DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
T.R.W., a child,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D21-2396, 4D21-2398 and 4D21-2399
[February 15, 2023]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Cymonie S. Rowe, Judge; L.T. Case Nos. 50-
2020-CJ-000342-XXXX-MB, 50-2020-CJ-000447-XXXX-MB, and 50-
2021-CJ-00248-XXXX-MB.
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
2
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.
3
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.
1 T.R.W. made this argument based on testimony by C.R. that he and his friends
would joke about shooting up the school and based on the text message that “its
just a prank.”
4
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.
2 As demonstrated by the facts set forth in the opinion, the trial court had
abundant evidence on which to base its finding that T.R.W. sent the messages.
5
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 threat
sent over Snapchat.
Id. at 335 (finding “the State made a prima facie
showing that the [communication] was a threat because it was ‘sufficient
to cause alarm in reasonable persons’”) (quoting Smith,
532 So. 2d at 53).
Section 836.10(1), Florida Statutes (2020), provided:
Any person who writes or composes and also sends or
procures the sending of any letter, inscribed communication,
or electronic communication, whether such letter or
communication be signed or anonymous, to any person,
containing a threat to kill or to do bodily injury to the person
to whom such letter or communication is sent, or a threat to
kill or do bodily injury to any member of the family of the
person to whom such letter or communication is sent, or any
person who makes, posts, or transmits a threat in a writing or
other record, including an electronic record, to conduct a
mass shooting or an act of terrorism, in any manner that
would allow another person to view the threat, commits a
felony of the second degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
§ 836.10(1), Fla. Stat. (2020). 3 As we noted in Puy v. State,
294 So. 3d
930, 933 (Fla. 4th DCA 2020), section 836.10 does not define “threat.”
In Puy, we considered whether section 836.10 was vague and
ambiguous as to what constituted a threat. The appellant was charged
under the statute after he posted a picture of himself on social media with
3 Section 836.10 was amended in 2021, making primarily format changes to
the statute. Section 836.10(2) currently reads:
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:
(a) Kill or to do bodily harm to another person; or
(b) Conduct a mass shooting or an act of terrorism.
6
the caption “On my way! School shooter.” Puy, 294 So. 3d at 931. The
appellant moved to dismiss, arguing this message was too vague to
constitute a threat. Id. In affirming the denial of the motion to dismiss
the charge, we applied the “plain meaning” of the word “threat” under the
statute by quoting the dictionary definition: “an expression of intention to
inflict evil, injury, or damage.” Id. at 933 (quoting Threat, Merriam-
Webster, https://www.merriam-webster.com/dictionary/threat (last
visited Jan. 25, 2023)). We then relied on Smith to hold 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.’” Puy, 294 So. 3d at 933 (quoting Smith,
532 So. 2d at 53). Puy
did not discuss mens rea as a necessary element of violating section
836.10, other than to conclude the word “threat” required an objective
assessment of the communication’s effect on a reasonable person.
The mens rea element of section 836.10 was addressed in part by N.D.
v. State,
315 So. 3d 102 (Fla. 3d DCA 2020). There, the appellant argued
that section 836.10 lacked any subjective intent element and as a result
the statute failed to distinguish between acts of merely venting anger and
actual threats to intimidate and do violence.
Id. at 104–05. The N.D. court
noted that section 836.10 did not specifically include a mens rea element
but determined the statute must be construed to include mens rea.
Id. at
105 (citing State v. Giorgetti,
868 So. 2d 512, 515–16 (Fla. 2004)). After
recognizing that mens rea must be included as an element of section
836.10, the court then applied the reasonableness test of Smith and
Cowart to conclude that the juvenile’s threatening language was sufficient
to warrant the trial court placing him in a probation program. Id. at 106;
see also Chicone v. State,
684 So. 2d 736, 743 (Fla. 1996) (“The United
States Supreme Court has stated that offenses that require no mens rea
generally are disfavored, and has suggested that some indication of
legislative intent, express or implied, is required to dispense with mens rea
as an element of a crime.”) (citing Staples v. United States,
511 U.S. 600,
605–06 (1994)), superseded by statute, § 893.101, Fla. Stat. (2011), as
recognized in State v. Adkins,
96 So. 3d 412 (Fla. 2012).
In considering mens rea in a similar statute, section 836.12, Florida
Statutes (2021), the Third District concluded that the intent component
must be read into the statute. Romero v. State,
314 So. 3d 699, 706 (Fla.
3d DCA 2021). Section 836.12(2) provides criminal sanctions for “[a]ny
person who threatens a law enforcement officer, a state attorney, an
assistant state attorney, a firefighter, a judge, or an elected official, or a
family member of such persons, with death or serious bodily harm[.]”
Addressing the petitioner’s contention that the statute was overbroad
7
under the First Amendment, the court concluded that the statute was valid
and did not reach protected speech. Romero, 314 So. 3d at 707. The court
adopted a narrower construction of “threat,” writing that “the term
threaten must be narrowly construed as encompassing only true threats,
defined as ‘those statements where the speaker means to communicate a
serious expression of an intent to commit an act of unlawful violence to a
particular individual.’” Id.
