T.R.W. v. State

363 So.3d 1081

T.R.W., a child, Appellant, v. STATE of Florida, Appellee.

Nos. 4D21-2396

4D21-2398

4D21-2399

District Court of Appeal of Florida, Fourth District.

[February 15, 2023]

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

Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

Warner, J.

T.R.W. appeals the judgment of delinquency and disposition in three cases. In one, case no. 4D21-2399, the trial court adjudicated T.R.W. delinquent based upon a violation of section 836.10, Florida Statutes (2020), for communicating a written threat to do bodily harm or commit a mass shooting. In the other two, case nos. 4D21-2396 and 4D21-2398, the court determined that by committing the violation of section 836.10, T.R.W. had violated the orders of probation in the underlying delinquency proceedings. The court also found that T.R.W. violated his probation in both cases by failing to provide written confirmation of community service hours that he had been ordered to perform.

While we find competent substantial evidence to support the trial court's finding that T.R.W. sent the messages, we conclude the court erred in determining that T.R.W.’s intent was irrelevant to the violation of the statute, as mens rea is an element of all crimes unless specifically excluded by statute. The court also erred in finding that T.R.W. violated his probation by failing to provide written confirmation of community service hours because the State did not charge him with this violation. We thus reverse and remand for a new adjudicatory hearing on the principal charge and the revocation of probation and reverse on the technical violation as to community service hours.

Facts

T.R.W. was on probation for two separate burglary charges. As part of the conditions of probation, he was ordered to obey all laws, perform twenty-five hours of community service at the rate of five hours per month, and provide written proof of the service hours performed each month.

While T.R.W. was on probation, the State charged him with violating section 836.10. The State also charged T.R.W. with violating both of his probation orders for failing to obey the law in communicating the threats in violation of section 836.10. In addition, the State alleged that appellant had violated the probation orders by failing to perform his required community service hours.

The charges for violation of section 836.10 arose out of texts sent by T.R.W. to C.R., a school classmate. C.R. testified during trial that she had exchanged about twenty Instagram messages with T.R.W., whose username was "T[ ]_gostupid." On January 17, 2021, she received a series of messages from T.R.W. She was 100% sure that the texts were from T.R.W. because they started out similar to conversations that she had in the past with him over Instagram. In one message, he wrote that "at this point I might just start killing people."

The messages continued:

[T.R.W.:] starting wit my homeboys and then the school

C.R.: no

[T.R.W.:] let me stop its just a prank

C.R.: [T.R.W.] i'm scared for u

[T.R.W.:] why

C.R.: bc i can't tell if it's a joke or not

[T.R.W.:] no but fr i dead killed somebody

C.R.: omg

C.R. testified that she was afraid when she read appellant's messages, even though she had never been afraid before of T.R.W. M.S., who was C.R.’s friend, was also present and looking at the messages on C.R.’s phone and viewed the texts as threats of violence.

After C.R. reported the messages to her school counselor, law enforcement became involved. The officers investigated, including interviewing T.R.W. who denied sending the messages. T.R.W. told an officer that he had given his Instagram password to thirty other people, but he was unable to provide the officer with the name of any person that he claimed had his password.

In his own defense, T.R.W. testified that he did not have possession of his phone at the time the messages were sent to C.R., and he did not write the subject messages. On the date in question, he was playing basketball with his brother, who was home from military service. His mother testified and corroborated T.R.W.’s testimony.

As to community service, T.R.W. testified that he had performed community service hours. Although he did not turn in records for two months, he did turn in records for a third month.

T.R.W.’s probation officer testified that she did not have written documentation that T.R.W. had performed five hours of service per month as required by the probation order, which she termed a technical violation. She admitted that he had performed some community service, but not all twenty-five hours as she had not received documentation of all of it. She testified that sometimes the community service program providers failed to send certificates of completion, and if T.R.W. had attended the program to which she had referred him, he would not be in violation. She also admitted to having had a discussion with T.R.W.’s mother about his community service. The probation officer testified that the mother told her that T.R.W. had completed the program and had completed his service hours.

