DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
B.W.B., a child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2022-1121
[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 carried 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
1 After the police spoke with the juvenile, they obtained a search warrant for his
cellphone and social media accounts. A subsequent forensic investigation of the
cellphone revealed the juvenile sent the image with the “Don’t go to school
tomorrow” caption.
2 On April 20, 1999, Eric Harris and Dylan Klebold murdered twelve students
and one teacher at Columbine High School in Columbine, Colorado.
3 On February 14, 2018, Nikolas Cruz shot and killed seventeen people at Marjory
Stoneman Douglas High School in Parkland, Florida.
2
“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 message, 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
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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.
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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.
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,
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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.
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 regarding what
constitutes a “threat.” 4 Id. at 933. But Puy was confined to determining
whether the trial court, at the motion to dismiss stage, could find a posting
was a threat. We held it could not.
Subsequently, in T.R.W. v. State, 363 So. 3d 1081 (Fla. 4th DCA 2023),
we determined the State’s burden was to prove a “threat” under section
836.10 at the adjudication stage. Id. at 1084–88. We adopted the U.S.
Supreme Court’s standard in Elonis v. United States, 575 U.S. 723, 734
(2015) (quoting Morissette v. United States, 342 U.S. 246, 250 (1952)): the
“‘mere omission from a criminal enactment of any mention of criminal
intent’ should not be read ‘as dispensing with it.’”
We [held] that section 836.10 does contain a mens rea
component. To prove the commission of a violation of section
836.10, the trier of fact must find that the defendant
transmitted a communication for the purpose of issuing a
threat, or with knowledge that the communication will be
viewed as a threat.
4 We relied on the Fifth District’s decision in State v. Cowart, 301 So. 3d 332 (Fla.
5th DCA 2020). There, the Fifth District applied caselaw holding a “threat” exists
when a message sent by a defendant is “sufficient to cause alarm in reasonable
persons.” Id. at 334–35.
6
T.R.W., 363 So. 3d at 1088. Our decision shifted the focus to the
defendant’s state of mind instead of the effect on the recipient. 5
More recently, the United States Supreme Court decided Counterman
v. Colorado, 600 U.S. 66 (2023). There, the Court considered both the
defendant’s mental state and the effect on the recipient in determining
whether the government had proven its case. 6 The Court held the
government must prove “the defendant had some subjective
understanding of the threatening nature of his statements.” Id. at 69.
“[A] mental state of recklessness is sufficient.” Id. “The State need not
prove any more demanding form of subjective intent to threaten another.”
Id. This is the latest statement on the burden of proof concerning threats.
Here, the trial court correctly relied on Puy, as it was the most recent
discussion of what was required to prove a threat, but its holding was
limited to the procedural posture of the case. The trial court also correctly
found the Snapchat was the juvenile’s “expression of intention to inflict
evil, injury or damage,” thereby finding the requisite mens rea. One thing
is certain, regardless of the test employed, the evidence in this case was
sufficient to satisfy the tests of Puy, T.R.W., and Counterman. We therefore
affirm the trial court’s finding of guilt.
B. Section 836.10’s Constitutionality
“The constitutionality of a statute is a pure question of law subject to
de novo review.” N.D. v. State, 315 So. 3d 102, 104 (Fla. 3d DCA 2020)
(citing City of Fort Lauderdale v. Dhar, 185 So. 3d 1232, 1234 (Fla. 2016)).
“All reasonable doubts about the statute’s validity must be resolved in
favor of constitutionality.” Id.
5 In Elonis, the Court held a jury was wrongly instructed; the government need
prove only a reasonable person would regard a defendant’s communications as
“threats.” 575 U.S. at 740. “Federal criminal liability generally does not turn
solely on the results of an act without considering the defendant's mental state.”
Id.
6 The Colorado statute at issue in Counterman used different language than
employed in section 836.10. The Colorado statute made it a crime to
“‘[r]epeatedly . . . make[] any form of communication with another person’ in ‘a
manner that would cause a reasonable person to suffer serious emotional
distress and does cause that person . . . to suffer serious emotional distress.’”
600 U.S. at 70 (alterations in original) (quoting Colo. Rev. Stat. § 18–3–602(1)(c)
(2022)).
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The juvenile argues section 836.10 is unconstitutionally overbroad and
infringes on the juvenile’s First Amendment rights. The State responds
the statute is constitutional and is narrowly tailored to prohibit only
unprotected speech. We agree with the State.
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government
for a redress of grievances.
Amend. I, U.S. Const. (emphasis added). The First Amendment, however,
is not absolute. N.D., 315 So. 3d at 104.
“Because First Amendment freedoms need breathing space to survive,
government may regulate in the area only with narrow specificity.” NAACP
v. Button, 371 U.S. 415, 433 (1963). Accordingly, a criminal statute is
overbroad when it restricts both protected and unprotected speech.
Montgomery v. State, 69 So. 3d 1023, 1028–29 (Fla. 5th DCA 2011). Under
the overbreadth doctrine, the government is prohibited “from banning
unprotected speech if a substantial amount of protected speech is also
prohibited, or chilled, in the process.” Id. at 1029 (quoting Ashcroft v. Free
Speech Coal., 535 U.S. 234, 255 (2002)).
“True threats of violence are outside the bounds of First Amendment
protection and punishable as crimes.” Counterman, 600 U.S. at 69.
Therefore, “a defendant’s First Amendment rights are not violated by laws
prohibiting such threats.” N.D., 315 So. 3d at 104. But “courts must [still]
exercise caution in distinguishing true threats from crude hyperbole.” Id.
(quoting Smith v. State, 532 So. 2d 50, 53 (Fla. 2d DCA 1988)).
We hold section 836.10 is not overbroad. This is because section
836.10 has a limited objective—to punish “threats” of violence sent
through electronic social media. See N.D., 315 So. 3d at 104. Because
section 836.10 deals only with “threats” to commit a violent act, it does
not violate the juvenile’s First Amendment rights.
Affirmed.
WARNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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