Johnstone v. State

298 So.3d 660

Scott JOHNSTONE, Appellant,

v.STATE of Florida, Appellee.

No. 4D19-212

District Court of Appeal of Florida, Fourth District.

[June 17, 2020]

Ashley Nicole Minton of Minton Law, P.A., Fort Pierce, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.

Forst, J.

Determining whether an individual's behavior is merely boorish or juvenile as opposed to illegal stalking subject to criminal penalty can require the drawing of fine lines. Such is the case here, where the trial court found that Appellant Scott Johnstone had violated his probation by repeatedly harassing his neighbors over the course of nearly three years. Finding no abuse of discretion with respect to the court's revocation of probation, we affirm.

Background

Pursuant to a plea agreement, Appellant was convicted of ten counts of possession of child pornography and was jailed for less than a year. Upon release, he was placed on sex offender probation. Appellant moved to a house in a residential neighborhood. Shortly after this move, an antagonistic relationship developed between Appellant and the couple who lived next door to him (hereinafter, "the neighbors").

The discord began when Appellant came over to the neighbors’ home to inform them of the child pornography convictions. In response, the male neighbor told Appellant that his wife would not want to associate at all with Appellant in light of the child pornography convictions and later cautioned Appellant: "I'm serious, we can't do this anymore, ya’ know we cannot communicate, we can't do this, so stay on your side, I'll stay where I'm at, everything will be fine." The male neighbor stood firm with his position despite Appellant's attempts to convince him otherwise.

According to the neighbors, after this encounter Appellant commenced a campaign of harassment against them. Appellant's "yard" was several acres. Appellant first moved his fence to the edge of his property line and removed tree limbs, which gave him a direct view of his neighbors’ backyard. Over the next nearly three years, Appellant harassed the neighbors (and at times their young grandchildren) by committing the following acts:

• Appellant placed weeds, rocks, "chunks" of concrete taken from his pond, and tree limbs onto the neighbors’ driveway, in their yard and in front of their mailbox.

• Appellant placed barbedwire on the fence adjoining the neighbors’ property.

• Appellant placed empty paper bags on the fence posts, some of which would blow onto the neighbors’ property.

• Appellant painted the side of his fence that faced the neighbors’ property with obscenities ("f— you" and "a—holes"), a hand-painted picture of a clown-like character, and signs, including one that said "STUPID PEOPLE BEYOND THIS POINT" with an arrow pointing to the neighbors’ property. Appellant's entire property was surrounded by the fence, but the only portion of the fence adorned with these "ornamentations" was the portion facing the neighbors’ property. The remainder of the fence was not decorated.

• On several occasions when the neighbors’ grandchildren or friends were in the neighbors’ yard ("anytime [the neighbors] had people over"), Appellant would "burn fires" in his yard and then drive his lawnmower in such a way that the fire's ashes would blow onto the neighbors’ property, by "park[ing] his mower on [the fire], leav[ing] [the mower] on top of [the fire] with the blades engaged ..., with the output of the mower facing [the neighbors’] way ... [and] just sit[ting] there and let[ting] it run for about 10 or 15 minutes until he got it stirred up ...." The fires were set within one hundred feet of the neighbors’ house but three to four hundred feet away from Appellant's house. The female neighbor testified that "he would always do it in, whenever the wind was blowing towards us so that the smoke would come over onto our property ... [s]o anytime we were outside with our kids he was trying to chase us out, out of the yard."

• On three occasions when the neighbors’ grade-schooler granddaughter was visiting, Appellant stood in his backyard, which faced the neighbors’ property, wearing nothing but "whitey tighties," and "bathed" himself with soap and water from his hose.

• The neighbors’ surveillance cameras captured footage of Appellant, on numerous occasions, walking back and forth in front of their property, including in the middle of the night.

• The final incident, which led to the neighbors’ third protest to the police, occurred when the female neighbor was in the pool with her granddaughter. After the female neighbor and her granddaughter got in the pool, Appellant "walked up to the corner of [his] property ... and stood there ... staring at [the female neighbor and her granddaughter] in the pool" for ten minutes despite the female neighbor "yell[ing] for him to get the hell outta there."

