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Watch Your Mouth

Watch Your MouthHere are some facts, straight from CNN:

“At the World Trade Center (WTC) site in Lower Manhattan, 2,753 people were killed when hijacked American Airlines Flight 11 and United Airlines Flight 175 were intentionally crashed into the north and south towers or as a result of the crashed. Of those who perished during the initial attacks and the subsequent collapses of the towers, 343 were New York City firefighters, 23 were New York City police officers and 37 were officers at the Port Authority. The victims ranged in age from two to 85 years. Approximately 75-80% of the victims were men.” (, accessed August 13, 2017).

So, now you know some facts. Do the words above give you any sense of the meaning of 9/11? You can memorize the “facts” about 9/11, but completely miss the meaning of 9/11.

Having accurate facts won’t guarantee any sort of understanding. Often, words have more power as they move away from factual descriptions. For example, the words found in your favorite song may remind you more of an event than any factual description. I can’t tell you how many times I’ve heard a song from the 80’s, and the song instantly transports me back, in a way that words on a page just can’t. Often, words in a song can convey more meaning than the words alone.

Songs work, in part, because we believe a phrase more if it rhymes. Kind of silly, right? It is said that “a man armed with a rhyming dictionary is a dangerous man.” (Bruce Springsteen). Rhyme works in criminal defense trials as well. Who can forget this classic: “If it doesn’t fit, you must acquit.” Or, how about this one: “Sticks & stones may break my bones, but words will never hurt me.”

Words may not hurt you–but words can get you arrested, among other things. (I’m going somewhere with this, so please tolerate the cliches for a another three sentences) Here are some dangerous words: telling a TSA agent that you’ve got a bomb, or asking a 16 year old girl to have sex (unless, of course, you’re 16 years old, but even then, its a tad young, don’t ya think?). Our focus today will be the all too common threat to kill.

Now, if you do threaten to kill someone (hire me…), any threat to do harm is called an assault (a battery charge is physical, assaults are just words or actions). A basic threat gets upgraded to “aggravated” when the person is using a gun or weapon to make the threat more believable.

The question is, can you be convicted of assaulting someone who doesn’t understand what a gun is, or even understand the English language? To see how an assault plays out with a victim who does not understand what the heck is going on, we’re going to examine the real life case of Davis v. State, 2017 Fla. App. LEXIS 9415 (Fla. 4th DCA 2017).

Davis was convicted of making threats and pointing a gun at an adult, and a one-and-a-half year old child. Because the verbal threat was enhanced via the use of a firearm, the charge is called aggravated assault with a firearm . He received a prison sentence for each person he threatened, including the one-and-a-half year old. He appealed his conviction, arguing that he should not have been found guilty of assaulting a child who didn’t understand the threat. Was he right?

To answer that, we have to drill down into the bowels of the Florida Statutes. A boring task, for sure, but necessary because I have oversimplified the whole assault concept. Here’s what an assault is, technically, straight out of the Florida Statute book: “An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that violence is imminent.” Section 784.011(1), Fla. Stat.

Our specific question for today is: How can a prosecutor prove that a one-and-a-half year old child had a “well-founded fear that violence is imminent”?

The evidence presented noted that, after Davis’ verbal/gun pointing spree, the adults were “hysterical, screaming, and crying.” Id. The child was crying as well. Who wouldn’t, right? (Actually, if you don’t fear a gun pointed at you, there’s no crime of assault, but you may want to get checked out). The appeals court pondered: “Was the child crying because that is what one-and-a-half year old children do from time to time? Or was the child crying because the child’s innate sense of fear was alerted by the defendant’s violent actions and the adult victims’ reactions of hysteria, screaming, and crying? . . . While I recognize that a one-and-a-half year old child’s cognitive and communicative abilities are limited, we do not know at what point in a child’s development that a child experiences fear.” Id.

The appeals court threw out Davis’ conviction for aggravated assault with a firearm, citing the fact that there was no evidence presented regarding the child’s perceptions or feelings. They cited Prey v. State‘s holding in a similar case, ruling that “there was no evidence of the five month old infant victim’s perceptions or feelings and thus there was inadequate proof of an assault.” 571 So. 2d 554, 555 (Fla. 4th DCA 1990).

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