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O.P-G. v. State

Florida Court of Appeals, Third District

October 16, 2019

O.P-G., a Juvenile, Appellant,
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An appeal from the Circuit Court for Miami-Dade County, Teresa Mary Pooler, Judge.

          Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Chief Assistant Public Defender, and Allen Kathir, Assistant Public Defender, for appellant.

          Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.

          Before SALTER, MILLER, and GORDO, JJ.

          MILLER, J.

         Appellant, O.P-G., challenges his finding of guilt for disruption of a school function, in violation of section 877.13, Florida Statutes (2019). Appellant contends that the erroneous determination by the lower tribunal that off-campus conduct evidenced a statutory violation, along with the State's failure to assiduously heed its discovery obligations, necessitate reversal. For the reasons set forth below, we discern no error and affirm.


         Two days after a deadly mass shooting claimed the lives of multiple students and staff members at Marjory Stoneman Douglas High School in Parkland, Florida, law enforcement officers were alerted to a threatening comment posted online in response to a YouTube video featuring the aftermath of the incident. The post, rendered under the username "Ninja Roos," reflected "I[']m going to shoot my school in [F]lorida[.] [I']m only 13[.] I got bull[ied] and [I']m getting my revenge with my guns[.] [T]he school is [M]iami [L]akes [M]iddle [S]chool." In response, Sergeant Jose Canaves propounded an "exigent circumstances" request upon Google, and obtained subscriber information, in the form of an internet protocol address ("IP address"), for Ninja Roos. Thereafter, Comcast furnished the address of the subscriber at the time of the posting. A search of a student database revealed that O.P-G., a resident at the address, was enrolled as a student at Miami Lakes Middle School.

         Detective Hector Martinez responded to Miami Lakes Middle School and interacted with various administrators. After he was informed of the threat, the school principal directed that students be funneled through a single entrance, and further ordered a "pat down" of all backpacks. Supervisory staff was added, security monitors were positioned throughout the school, and classes did not commence in a timely manner.

         O.P-G. was removed from class and escorted to the main office of the school. Upon arrival, he volunteered he was aware that law enforcement was at the school "because of some postings [he] placed on the internet." O.P-G. provided a written confession, which was later suppressed by the lower tribunal. He was charged with disruption of a school function and the case proceeded to trial.

         At trial, Detective Martinez testified that O.P-G., when asked by the assistant principal whether he made a posting under the pseudonym "Ninja Roos," responded affirmatively. The defense lodged a Richardson[1] objection, contending the admission had not been properly disclosed in discovery. The defense then withdrew the objection, as the prosecutor represented that the contents of the statement had indeed been furnished prior to trial. Questioning resumed and thereafter, the defense unsuccessfully argued the admission constituted an involuntary confession, in violation of Miranda.[2] The defense then re-raised a Richardson objection, contending the State failed to disclose the assistant principal as a witness.[3] Further inquiry ensued, and the trial court found no discovery violation and resumed the trial. Following the presentation of the evidence, the defense sought involuntary dismissal. The court denied the motion and found O.P-G. delinquent, as charged in the amended petition, withheld adjudication, and imposed a defined term of supervision.

         Subsequent to trial, O.P-G. submitted a public records request to the Miami-Dade Schools Police Department which yielded a five-page supplement to a truncated offense incident report previously disclosed to the defense in discovery. Although the report did not reflect O.P-G.'s statement to the assistant principal, it contained other inculpatory evidence, including additional online threats purportedly penned by O.P-G. On the basis of the incomplete report, O.P-G. again sought involuntary dismissal. The lower court conducted a hearing and denied relief. The instant appeal followed.


         "The standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case." A.P.R. v. State, 894 So.2d 282, 284 (Fla. 5th DCA 2005) (citing J.P. v. State, 855 So.2d 1262, 1264 n.1 (Fla. 4th DCA 2003) ("Though referred to as a judgment of acquittal, under the Rules of Juvenile Procedure, the proper title of the motion should have been a Motion for Judgment of Dismissal. Notwithstanding, this court uses the same standard on review as for a judgment of acquittal.") (citations omitted); E.A.B. v. State, 851 So.2d 308 (Fla. 2d DCA 2003); W.E.P. v. State, 790 So.2d 1166 (Fla. 4th DCA 2001)); see also J.L.F. v. State, 887 So.2d 432 (Fla. 5th DCA 2004); M.N. v. State, 821 So.2d 1205 (Fla. 5th DCA 2002) (applying standard of review for motions for judgment of acquittal in a juvenile case). Accordingly, "[o]ur review . . . is de novo." J.W.J. v. State, 994 So.2d 1223, 1224 (Fla. 1st DCA 2008) (citing E.A.B., 851 So.2d at 310). "A motion for judgment of dismissal should not be granted unless there is no legally sufficient evidence on which to base a guilty verdict." Id. (citing G.D. v. State, 497 So.2d 1318, 1319 (Fla. 3d DCA 1986)). "We view the evidence and all reasonable inferences in a light most favorable to the State." Id. (citing D.E. v. State, 904 So.2d 558, 561 (Fla. 5th DCA 2005)). Finally, "[u]nder Richardson, when a discovery violation is alleged, the standard of appellate review is whether the trial court abused its discretion in determining if a violation occurred and if so, whether it was inadvertent, and not prejudicial to the preparation of the defense." Mascolo v. State, 774 So.2d 827, 829 (Fla. 4th DCA 2000).


         I. Section 877.13, Florida Statutes

         O.P-G. first asserts that the fact that the threat was dispatched into cyberspace from an off-campus location is fatal to the integrity of the court's finding of guilt, contending section 877.13, Florida Statutes, solely proscribes on-campus actions. Alternatively, he argues state regulation of his off-campus speech renders the applicable statutory scheme unconstitutionally vague and overbroad.

         In the seminal student speech case, Tinker v. Des Moines IndependentCommunity School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 ...

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