By limiting the statute to “true threats,” the court determined that the
statute required that the defendant mean (intend) to communicate a
serious expression of an intent to do violence. In other words, the trier of
fact would be required to find that the defendant intended the threat to be
taken seriously.
In considering the element of mens rea, Romero looked to the Supreme
Court’s decision in Elonis v. United States,
575 U.S. 723 (2015). Romero
acknowledged that Elonis found that the requisite scienter “is satisfied if
the defendant transmits a communication for the purpose of issuing a
threat, or with knowledge that the communication will be viewed as a
threat.” Romero, 314 So. 3d at 704–05 (quoting Elonis, 575 U.S. at 723).
T.R.W. contends that Elonis requires the reconsideration of Smith,
Cowart, and Puy. The federal statute at issue in Elonis criminalized the
transmission of any communication containing a threat to injure another.
575 U.S. at 726. At trial, the defendant requested a jury instruction that
“the government must prove that he intended to communicate a true
threat.” Id. at 731. The request was denied and the government in closing
emphasized that it was irrelevant whether the defendant intended the
postings to be threats. Id. at 732.
The defendant renewed his challenge to the jury instructions in the
Court of Appeals, which held that the law only required the “intent to
communicate words that the defendant understands, and that a
reasonable person would view as a threat.” Id.
Upon review, the Supreme Court noted that the statute did not indicate
whether the defendant must intend that his communication contain a
threat. Id. The Court then explained:
The fact that the statute does not specify any required mental
state, however, does not mean that none exists. . . . Although
there are exceptions, the “general rule” is that a guilty mind is
“a necessary element in the indictment and proof of every
8
crime.” United States v. Balint,
258 U.S. 250, 251,
42 S. Ct.
301,
66 L. Ed. 604 (1922). We therefore generally
“interpret [ ] criminal statutes to include broadly applicable
scienter requirements, even where the statute by its terms
does not contain them.” United States v. X–Citement Video,
Inc.,
513 U.S. 64, 70,
115 S.Ct. 464,
130 L. Ed. 2d 372 (1994).
Id. at 734; See Rehaif v. United States,
139 S. Ct. 2191, 2195,
204 L. Ed.
2d 594 (2019) (same).
Elonis further explained that a communication should not be
determined to be a threat based on whether a reasonable person would
view the communication as a threat, stating:
The parties agree that a defendant under Section 875(c) must
know that he is transmitting a communication. But
communicating something is not what makes the conduct
“wrongful.” Here “the crucial element separating legal
innocence from wrongful conduct” is the threatening nature of
the communication. [X-Citement Video, 513 U.S.] at 73,
115
S. Ct. 464. The mental state requirement must therefore apply
to the fact that the communication contains a threat.
[The defendant’s] conviction, however, was premised solely on
how his posts would be understood by a reasonable person.
Such a “reasonable person” standard is a familiar feature of
civil liability in tort law, but is inconsistent with “the
conventional requirement for criminal conduct—awareness of
some wrongdoing.” . . . Having liability turn on whether a
“reasonable person” regards the communication as a threat—
regardless of what the defendant thinks—“reduces culpability
on the all-important element of the crime to negligence,” [United
States v. Jeffries,
692 F.3d 473, 484 (6th Cir. 2012)] (Sutton,
J., dubitante), and we “have long been reluctant to infer that
a negligence standard was intended in criminal statutes,” . . .
Under these principles, “what [the defendant] thinks” does
matter.
575 U.S. at 737–38 (emphasis added).
Thus, the Supreme Court concluded that the conviction could not
stand because: “the jury was instructed that the Government need prove
only that a reasonable person would regard [the defendant’s]
9
communications as threats, and that was error.” Id. at 740. It concluded
that “the mental state requirement in section 875(c) is satisfied if the
defendant transmits a communication for the purpose of issuing a threat,
or with knowledge that the communication will be viewed as a threat.” Id.
(emphasis added).
Our supreme court has consistently looked to the United States
Supreme Court for guidance as to the application of mens rea to criminal
statutes. In Giorgetti, the court relied on multiple United States Supreme
Court opinions to hold that it “will ordinarily presume that the Legislature
intends statutes defining a criminal violation to contain a knowledge
requirement absent an express indication of a contrary intent.”
868 So.
2d at 516. By adhering to the United States Supreme Court view of mens
rea, the court concluded:
In numerous decisions, the U.S. Supreme Court has held that
knowledge or mens rea holds a unique place within criminal
law, and it must be clear that a legislative body intended to
dispense with it before courts will assume it is not required.
As noted above, this requirement is little more than a
reflection that society ordinarily reserves criminal sanctions
for acts of intentional misconduct.
Id. at 520.
