Legal Pleadings:

Amended Initial Brief – Stalking #2


The Appellant was arrested, pursuant to an arrest warrant, and charged with stalking, in violation of Florida Statute 748.048(2). (R. 1 at 1-3). The Appellant and the alleged victims, L. and J. W., are neighbors. (R. 3 at 28). Prior to the initiation of criminal proceedings, one of the alleged victims in the case, J. W., attempted to have the Appellant served with numerous injunctions, regarding identical allegations to the instant case, over the course of three years. The injunctions, which were ultimately determined on the merits, were denied by the Circuit Court, in and for Duval County, Florida. See injunctions in other Duval Cases. The injunctions were dismissed by the Circuit Court on the merits, as “the evidence presented [was] insufficient under Florida Law . . . to allow the court to issue an injunction for protection.” The State, in a sworn traverse, conceded that the State was aware that J. W. had sought several injunctions against the Appellant, though was ultimately unsuccessful.

On February 15, the Appellant was formally charged by Information with one count of stalking. (R. 1 at 11). Subsequently, the Information was amended on July 1. (R. 1 at 47-48). The Amended Information changed three portions of the Initial information filed in this cause. First, the Amended Information expanded the scope of time from January 1 through January 26, to August 6 through January 26. (R. 1 at 47-48). Second, language was included to allege that “cyberstalking” had occurred. (R. 1 at 47-48). Finally, the Amended Information alleged that the Appellant had committed the offense against “J. R. W. and L. E. W.” (R. 1 at 47-48). On the day of jury selection, July 28, the State amended the Amended Information a final time. (R. 1 at 174-78). The State changed the allegation, such that it no longer stated that the offense was committed against “J. R. W. and L. E. W.”, but rather that the offense was committed against “J. R. W. and/or L. E. W.” (R. 1 at 174-78). The Assistant State Attorney, in open court, indicated that “[a]ll that’s happening is the State would file an Information in open court amending the previously amended information from J. W. and L. E. to J. W. and/or L. E.” (R. 3 at 4). The State further requested to leave the cyberstalking allegation in the Second Amended Information, but requested the trial court not read the cyberstalking allegation to the jury either when the Second Amended Information was read, or as part of the jury instructions. (R. 3 at 4).

Prior to the selection of a jury and trial, the Appellant, on April 19, and pursuant to Rule 3.190(c)(4), Florida Statutes, filed a timely motion, entitled “Defendant’s Sworn Motion to Dismiss” (hereinafter Motion to Dismiss). (R. 1 at 24-27). Defendant’s Motion to Dismiss, pursuant to the rule and in compliance with its requirements, alleged that “the undisputed facts do not establish a prima facie case of guilt against the [Appellant].” (R. 1 at 27). In the Motion to Dismiss, the Appellant averred, inter alia, that:
(1) “the facts alleged do not rise to the level of stalking”,
(2) the Appellant lacked mens rea to commit the offense in light of the Circuit Court previously denying injunctions (which have a significantly lower standard of proof) on three separate occasions for the same alleged conduct,
(3) that stalking requires that the conduct complained of not have a legitimate purpose and that the Appellant’s conduct “had a legitimate purpose”, and;
(4) “the behavior exhibited by Defendant would not cause a reasonable person anxiety.”
(R. 1 at 23-27).

On April 27, the State filed its “Traverse”, which both failed to allege that the undisputed facts established a prima facie case of guilt against the Appellant, or dispute factual allegations by Appellant that, if admitted, would compel dismissal by the trial court. (R. 1 at 28-29). Regardless of the glaring deficiencies in the State’s Traverse, the trial court denied the Motion to Dismiss. Doc. 81. There was no written order explaining the trial court’s decision in denying the Motion to Dismiss.

Prior to trial, the State filed two motions in limine. (R. 1 at 50, 52). The State’s first motion in limine (hereinafter State’s First Motion in Limine), which the trial court granted, argued that the Appellant should not be allowed to present any evidence regarding J. W.’s failed efforts to obtain injunctive relief from the actions of her neighbor, the Appellant. (R. 1 at 50). The State’s First Motion in Limine argued that evidence about “the victim’s previous attempts to have injunctions grated (sic) against the defendant” should be inadmissible as it would “be highly prejudicial to the State”, and would lead to “confusion of issues”, “unfair prejudice”, and “mislead the jury.” (R. 1 at 50). The trial court granted the State’s First Motion in Limine and the State, no less than a half a dozen times during the course of the trial made reference to, elicited evidence of, or argued the efforts by Ms. W. to obtain an injunction against the Appellant, all seemingly in violation of their own motion.