On several occasions, the neighbors contacted the police, fire department (regarding the fires started in Appellant's backyard), and Appellant's probation officer to complain about the most recent act of harassment. The probation officer testified that in January 2018 she responded to two calls from the male neighbor and a call from another neighbor, both individuals complaining that Appellant was walking his dog on his neighbors’ property. Appellant told the probation officer that he believed he was walking on an access road. The officer told him "to stop all this commotion it's best that you just stay away from them and so there won't be no violations, any other issues to stay away, stay, stay away from their property and there shouldn't be no problems."

A second officer testified that in October 2018, several days before Appellant's arrest, he responded to a call from the male neighbor. After speaking with the male neighbor, who recounted the incidents of harassment, the officer met with Appellant and asked him about the complaints of Appellant trespassing on the neighbors’ property. The officer testified that Appellant claimed he was on common property, but "then he said well, truth be told I do [ ] these things to mess with [the male neighbor] because initially he had messed with [Appellant] first." Several days after this meeting, Appellant was arrested and charged with stalking. In addition, the State also filed an affidavit of violation of probation, alleging that Appellant violated his probation by committing the offense of stalking.

The trial court found by a preponderance of the evidence that Appellant violated his probation by violating the condition requiring that Appellant "live without violating any law; conviction in a court of law is not necessary for such a violation of law to constitute a violation of ... probation ...." In pronouncing its decision, the court noted that Appellant's actions, such as the signs on his fence, were targeted at the neighbors and their grandchildren and concluded that "[a]ll of this course of conduct in my view constitute harassment, it's malicious and repeated and serves no legitimate purpose."¹ Appellant's probation was revoked, and he was sentenced to prison. This appeal followed.

Analysis

"[A] violation which triggers a revocation of probation must be both willful and substantial, and the willful and substantial nature of the violation must be supported by the greater weight of the evidence." Jenkins v. State , 963 So. 2d 311, 313 (Fla. 4th DCA 2007) (quoting Steiner v. State , 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992) ). "The determination of whether a violation of probation is willful and substantial is a question of fact and will not be overturned on appeal unless the record shows that there is no evidence to support it ." Green v. State , 23 So. 3d 820, 821 (Fla. 4th DCA 2009) (quoting Jenkins , 963 So. 2d at 313 ) (emphases added). "On appeal, the trial court's order is reviewed under an abuse of discretion standard." Davis v. State , 796 So. 2d 1222, 1225 (Fla. 4th DCA 2001).

The trial court determined that Appellant had violated section 784.048(2), Florida Statutes (2018), which provides in pertinent part that "[a] person who willfully, maliciously, and repeatedly ... harasses ... another person commits the offense of stalking, a misdemeanor of the first degree ...." The statute defines "harass" as "engag[ing] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." § 784.048(1)(a), Fla. Stat. (2018). The statute goes on to define "course of conduct" as "a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests." § 784.048(1)(b), Fla. Stat. (2018). Thus, stalking requires the proof of a series of acts, willfully and maliciously directed at a specific person(s) and evidencing a continuity of purpose, which acts serve no legitimate purpose and cause substantial emotional distress to that person(s).

"Malicious behavior goes beyond intent to cause injury to include behavior that is ‘without just cause or excuse.’ " Khan v. Deutschman , 282 So. 3d 965, 968 (Fla. 1st DCA 2019) (quoting Malicious , Black's Law Dictionary (10th ed. 2014)). This court has held that "[t]aking the text of section 784.048(4) as a whole, and considering its context and the discernible purposes of the legislature, we conclude that the plain meaning of the statutory term maliciously is legal malice: i.e. ‘wrongfully, intentionally, without legal justification.’ " Seese v. State , 955 So. 2d 1145, 1149 (Fla. 4th DCA 2007).

"[S]talking is a series of actions that, when taken individually, may be perfectly legal." T.B. v. State , 990 So. 2d 651, 654 (Fla. 4th DCA 2008) (quoting St. Fort v. State , 943 So. 2d 314, 316 (Fla. 4th DCA 2006) ). As such, even if Appellant's actions, when viewed individually...