Cap guns can pack a mean kick.
Ask 12-year-old Gabriel Kerslake of Phoenix, who was convicted of attempted armed robbery and spent 26 days locked up in a juvenile detention facility--all after pointing an unloaded cap gun at a schoolmate and demanding her money.
Gabriel maintains it was all just a joke. Two witnesses say they also thought it was a prank, albeit a cruel one. In retrospect, even the victim says she realizes Gabriel was kidding.
But the victim, who was 11 at the time, also says the incident frightened her then--and gives her chills to this day. The victim's mother says, "He shouldn't have scared my daughter like that. Especially in today's society. . . ."
She's got a point. There have been several highly publicized cases of kids shooting kids recently, including that of 13-year-old Danny Sorrels, who is awaiting trial in the fatal shooting of a classmate who made fun of his parents' house.
And Gabriel's no angel. His persistent tough-guy act helped put him in the lockup. Fellow students describe him as a fighter and a bully. His father calls him a "regular habitant" of the school detention room. John Popilek, the Superior Court commissioner who convicted Gabriel, says he decided to send Gabriel to the Durango Juvenile Detention Center because, in the wake of his conviction, Gabriel allegedly uttered death threats against other youths.
Gabriel's older brothers have had scrapes with the law, but Gabriel had no record before the cap-gun case. His parents are convinced he is a victim of hysteria.
While in Durango "my son missed school, and he learned how to write his name in gang slang," says his mother, Nancy Kerslake.
At Durango, Gabriel came face to face with gang members convicted of real robberies with real guns. He says he even rubbed elbows with David Scott Hunt, the teen who is charged with raping and murdering a pizza delivery woman.
Gabriel is on home detention, meaning he can only venture out with his parents or to go to school. He was released from Durango last week on good behavior, pending his sentencing November 10. He will probably be placed on probation, court officials say.
Here's how Gabriel, the victim and witnesses describe the attempted armed robbery:
Gabriel, who was 11 at the time, was riding bikes with friends after school last January 9 when he spotted two girls walking near Sunrise Elementary School in northwest Phoenix.
He reached into a friend's bag and grabbed a black cap gun. He put the plastic gun in his belt, approached one of the girls, a schoolmate, and screamed, "Give me all your money!" The victim, who wasn't carrying a purse, said she had no money.
Gabriel pulled out the gun, pointed it at her temple and again demanded her money. Again she said she didn't have any.
So he pulled the trigger. The cap gun--which wasn't loaded--made a soft "click" noise. Gabriel laughed and rode off, his friends trailing behind.
The other girl, 12-year-old Casiya Grant, says she told the victim that Gabriel just "wanted to do a joke to impress his friends." The victim, who requested anonymity, says she hung out with Casiya for about an hour before going home. "We didn't think anything of it," the victim says.
Her mother did, though. After hearing of the incident that night, the victim's mother went to school the next day and talked with an administrator, who called the police. "We're not an investigative unit," explains principal Kenneth Neumann. "If the idea of any type of weapon is used, it red-flags the situation." Police questioned the students involved. Gabriel says officers then handcuffed him and drove him to the Cactus Park Precinct and questioned him further.
Police spokesman Sergeant Kevin Robinson says the officers involved don't recall handcuffing the 110-pound suspect, but if they did, it would have been as a matter of policy. "We handcuff all our felony prisoners," he says.
"They treated me like I was an adult," Gabriel says. "I was thinking, 'What's all this about?' I didn't think they could do that to me."
A probation officer told the Kerslakes that Gabriel would have to get counseling or stand trial. They chose counseling, but after Gabriel missed a session, the family was told the boy must be tried.
"I said, 'Go ahead,'" Scott Kerslake, Gabriel's father, says. "I didn't realize how serious it was." In August the case finally went before Commissioner Popilek.
The victim, who was described as trembling throughout the trial, testified that she believed she was in real danger when Gabriel brandished the gun. She tells New Times that she has "seen a gun before" and that the cap gun looked real. (The cap gun's owner, 12-year-old John Merrill, says the toy--which his parents gave him on his 8th birthday--was a "plastic Uzi" that "looked kinda real.)
Deputy county attorney Catherine Breeze told the commissioner that because the victim thought the gun was real--even momentarily--Gabriel should be found guilty. "His actions speak louder than his words," Breeze told the court.
But a transcript of the trial indicates that the victim stated on several occasions that she realized afterward that Gabriel was joking. In one instance, Breeze asked what she did after Gabriel rode away on his bike. The victim responded: "Nothing. I thought it was a joke. . . ."
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.
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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.