On July 25, a jury was selected in this cause. Doc. 135. The trial was held entirely on July 28. Doc 152. As a result of that trial, the Appellant was found guilty by the jury, as to count one of the Second Amended Information. (R. 1 at 171). On August 11, the trial court held a sentencing hearing. Docs. 186- 216. The trial court adjudicated the Appellant guilty of count one sentenced the Appellant to twelve months of probation with mandatory court costs, community service hours, and a requirement that the Appellant remain five hundred feet from the W. residence. (R. 1 at 180). The Appellant, through counsel, filed a timely notice of appeal. (R. 1 at 189-90).



I. Standard of Review

In cases where a State Constitutional violation is alleged, as here, the rule is that “the state is required to prove there is no reasonable possibility that the error complained of contributed to the convictions applies to both constitutional errors, such as that now before us, and to non-constitutional errors in criminal trials.” Robinson v. State, 881 So. 2d 29, 31–32 (Fla. 1st DCA 2004) citing Goodwin v. State, 751 So. 2d 537 (Fla.1999).

The harmless error rule does not apply to due process and Constitutional violations, as failure to properly follow the State Constitution shifts the burden to the State to prove beyond a reasonable doubt that the error did not contribute to the verdict.

II. Preservation

The Appellant, during the charge conference, stated that the defense was concerned with the use of “a conjunction there, which is or.” (R. 3 at 215). Nevertheless, as the issue is one of Constitutional magnitude and due process concerns, it is the burden of the State to prove that the error did not contribute to the verdict beyond a reasonable doubt.

IV. Application of the Facts to the Law

Florida Rule of Criminal Procedure 3.440 states that “[n]o verdict may be rendered unless all of the trial jurors concur in it.” “As a state constitutional matter, a criminal conviction requires a unanimous verdict in Florida. This has been an ‘inviolate tenet of Florida jurisprudence since the State was created.’ Robinson v. State, 881 So. 2d 29, 30 (Fla. 1st DCA 2004) quoting Bottoson v. Moore, 833 So. 2d 693, 714 (Fla.2002).

The First District Court of Appeal, adopting the federal rule, has held that “where a single count embraces two or more separate offenses, albeit in violation of the same statute, the jury cannot convict unless its verdict is unanimous as to at least one specific act.” Id. citing United States v. Holley, 942 F.2d 916, 927-29 (5th Cir.1991). In this case, as in all stalking cases, only one individual can be a victim, as stalking is defined as a “course of conduct directed at a specific person.” Where the State charges more than one crime in the information (such as here where multiple victims are alleged in the disjunctive), the information is duplicitous. In this case, the First Amended Information was changed, on the morning of trial, to change the victims being listed in the conjunctive, “and”, to being charged in the alternative, “and/or”. Had the State not made the change, there would be no Constitutional error.

The error, put plainly, can be explained with the following example. The jury, utilizing the “and/or” language, could have found the Appellant “guilty as charged” if two jurors believed that only L. W. had been stalked and four jurors believed that only J. W. had been stalked. However, as a Constitutional matter, the jury would not have reached a unanimous verdict if the two alleged victims were charged in separate counts. In this case, the State charged the Appellant with two crimes in the same count, vitiating the need for jury unanimity.

Florida courts have routinely held that “[w]here it is reasonable and possible to distinguish between specific incidents or occurrences … then each should be contained in a separate count of the accusatory document.” Perley v. State, 947 So. 2d 672, 675 (Fla. 4th DCA 2007) citing State v. Dell’Orfano, 651 So.2d 1213, 1216 (Fla. 4th DCA 1995). In Perley, as here, this is not an instance where the State has charged one crime with alternative theories of the commission, but two separate crimes. The allegations with regard to L. W., all in early August, preceded the allegations related to J. W., which occurred after the incidents with L. W.

“Allowing the jury to convict [defendant] without ensuring unanimity that the same incident constituted the charged crime compromised the validity of the verdict.” Saldana v. State, 980 So. 2d 1220, 1222 (Fla. 2d DCA 2008). In both Saldana and Perley, the State alleged two separate crimes and charged them using the “and/or” language, which precludes certainty that the jury reached a unanimous verdict. In addressing the Perley case, the Saldana court held that error exists where “some jurors might have convicted the defendant based on one incident while others might have convicted him based on the other incident. There was no guarantee of a unanimous finding that the same incident constituted” the charged crime. Id.