Following the reasoning of Elonis, a mens rea element must be read into
section 836.10. A defendant must have intended to make a true threat,
namely that he made a communication with the knowledge that it will be
viewed as a threat. The trial court in this case considered the youth’s
intent irrelevant; therefore, based on Elonis and Romero, the court erred.
We adopt the construction of Romero and Elonis. In doing so, we do not
conflict with Cowart and Puy, because both were decided on motions to
dismiss where determining intent is not a proper subject. See State v.
Major,
30 So. 3d 608, 610 (Fla. 4th DCA 2010) (“Determining the intent of
the defendant should be left to the trier of fact and is therefore not the
proper subject of a motion to dismiss.”).
On the other hand, Smith concluded that the question for the jury
under the statute was “whether threatening language reasonably may be
construed to evince a serious expression of an intent to do harm,” ignoring
the defendant’s claim that the communications were a hoax.
532 So. 2d
10
at 53. Thus, Smith does not comport with the necessity of finding some
level of mens rea in order to sustain the conviction.
We hold 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. As the trial court concluded that the intent of the youth was
irrelevant, the court erred.
Violation for Uncharged Conduct
The State charged T.R.W. with violating his probation by failing to
complete his community service hours at the rate of five hours per month.
The State did not allege that he failed to provide written documentation of
those hours. The trial court did not make a finding that T.R.W. failed to
complete his hours. Instead, the court violated his probation because he
had failed to provide the written documentation.
“It is a due process violation and fundamental error to revoke probation
for violations not alleged in the affidavit of violation of probation.” B.E. v.
State,
115 So. 3d 1038, 1040 (Fla. 4th DCA 2013) (quoting Howard v.
State,
883 So. 2d 879, 880 (Fla. 4th DCA 2004)); B.O. v. State,
25 So. 3d
586, 587 (Fla. 4th DCA 2009).
In B.E., the State filed an affidavit for violation of conditions of
probation that alleged that the juvenile “failed to obey all laws” by
possessing marijuana and also alleged that the juvenile “failed to obey his
parents’ reasonable controls” based on an email provided by the juvenile’s
mother.
115 So. 3d at 1039. At trial, the juvenile’s probation officer
testified as to two uncharged violations, the juvenile’s failure to complete
community service hours and failure to complete an anger management
program.
Id. In revoking B.E.’s probation, the trial court included the
uncharged violations as grounds for the revocation.
Id.
On appeal, we reversed, finding that the court committed fundamental
error and violated the juvenile’s due process by revoking probation for
violations not alleged in the affidavit.
Id. at 1040; see also B.O.,
25 So. 3d
at 587 (stating “[i]t is . . . settled that due process will not permit a juvenile
to be adjudged delinquent on the basis of violations of law not alleged in
the petition of delinquency”).
11
In this case, the State charged T.R.W. with failure to complete his
community service hours, not the failure to report those hours. While one
might infer that T.R.W.’s failure to report the service hours meant that he
had also failed to complete them, that inference would deny T.R.W. due
process. Because the State had not charged T.R.W. with failure to report
his service hours, he was not prepared to mount a full defense to that
charge.
The probation officer testified that the program to which she referred
T.R.W. for community service usually sent certificates of completion
showing the hours completed, but she testified that on occasion she did
have to contact the program to obtain the certificates. Had T.R.W. known
that the court would consider his failure to document his community
service hours as a violation of probation, he could have been prepared to
offer evidence that it was the responsibility of the program to send his
certificates of completion to the probation officer or he could have obtained
the certificates himself to provide to the court.
The trial court determined it could not make a finding that community
service hours were not completed, and based upon the probation officer’s
equivocal testimony, we can understand the court’s reluctance to make
such a finding. But the court then could not find T.R.W. violated his
probation based upon conduct which he was given no notice would be
considered.
As the trial court found that the State had not proved the violation
charged by the State of failure to complete community service hours, this
charge may not be considered again on remand. And we reverse the
court’s order revoking T.R.W.’s probation based upon the uncharged
violation of failure to provide documentation of his community service
hours.
Conclusion
The trial court failed to consider the mens rea element of section
836.10, specifically determining that T.R.W.’s intent was irrelevant. Based
upon Romero and Elonis, section 836.10 must be construed to have an
element of intent. We thus reverse the court’s order finding T.R.W. guilty
on the main charge of violating section 836.10 and revoking his probation
on that basis in the two other cases. We remand for the court to reconsider
its rulings consistent with this opinion.
12
We reverse the orders revoking probation based upon the failure to
document community service hours, as the State had not charged T.R.W.
with a violation of probation on that ground.
We certify conflict with Smith v. State,
532 So. 2d 50 (Fla. 2d DCA 1988)
on the issue of the mens rea required in section 836.10, Florida Statutes.
As this issue has arisen in multiple cases due to the posting of messages
on social networks, clarity in the correct interpretation of the statute is
needed.
Reversed and remanded; conflict certified.
DAMOORGIAN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
13
