298 So.3d 660
Fla. Dist. Ct. App.2020Background:
- Appellant Scott Johnstone, convicted of possession of child pornography, was on sex-offender probation and moved into a residential neighborhood.
- A dispute with the next-door neighbors began after Johnstone informed them of his convictions and the neighbors told him they would not associate with him.
- Over nearly three years the neighbors reported numerous incidents they described as targeted harassment: placing debris on their driveway/mailbox, adding barbed wire, painting obscenities and a clown on the fence facing their yard, placing provocative signs, setting fires and using a lawnmower to blow ashes toward their yard when guests/grandchildren were present, walking repeatedly in front of their property (including at night), bathing in underwear visible to the neighbors’ granddaughter, and staring at the granddaughter in the pool.
- Neighbors repeatedly complained to police and to Johnstone’s probation officer, who warned him to stay away; Johnstone admitted to an officer that he did these things “to mess with” the male neighbor.
- The State charged Johnstone with stalking and filed an affidavit alleging violation of probation. The trial court found by a preponderance that Johnstone willfully, maliciously, and repeatedly harassed the neighbors (stalking), revoked probation, and sentenced him to prison. Johnstone appealed.
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Johnstone) | Held |
|---|---|---|---|
| Whether the evidence established a "course of conduct" directed at specific persons (stalking element) | Repeated, varied acts over ~3 years showed a pattern and continuity of purpose directed at the neighbors | Acts were lawful, isolated, or benign on his property and do not form a cohesive course of conduct | Court: Yes — acts taken together formed a repeated, purposeful course directed at the neighbors; sufficient evidence supports finding |
| Whether Johnstone acted "maliciously" and without legitimate purpose | His admission he did things to “mess with” the neighbor, targeted placement of signs/paint/fence decorations, debris and ash show legal malice and no legitimate purpose | Many acts had legitimate explanations (yard maintenance, personal use of own property); some acts were lawful nuisances, not malicious wrongdoing | Court: Yes — conduct was wrongful, intentional, and without legal justification; nonlegitimate purpose shown |
| Whether conduct caused "substantial emotional distress" under the reasonable-person standard | Objective circumstances (targeted acts, directed at grandchildren, surveillance, repeated interference) would substantially distress a reasonable person in victims’ position | Victims did not show objective markers (fear, counseling, sleep loss, increased security); annoyance/embarrassment is insufficient | Court: Yes — record contained evidence supporting that a reasonable person in victims’ position would suffer substantial emotional distress |
| Standard of review and sufficiency for probation revocation | Probation revocation requires willful and substantial violation supported by greater weight of evidence; trial court as factfinder entitled to deference | Any error in findings (e.g., lack of explicit finding on distress) or reliance on minor neighbor disputes requires reversal | Court: Applied abuse-of-discretion review and found no abuse — ample evidence supports willful, substantial violation and revocation affirmed |
Key Cases Cited
- Jenkins v. State, 963 So. 2d 311 (Fla. 4th DCA 2007) (standard for willful and substantial probation violation)
- Green v. State, 23 So. 3d 820 (Fla. 4th DCA 2009) (fact question on probation violation reviewed for evidence)
- Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007) ("maliciously" means legal malice: wrongful, intentional, without legal justification)
- T.B. v. State, 990 So. 2d 651 (Fla. 4th DCA 2008) (a series of individually lawful acts can, in aggregate, constitute stalking)
- O’Neill v. Goodwin, 195 So. 3d 411 (Fla. 4th DCA 2016) ("legitimate purpose" assessed case-by-case; contact legitimate when for non-harassment reason)
- Bouters v. State, 659 So. 2d 235 (Fla. 1995) (reasonable-person standard for substantial emotional distress)
- D.L.D. v. State, 815 So. 2d 746 (Fla. 5th DCA 2002) (objective test for whether conduct creates substantial emotional distress)
- McMath v. Biernacki, 776 So. 2d 1039 (Fla. 1st DCA 2001) (same objective standard guidance)
- Shannon v. Smith, 278 So. 3d 173 (Fla. 1st DCA 2019) (embarrassment does not equal substantial emotional distress)
- Butler v. State, 715 So. 2d 339 (Fla. 4th DCA 1998) (requirements for "series of acts" and aggregation analyzed)
- Klemple v. Gagliano, 197 So. 3d 1283 (Fla. 4th DCA 2016) (caution against using stalking/harassment law to police ordinary neighbor disputes)
- Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980) (court may infer noncompliance from probationer’s silence)