Although the same statute is alleged, “in criminal cases each crime against a different victim is a separate and distinctly different criminal offense.” Rose v. State, 507 So. 2d 630, 631 (Fla. 5th DCA 1987). As the First District Court of Appeal has held, this is true even if the duplicative charges “are in violation of the same statute.” Robinson at 31. Further, it is not up to either the appellate court or the trial court to divine the jury’s intentions. As the First District has also held, “[n]either this Court nor the trial court is privileged to make this determination for the jury. Bashans v. State, 388 So. 2d 1303, 1305 (Fla. 1st DCA 1980).

The error is invited by the State. As the Perley court held, “The State could have charged [defendant with two separate counts], but chose not to do so. The State cannot then present evidence as to both alleged [offenses] and inform the jury it can convict for either one, thereby making it difficult, if not impossible, to determine which incident the jury convicted Perley for, or if the jury reached an unanimous decision. Therefore, we reverse Perley’s conviction.” Perley at 675.

Because of the invited error by the State, the trial court did not address the duplicitous information and permitted the jury to return a general verdict. Because it is unclear from the verdict which of the two duplicitous counts (L. W. or J. W.) the State charged in one count, the case must be remanded back to the trial court for a new trial.



I. Standard of Review

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). citing Tibbs v. State, 397 So. 2d 1120 (Fla.1981). “It is the trial judge’s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences.” Durousseau v. State, 55 So. 3d 543, 556 (Fla. 2010) citing State v. Law, 559 So.2d 187, 189 (Fla.1989).

II. Preservation

Appellant timely moved for judgment of acquittal at the conclusion of the State’s case and renewed said motion after the defense rested its case in chief.

IV. Application of the Facts to the Law

As addressed in the facts of the case, supra, as to L. W., there is insufficient, competent evidence from which a jury could infer guilt. L. W. testified that he had only two interactions with the Appellant, both in early August. The first interaction was when the Appellant warned L. W. that he could not trespass on the K.’s property by driving his vehicle on the trails. (R. 3 at 28-29, 36). That was the only time, in the years of living on the property, the Appellant came on the W. property. (R. 3 at 37). The Appellant informed L. W. he was not permitted to drive on the property that the Appellant was responsible for patrolling. (R. 3 at 28-29). There were no threats or any sort of harassing behavior, by either party, during that interaction. (R. 3 at 28-29).

The second interaction was an argument over limbs that had been cut down on the property. (R. 3 at 29-30). L. W. conceded that both men had argued and said inappropriate things to each other. (R. 3 at 30). The dispute wholly fails to rise to the level of stalking. L. W. testified that there had been no other incidents “between him and me.” (R. 3 at 30-31). There were no other allegations or testimony that the Appellant followed or harassed L. W. L. W. provided no testimony that he subjectively or objectively suffered substantial emotional distress, though he testified he was frustrated after the dispute. (R. 3 at 30).

Stalking requires a continuous course of conduct. “Thus, by its statutory definition, stalking requires proof of repeated acts.” Lukacs v. Luton, 982 So. 2d 1217, 1219 (Fla. 1st DCA 2008). A two year old, one-off, shouting match with a neighbor is insufficient as a matter of law to sustain a criminal conviction. The trial court indicated that it was a close issue, particularly as to L. W. (R. 3 at 171-72).

As to J. W., “courts have generally held that contact is legitimate when there is a reason for the contact other than to harass the victim.” O’Neill v. Goodwin, 195 So. 3d 411, 413 (Fla. 4th DCA 2016). Although the Appellant has no burden, there was a plethora of evidence for the fact that the Appellant enjoyed riding the property, was required to ride the property as a condition of his rent, and had the permission of the owner of the property to ride for both pleasure and purposes of patrolling the property.

Where the trial court erred on the law, was a mistaken belief that if conduct has both a legitimate purpose and is offensive to the alleged victim, stalking has occurred. Conduct that has a legitimate purpose cannot, by law, be stalking. The State, in argument regarding the Appellant’s motion for judgment of acquittal, admitted that they “concede that [the Appellant] was enlisted by the property management to patrol the lands.” In determining whether an action “serves a legitimate purpose is broadly construed and will cover a wide variety of conduct.” David v. Textor, 189 So. 3d 871, 875 (Fla. 4th DCA 2016) (collecting cases). While conduct may serve both legitimate and illegitimate purposes, the courts are clear that the term is to be broadly construed in favor of the individual being accused. This contention is even more applicable when criminal liability attaches.

