or an act of terrorism. The statute currently provides:

It is unlawful for any person to send, post, or transmit, or procure the sending, posting, or transmission of, a writing or other record, including an electronic record, in any manner in which it may be viewed by another person, when in such writing or record the person makes a threat to:

….

(b) Conduct a mass shooting or an act of terrorism.

§ 836.10(2), (2)(b), Fla. Stat. (emphasis added).

Here, the juvenile sent a Snapchat to a friend. The juvenile testified it was a joke, but the investigation revealed the juvenile (1) had conducted numerous searches "related to school shootings and hate groups[ ]"; and (2) had a notebook containing a white supremacist speech, Columbine references, and "a manifesto on how to carry out a school shooting."

Relying on Puy, as requested by the juvenile, the trial court found the defendant guilty. The trial court also found section 836.10 did not require "the actual intent to do harm or the ability to carry out the threat." See Saidi v. State, 845 So. 2d 1022, 1027 (Fla. 5th DCA 2003). In doing so, the trial court commented the evidence supported a finding the defendant intended the Snapchat as a threat, and the recipient would have understood it to be a threat based on the information revealed at trial.

[3] While the "threat" burden of proof has evolved as times and laws have changed, the evidence here supported the trial court’s finding of guilt. The trial court, after weighing the notebook and the juvenile’s computer searches against the juvenile’s claim it was a joke, found the juvenile intended to send a "threat." The record evidence supports the trial court’s finding.

At the time the trial court decided this case, defense counsel requested the court to rely on Puy. There, we held the question of "whether the posting was a threat under the statute" was a factual question that needed to be resolved by the trier of fact. 294 So. 3d at 934. In reaching that decision, we looked to a recent decision of the Fifth District...