The defense moved for a judgment of acquittal at the close of the State's case and again at the close of all the evidence. The trial court denied both motions.

The trial court entered a single amended order as to all three cases. Based on the testimony at the trial, the court found that the State proved the elements of section 836.10, Florida Statutes, beyond a reasonable doubt and that T.R.W. violated the terms of his probation by committing the offense. The court ruled that section 836.10(1), did not require "the actual intent to do harm or the ability to carry out the threat," citing Saidi v. State , 845 So. 2d 1022, 1027 (Fla. 5th DCA 2003). The court found that T.R.W. sent the communications threatening to shoot individuals and the school, and T.R.W.’s testimony claiming that an unknown person may have sent the messages was "unbelievable." Acknowledging T.R.W. argued that the statements were a hoax or prank, ¹ the court discounted that argument, stating: "Since the Youth's intent is not part of the consideration, coupled with the objective reading of the statements, the Youth committed the crime as charged."

With respect to the violation of probation for community service, the court noted T.R.W. admitted that he had prior knowledge of the rules of his probation. Acknowledging that the probation order required T.R.W. to perform five hours monthly, the court found the evidence conflicting as to whether T.R.W. actually performed the community service. Without making a finding as to whether the community service was completed, the court determined that T.R.W. did not provide written proof of completion of community service. Accordingly, the court concluded that the preponderance of the evidence supported the State's charge that T.R.W. had willfully and substantially violated the terms of his probation by failing to provide written proof of completion of his hours of service.

On the violations of probation, the court adjudicated T.R.W. delinquent of the underlying offenses and imposed probation. As to the main charge of violating section 836.10, the court withheld adjudication and imposed probation. All probation sentences were to run concurrently. T.R.W. appeals all three orders.

Analysis

T.R.W. raises three issues on appeal. First, he claims that the evidence was insufficient to prove that he sent the text messages when he had given his password to access his Instagram account to many other people. We find no merit in this issue and do not address it further. ² Second, he maintains that the court erred in concluding that his intent was immaterial to the determination of whether he had violated the statute. Finally, he claims that the court fundamentally erred when it determined that he violated his probation by failing to provide written documentation of his community service hours. We address these issues and conclude that both require reversal.

Failure to Consider Mens Rea in Finding a Violation of Florida Statute Section 836.10

In finding T.R.W. violated section 836.10, the trial court rejected any consideration of T.R.W.’s intent in sending the texts. The trial court concluded that whether a threat was made must be analyzed based upon whether a reasonable person would perceive the communication as a threat, relying on Smith v. State , 532 So. 2d 50 (Fla. 2d DCA 1988). T.R.W. contends that his intent that the words be taken as a threat is essential, without which the element of mens rea is absent.

Smith considered an earlier version of section 836.10, Florida Statutes (1987), which made it a felony to send a communication threatening to kill or injure the recipient or a member of the recipient's family. 532 So. 2d at 52-53. The defendant had sent letters, which appeared to be on official stationery, to the wives of the local judiciary and attorneys, stating that the stationery on which the letters were written contained a lethal toxin. Id. at 52. Several recipients expressed considerable angst after receiving the letters, but the defendant contended that the entire incident was a hoax. Id.

On the question of whether the evidence was sufficient to convict, the Smith court disregarded the defendant's claim that the letter was a hoax, noting, "[w]ith any offense, however, involving or resembling extortion, and Smith's actions may be so characterized, neither the actual intent to do harm nor the ability to carry out the threats is an essential element." Id.

Smith determined the jury's finding that the threats "were sufficient to cause alarm in reasonable persons[ ]" was supported by the victims’ fearful reactions. 532 So. 2d at 53. In State v. Cowart , 301 So. 3d 332 (Fla. 5th DCA 2020), the Fifth District applied this proposition to a perceived...