Courts have held that isolated threats are insufficient to cause “substantial emotional distress.” Id. It cannot be gainsaid that being annoyed by your neighbors activity, of lawfully riding his vehicle on private property, cannot rise to the level of stalking, regardless of the subjective annoyance by the complainant. Florida courts have routinely determined, as has the Circuit Court of Duval County, three separate times with regard to J. W., determined that the stalking statute is not designed to punish neighbors you do not get along with. Florida courts are want to limit legitimate conduct because it bothers a sensitive individual or individuals who are discourteous to one another. See generally Richards v. Gonzalez, 178 So. 3d 451 (Fla. 3d DCA 2015), reh’g denied (Nov. 18, 2015); Touhey v. Seda, 133 So. 3d 1203 (Fla. 2d DCA 2014).

In this case, both the W. and the Appellant used foul language with one another and did unneighborly things. However, Florida’s criminal laws are not designed to punish neighbors who cannot behave civilly with one another. Given the lack of evidence, the trial court should have granted the Appellant’s motion for judgment of acquittal. Therefore, in light of the foregoing, this Honorable Court should determine that the Appellant is entitled to a judgment of acquittal and dismiss count one of the Second Amended Information.



I. Standard of Review

“As a general rule, a trial court’s ruling on the admissibility of evidence will not be reversed, absent an abuse of discretion.” McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006) citing Globe v. State, 877 So. 2d 663, 673 (Fla. 2004); Russ v. State, 832 So. 2d 901, 910 (Fla. 1st DCA 2002). “However, a court’s discretion is limited by the evidence code and applicable case law. A court’s erroneous interpretation of these authorities is subject to de novo review.” Id. citing Gilliam v. Smart, 809 So. 2d 905 (Fla. 1st DCA 2002).

Where a defendant fails to “object to or move for a mistrial based on the allegedly improper comments, the standard of review is fundamental error. Thomas v. State, 748 So. 2d 970, 985 n. 10 (Fla.1999). ‘In order for an error to be fundamental and justify reversal in the absence of a timely objection, ‘the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.”” Brinson v. State, 153 So. 3d 972, 975 (Fla. 5th DCA 2015) quoting Randolph v. State, 853 So. 2d 1051, 1068 (Fla.2003) (quoting Brown v. State, 124 So. 2d 481, 484 (Fla.1960)).

This Court “must look at the entire trial record and adhere to the established law that ‘when the prosecutorial argument taken as a whole is of such a character that neither rebuke nor retraction may entirely destroy their sinister influence … a new trial should be granted, regardless of the lack of objection or exception.’” Brown v. State, 787 So. 2d 229, 230 (Fla. 2d DCA 2001); quoting DeFreitas v. State, 701 So. 2d 593, 596 (Fla. 4th DCA 1997) (quoting Ryan v. State, 457 So. 2d 1084, 1091 (Fla. 4th DCA 1984)). See also Caraballo v. State, 762 So. 2d 542, 547 (Fla. 5th DCA 2000) (holding that fundamental error occurs in closing when the “prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury”).

II. Preservation

The Appellant objected to the State’s Motion in Limine, which sought to exclude all mention of J. W.’s efforts to seek injunctions. (R. 1 at 50). The State’s motion was based on the argument that it would be misleading and confusing to the jury to allow such testimony. The Appellant timely objected, and was overruled, to statements by J. W. regarding her desire to see the Appellant criminally prosecuted.

Otherwise, the Appellant failed to timely object to the numerous improper comments, questions, and pejorative statements by the State. However, this Honorable Court must still review the statements, both individually and cumulatively. To determine if their inclusion in the trial constituted fundamental error and therefore, requires a new trial.

IV. Application of the Facts to the Law
The State’s First Motion in Limine contended that the trial court should exclude any evidence about “the victim’s previous attempts to have injunctions grated (sic) against the defendant.” In support, the State averred that allowing such evidence would “be highly prejudicial to the State”, and would lead to “confusion of issues”, “unfair prejudice”, and “mislead the jury.” (R. 1 at 50). The trial court granted the State’s First Motion in Limine, and the State, on numerous occasions through the course of the trial made reference to, elicited evidence of, or argued the efforts by Ms. W. to obtain an injunction against the Appellant. By allowing such testimony and argument, the prejudice and confusion was born entirely by the Appellant, as the jury was given the impression that the Appellant was in violation of a court order by engaging in the lawful conduct on the K.’s property.

As discussed, supra, J. W. had on several occasions attempted to get injunctions against the Appellant. (R. 2 at 198, 202-04). She testified her sole purpose was to prevent the Appellant and others from riding the trails that he was hired to patrol. However, in light of the trial court’s ruling, the defense was precluded from raising the issue. (R. 1 at 50). The State inappropriately asked several witnesses about J. W.’s efforts to obtain injunctions.

