Throwing Deadly Missile

The charge of throwing a deadly missile is a serious offense, punishable by up to 15 years in prison.  Yet, often times this charge is simply a trumped up misdemeanor criminal mischief case.  And, as I've said before, throwing a deadly missile can be a tough case to prove.  To understand the truly lame nature of this charge, let's examine the wording of Florida Statutes 790.19, which states that:

Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in ... any ... vehicle of any kind which is being used or occupied by any person, ... shall be guilty of a felony of the second degree,....


The number one problem of proof in such cases is the phrase "would produce death or great bodily harm".  It's a problem for two reasons.  First, the state often confuses the term "would" with the term "could".  Just because something thrown "could" produce death or great bodily harm does not mean that it "would" do so.  The statute requires proof beyond a reasonable doubt that the object "would" produce death or great bodily harm.  Second, proving an object to be "deadly" or "causing great bodily harm" is a judgment call that rarely fits the facts alleged by law enforcement.  Let's review a few examples.

In the case of J.W.B. v. State, 419 So.2d 407 (Fla. 2d DCA 1982),  the Second District Court of Appeals overturned a case where a juvenile was found guilty of throwing a deadly missile at a bus.  The "deadly missile" in this case was an orange.  The orange never struck the bus or another person, and the court overturned the lower court because they found that "it cannot be said that the orange was a missile which would produce death or great bodily harm..." 

However, the court in J.W.B. was careful to note that it is possible, under certain  facts, for an orange to be a deadly missile, reasoning that "in some circumstances an orange can be a missile.  The state's argument is correct in that respect.  We do not accept the argument of the appellant that because an orange is a soft fruit it can never be a missile under the purview of the statute.  But the proscription of the statute does not end with an inquiry into the nature of the object thrown.  Such an object must also be one which 'would produce death or great bodily harm.'".  Id.  So, as you can see, the analysis involves both the object itself, and an analysis as to whether or not said object would produce death or great bodily harm.  This is highest burden for the state, and one that cannot often be overcome.

So while we're on the topic of deadly fruit, compare the J.W.B. court's decision with Wilton v. State, 455 So.2d 1142 (Fla. 2d DCA 1984), where the court held that the throwing of a grapefruit at a passing tanker truck--thereby shattering its windshield and the shrapnel cutting the driver--did constitute the crime of throwing a deadly missile into an occupied vehicle.

Whenever something is thrown (and damage is caused) it seems prosecutors are all too willing to just assume the crime of throwing a deadly missile was committed.  As you can see from the above, the statute requires an object that "would" cause death or serious harm.  But nine times out of ten, the state mistakenly charges this crime under the "could" cause death analysis.  Don't fall prey to such foolishness, give our defense firm a call anytime for a free consultation regarding this issue (and any other criminal issues, for that matter)....thanks!
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