WHEN GUNPLAY BACKFIRESHE USED A TOY PISTOL IN A "JOKE" ROBBERY, BUT THE AUTHORITIES WEREN'T LAUGHING

William Helme, the deputy public defender assigned to the case, argued that Gabriel never threatened to shoot, used no physical violence and never intended to commit a robbery.

"There was no purse. There was no wallet. There was no attempt on his part to take any property. . . . There was a statement made, but that does not amount to an attempted armed robbery. . . . And that the individual believed that it could have been a joke, I believe, indicates that the state has not met its burden to that count," Helme told the court.

The key to the conviction, however, was what Gabriel did before he pulled the trigger and the cruel manner in which he went about it, Commissioner Popilek tells New Times. "My impression was he scared the hell out of her," Popilek says. "I don't think it was a real big joke." Popilek found Gabriel guilty of two felonies: attempted armed robbery and threatening and intimidating.

After his conviction, Gabriel was released to his parents. But at a subsequent hearing, a probation officer told Popilek that Gabriel had allegedly made death threats to other students. "We're sitting here waiting for a sentencing, and he's out threatening other people," Popilek says. Based on the report of the probation officer, the commissioner says he decided to send Gabriel to Durango.

The victim says she's sorry Gabriel got into so much trouble. But she also says some of Gabriel's friends continue to harass her about the incident.

"It makes me hate the world," she says. "Why did he do this to me? I never did anything to him." Gabriel says he's sorry, too, but insists he never intended to rob anyone. He doesn't understand why he was detained over a joke, which he admits he took too far: "I spent enough time in there to figure my problems out. But did they have to lock me up? I'm only 12.