When J. W. testified, the State asked her if she had, “attempted to get an injunction against the defendant?” (R. 3 at 55). The State followed up by asking how many injunctions she tried to obtain. (R. 3 at 55). Pursuant to the trial court’s ruling, the defense was not allowed to elicit that those injunctions had been denied by the Circuit Court on the merits. The error was made worse, as the State asked not only later in her testimony to confirm “injunctions that were filed.” (R. 3 at 86). By using this language, it implied to the jury that the injunctions had merit or were granted. The State continued, asking J. W. “[w]hy did you want to have injunctions filed?” (R. 3 at 86). Counsel for the State, over defense objection, later testified that the Appellant had been arrested and asked J. W. if she had wanted the Appellant to be arrested. (R. 3 at 86).

Such testimony is highly misleading, as it implied the Appellant was committing an additional, substantive crime. Evidence of an improper collateral crime is highly prejudicial to the Appellant. “The admission of improper collateral crime evidence is presumed harmful error because of the danger that a jury will take the bad character or propensity to commit the crime as evidence of guilt of the crime charged.” Mims v. State, 872 So. 2d 453, 456 (Fla. 2d DCA 2004) (quoting Sims v. State, 839 So. 2d 807, 811 (Fla. 4th DCA 2003)).

The State subsequently asked O. W. questions about the officer’s theory of the case and injunctions. (R. 3 at 107). In the State’s closing argument, the following was argued:
Ms. W. wanted it to stop. She tried to get an injunction. She tried to get an injunction three times. She said she didn’t want if to continue anymore, so she tried to get the injunction. And even on direct she was asked; did you want him arrested? She said, no, I don’t want him arrested.

(R. 3 at 233). By allowing the State to argue about the injunctions, while hamstringing the Appellant, the jury was dangerously mislead and given the inaccurate impression that the Appellant was violating the law or an injunction through his actions.

In addition to asking further information about the injunctions, the State asked the officer why, in the officer’s opinion, the Appellant was not arrested at that time. (R. 3 at 107). The officer was allowed to testify to her theory of the case.

The Florida Supreme Court has routinely held that “a witness’s opinion as to the guilt or innocence of the accused is not admissible.” Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000). This is particularly true when that witness is a law enforcement officer, as it is improper to discuss that a defendant was arrested by the police, as it implies that the investigating officer knows something not before the jury, is irrelevant, and impermissibly bolsters the State’s case. In this case, the State asked the officer the theory of the case and how the officer interpreted the behavior of the Appellant.

Additionally, The State, repeatedly invoked the quotes “white trash nig***,” “f***ing retard,” and “crazy bit**.” (R. 3 at 250, 253). The statements were elicited by several witnesses and became a theme of the State’s closing argument. The State argued that such language will cause “a reasonable person [to] have substantial emotional distress.” (R. 3 at 253).

“It is improper for a prosecutor to refer to the accused in derogatory terms, in such manner as to place the character of the accused in issue.” Crew v. State, 146 So. 3d 101, 109 (Fla. 5th DCA 2014); citing Pacifico v. State, 642 So. 2d 1178, 1183 (Fla. 1st DCA 1994) (citing Lewis v. State, 377 So. 2d 640 (Fla.1979); Donaldson v. State, 369 So.2d 691 (Fla. 1st DCA 1979)); Gore, 719 So.2d at 1201 (“It is clearly improper for the prosecutor to engage in vituperative or pejorative characterizations of a defendant or witness.” (citations omitted)); Ruiz v. State, 743 So.2d 1, 9 (Fla.1999).
In closing argument, the State continued this improper line of evidence and argument, commenting on several occasions, that J. W. attempted to obtain an injunction on three occasions, that the Appellant should be held responsible because the police had warned him, that he was guilty for using profanity with L. W., and other pejorative attacks on his character.

The continuous and inappropriate arguments were neither fleeting nor accidental. In fact, they became a feature of the State’s closing argument and examination of the State’s witnesses. In light of the grossly inappropriate argument and questioning by the State, the Appellant was deprived of his Constitutional right to a fair trial, particularly in light of the fact that there is little evidence of the Appellant’s guilt. Because of the legal and factual weaknesses in the State’s case, the danger of inappropriate argument, innuendo, and ad hominem attacks are even more likely to undermine confidence in the jury’s verdict. In light of the foregoing, the Appellant is entitled to a new trial.