Criminal Defense
Since 1993
Since 1993
Can a Toddler Feel “Well-Founded Fear”? The Case of the 18-Month-Old Victim
By: John Guidry
Facts are a funny thing. You can look up the “fast facts” of a tragedy like 9/11 on CNN and memorize every number—2,753 people killed, 343 firefighters lost, victims ranging from age two to 85. But do those numbers give you any sense of the meaning of that day? Probably not. Facts alone don’t guarantee understanding.
Often, words have more power when they move away from factual descriptions. Think of an 80s song that transports you back to high school the second the first chord hits. Words in a song convey meaning in a way a spreadsheet can’t. Songs work because we believe a phrase more if it rhymes. As Bruce Springsteen said, “A man armed with a rhyming dictionary is a dangerous man.”
Rhyme works in the courtroom too. “If it doesn’t fit, you must acquit.” Or, “Sticks and stones may break my bones, but words will never hurt me.” Well, actually, words can hurt you—they can get you arrested. Tell a TSA agent you have a bomb or make a threat to kill someone, and you’re looking at an assault charge.
What is the Difference Between Assault and Battery?
In Florida, a battery is physical (touching or striking). An assault is just words or actions that make someone think they are about to be hit. It gets upgraded to “Aggravated Assault” when a gun or weapon is involved to make that threat more believable.
Facing Aggravated Assault charges in Orlando? The State has to prove more than just a bad attitude—they have to prove “well-founded fear.” Call John Guidry at (407) 423-1117.
The Legal Breakdown: Davis v. State and the Toddler Victim
A fascinating legal question arises when the victim is someone who might not even understand the English language. Can you be convicted of assaulting someone who doesn’t understand what a gun is? We saw this play out in the case of Davis v. State, 2017 Fla. App. LEXIS 9415 (Fla. 4th DCA 2017).
- The Scene: Davis was accused of pointing a gun and making threats at an adult and a one-and-a-half-year-old child.
- The Charge: He was convicted of aggravated assault with a firearm for both victims, including the toddler.
- The Argument: Davis appealed, arguing that an 18-month-old child is incapable of having the “well-founded fear” required by law.
The “Well-Founded Fear” Test
Under Florida Statute § 784.011(1), an assault requires three things:
- An intentional, unlawful threat (word or act) to do violence.
- The apparent ability to carry it out.
- An act that creates a “well-founded fear” in the victim that violence is imminent.
In the Davis case, the prosecutor pointed out that the adults were “hysterical” and the child was crying. But the appellate court asked the tough question: was the child crying because they were afraid of the gun, or just because that’s what toddlers do when adults start screaming?
The court ruled that since there was no evidence presented about the child’s actual perceptions or feelings, the State failed to prove the assault. They cited Prey v. State, 571 So. 2d 554, which threw out an assault conviction involving a five-month-old for the same reason.
John’s Takeaways
- Fear is an Element: If the victim isn’t actually afraid (or can’t prove they were), there is no assault. It’s a “failure of proof.”
- The Objectivity Trap: While we use a “reasonable person” standard, we still have to prove the specific victim in the case felt the threat.
- Assault vs. Battery: Remember, you don’t have to touch anyone to be charged with a felony. Simply pointing a gun is enough if the “fear” element is met.
- Age Matters: As of 2025, Florida courts continue to hold that very young children or infants may be legally incapable of experiencing the specific type of “imminent fear” required for an assault conviction.
- Local Defense: Whether you’re in Orange, Seminole, or Osceola County, these technicalities are often the difference between a prison sentence and a dismissal.
The justice system is harsh, and it’s “sad but true” that prosecutors will stack charges for every person in a room, even if those people didn’t understand what was happening. I’ve been defending the citizens of Central Florida since 1993, and I know how to spot when the State is “blabbing” without the evidence to back it up.
If you’ve been charged with assault, don’t let the “typical script” of a police report define your future. Let’s look at the facts and find the meaning behind them.
Facing these charges? Call John at (407) 423-1117.
About John Guidry II
John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.
Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.
Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.
When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.