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Thelawman2
Thelawman2, Lawyer
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Experience:  Attorney-at-Law
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My 21 year old son has been charged in Florida with cyber stalking(texting)

Customer Question

My 21 year old son has been charged in Florida with cyber stalking(texting) and harassing phone calls to his girlfriend( a stripper) who he met when he was only 17 and she was 31. She has several mental health issues as well as my son, who has been labeled throughout school as having an extreme emotional disorder and severe impulsive control issues. We have documentation to support all of this. He has been given a public defender who only insists on him take a plea on these charges. My son, who had no clue that texting and calling his girlfriend was against the law. He never texted any firm threats, no "I am going to kill you" no "I am going to hurt you", etc but he did say that "you better hope the cops catch me first" as the girlfriend called the police because she said she was scared of him. This toxic relationship was of course full of fights and disagreements contuinally. His Public defender is very firm on the course he would like my son to take (Plea) and it involves jail time and a long probation. I do not want me son to have a cyber stalking charge on his record. I hope that you can offer some advice. Right now the girlfriend is in jail for two charges, petty theft and grand theft. She also gave a false name in jail. Does the prosecution have to prove 1) actus reus and 2)mens rea? If my son really did not know that the texting and the phone calls were an actual crime and he had no intent, then can he be found guilty? Could his prior diagnosis of emotional and impulsive control issues be brought up at trial? His attorney told me that we could not use any of his emotional conditions at trial only at sentencing. Isn't his state of mind at the time of the crime beneficial? Also, would you think that he would benefit from actually testifying and explaining his torment and toxic relationship with a much older woman? I only get the feeling that the public defender is just wanting a plea deal on this case. Thank you
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Thelawman2 replied 11 months ago.

Thelawman2 :

The prosecution does not have to prove that your son knew that what he did was a crime, only that he intended to do the act with a criminal intent-mens rea- or bad intent. The emotion issues, as your public defender correctly points out, would not prevent him from being convicted of a crime, but may help in sentencing or in a plea deal

Thelawman2 :

The public defender most likely has a lot of experience in this and similar cases so he probably knows what is in the best interest of your son. If the proof is there, then a plea agreement may be the best option. And the public defender can attempt to reason with the prosecutor in trying to explain the toxic nature of the relationship and that it was not just one-sided

Customer:

So, what you are saying is that the prosecution does have to prove criminal intent?

Customer:

By the way, this public defender has never tried a cyber stalking or stalking charge. There is the proof of the text messages. Also, my question was.. can we actually call witnesses to the stand to verify his disabilities and impulse control issues? I thought that you can call ANY witnesses to the stand to try to prove your case.

Customer:

And... you did not even mention the fact that my son was only 17 when he met her and slept with her. Is that a crime???? Can we bring this up in court if she testifies????

Customer:

I do not have much faith in your answers as you very well know that the public defender is only there for plea bargains and does very little to pursue justice or a trial for the indigents. You were once probably a prosecutor and your answer shows it. Sorry, I do not rate your answer as very informative or of any help as you did not even answer any of my pertinent questions. What about the character of the accuser??? Does that even matter. You did not even answer my question about my son testifying..

Thelawman2 :

Sorry, let me continue in my responses to aid you.

Thelawman2 :

The prosecution does have to prove criminal intent, but that does not mean that they have to prove he knew he was committing a crime. They just have to prove that he was acting with a malicious or bad intent, that he intended to do something that was wrong. For instance, if he was joking, then he wouldn't be acting with mens rea, or criminal intent

Thelawman2 :

If your son was 17 and she was 31, then that would be considered a crime, and it could possibly be used to attack the witnesses credibility when she is put on the stand.

Thelawman2 :

The only problem though is that there is proof outside of her testimony, specifically that the text messages exist.

Thelawman2 :

There is a possibility that she might drop the charges if threatened with litigation over the fact she was having a relationship with a minor

Thelawman2 :

Plea bargains are useful if the evidence is very strong. The fact that there are text messages are harmful; however, if it was only one or two times when your son was angry, then it might not be considered cyberstalking and just one act of being angry.

Thelawman2 :

However, if there are multiple text messages over a long period of time, then it could be an issue.

Thelawman2 :

According to Florida statutes, “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

Thelawman2 :

Notice that it is "a course of conduct" so it is not just one act, but multiple acts over a longer period of time

Customer:

Ok, now we are getting somewhere. So, you say " a course of conduct"? It was only one night and after a big fight. There were only 4 text messages. One actual one was " I am going to call your mom". He did speak to the police and tell them that he only did it to "annoy" her. Would that be considered criminal intent? An annoyance?. Also, again should he testify for his defense so he could explain some of his relationship with her? Also, you have not answered the question regarding the defense calling ANY witnesses that would benefit his case including the school psychologist who has told me that his impulsibility disorder would render him to believe what he did was only an annoyance not a crime. In essence, he really did not think what he did was actually wrong. Can we call her to the stand in his trial?? I appreciate your feedback and I will take in all of your advice. Thank you.

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Category: Criminal Law
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Customer: replied 11 months ago.
Ok, now we are getting somewhere. So, you say " a course of conduct"? It was only one night and after a big fight. There were only 4 text messages. One actual one was " I am going to call your mom". He did speak to the police and tell them that he only did it to "annoy" her. Would that be considered criminal intent? An annoyance?. Also, again should he testify for his defense so he could explain some of his relationship with her? Also, you have not answered the question regarding the defense calling ANY witnesses that would benefit his case including the school psychologist who has told me that his impulsibility disorder would render him to believe what he did was only an annoyance not a crime. In essence, he really did not think what he did was actually wrong. Can we call her to the stand in his trial?? I appreciate your feedback and I will take in all of your advice. Thank you.
Expert:  Thelawman2 replied 11 months ago.
The difference between an annoyance and the cyberstalk is not a big enough difference. He still meant to cause some harm with the text messages, so there was some criminal intent. The best bet is to argue that it was not a course of conduct; you should speak to your public defender to pursue this line of arguing. If you don't believe your public defender is representing your son effectively, then you should seek another attorney.

Additionally, you can call her to the stand during your trial since she is the main witness.

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