CFACDL Monthly Case Law Update
A summary of cases reviewed for our members, by our members
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Special thanks to CFACDL Director David Redfearn for his contributions
Issue: Whether, to prove harassment under the stalking statute, the State is required to prove (i) that D had contact with V or (ii) that V’s distress must be contemporaneous with the D’s actions causing such distress. (no to both)
Rule: Contact with the victim is not a prerequisite to establish stalking. And to prove harassment under Florida’s stalking statute, a victim need not suffer emotional distress contemporaneously with the actions of the alleged stalker.
Citation: Libersat v. State, 1D19-4489 (Fla. 1st DCA Oct. 16, 2020)
Facts: D appeals his conviction for aggravated stalking after court order, 784.048(4), Fla. Stat. (2018). The State alleged that after a DV injunction was entered against D, barring him from coming within 500 feet of his ex-wife’s residence or employment, D followed and harassed V by driving by her home, her job, her father’s home, and their child’s school. D never contacted V and V only learned about D’s behaviors several months later when D’s girlfriend told V what he had done. D argues on appeal that the trial court should have granted his motion for JOA because the State introduced no evidence he contacted V or that V knew about his actions when they occurred.
Analysis: To prove a violation of section 784.048(4), the State needed to show: (1) D knowingly, willfully, maliciously, and repeatedly followed, harassed, or cyberstalked V; (2) at the
time of the following, harassing or cyberstalking, an injunction for protection against domestic violence had been entered against D for the benefit of V; and (3) D knew the injunction had been entered against him. See Fla. Std. Jury Instr. (Crim.) 8.7(b). The State did not allege D cyberstalked V and D did not follow V. The issue is whether D “harassed” V.
The statute defines “harass” to mean “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). D argues there was insufficient evidence on the first element because he never contacted V and also V did not suffer substantial emotional distress because she did not know about his actions until months later.
As to the ‘no contact’ defense, nothing in the plain language of the statute supports an argument that contact with the victim is a prerequisite to establish stalking. Second, V’s claim of emotional distress need not be suffered contemporaneously with the actions of the alleged stalker. The DCA declined to “judicially engraft the requirements of ‘contact’ and ‘contemporaneous distress’ in the stalking statute.”
Keywords: Stalking, aggravated stalking, harass, contact, 784.048