5th District Court of Appeal
Case No. 5D23-795
March 2023

Child vs. State

Did Not Participate

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Case Details


In a 2-1 decision, the majority upheld the trial court’s ruling to hold a minor in home detention for written threats. The ruling reads:

"… we deny the petition as the trial court properly found probable cause. … N.H. is free to raise [defenses] and to require the State meet its burden of proof in later proceedings."

The majority agree that the arrest for written threats was made legally. They argue that probable cause for arrest is a low bar, where you only need a serious chance of criminal activity.

They first looked at the law itself. They noted that when the Legislature has not defined a word, the plain and ordinary meaning should be applied. They used multiple dictionaries to determine the meaning of the word “post”: to cause a writing, which threatens to kill/harm, to be seen in public. They argue the way it is made visible in public is not relevant, just that it was visible in public.

With this decided, they considered N.H.’s situation. She did not try to hide the written threat, she left it in plain view, and therefore they consider it to have been posted.

In response to N.H.’s complaint that there was no proven intent to post the threat, the majority agree this is not relevant for probable cause. Intent is something that the jury will determine when weighing the facts of the case. The trial court does not need to find intent at this step of the proceedings.

Dissent: Judge MacIver

"The seriousness of mass violence certainly compels the most determined response—both legislatively and judicially. However, criminal prosecution is not the only tool available, and the overuse of criminal justice solutions … might crowd out there more rational and reasonable approaches."

MacIver does not believe the low bar of probable cause was reached in this case. He notes that all arguments are around whether the written threat was posted. He considers jury instructions which say the threats must be communicated. He concludes that the law doesn’t prohibit threatening writing or thoughts, but the sending, transmitting, or posting of those written threats.

He also looked at the law and the definition of “post”. After consulting more than one dictionary, including a legal dictionary, he determined “post” means “to announce”. It could also include publicizing.

He argues that threatening thoughts/fantasies, even when written, should inspire intervention. But they are not criminal. He believes that N.H. being “caught at her desk with the writing” isn’t the same as taking steps to communicate, announce, or publicize the threats.

Read the full ruling


A teacher saw a readily visible piece of paper on a student’s desk. Amongst other writings, the paper included an apparent threat to kill that teacher and another teacher. (The word “Kill” followed by the two teacher’s names.) The teacher reported this to the principal, who reported to the school resource officer.

When the school reached out to N.H.’s mother, she gave the resource officer a journal she had recently discovered. In it was a “written plan to kill others, including N.H.’s family and the Teacher.” N.H. included a list of weapons and times. N.H. was arrested.

N.H. argued that the arrest was done illegally because she did not send, post, or transmit the threat, which is required under the law. The State argued that leaving the note in plain site, “publicly displayed”, for the teacher to see was equal to posting it.

The trial court agreed with the State. Instead of incarcerating N.H., the judge sent her home with her mother on “intensive home detention.”

N.H. appealed the decision, adding that there was no evidence of intent to send, post, or transmit the note.

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