27 Fla. L. Weekly Supp. 674b

Online Reference: FLWSUPP 2708MCGICriminal law — Stalking — State presented sufficient evidence to permit jury to find that defendant willfully, maliciously, and repeatedly followed or harassed the victim — Trial court, in granting defendant’s post-verdict motion for judgment of acquittal, applied wrong standard when it failed to view evidence in light most favorable to state — Remand for reinstatement of jury verdict of guilty and for sentencing

STATE OF FLORIDA, Appellant, v. STEPHON MCGILL, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 17-188 AC. L.T. Case No. M15-26569. October 10, 2019. An Appeal from the County Court in and for Miami-Dade County, Altfield, Judge. Counsel: Jessica Underwood, Assistant State Attorney and Katherine Fernandez Rundle, State Attorney, for Appellant. Stephon McGill, Pro se, for Appellee.

(Before EIG, BUTCHKO, and MANNO SCHURR, JJ.)

(MANNO SCHURR, J.) This is an appeal from a County Court Final Order that acquitted Appellee Stephon McGill (McGill) of the criminal charge of stalking. On August 14, 2015, McGill, a police officer of the City of Miami Police Department, was arrested on the charge of stalking his ex-girlfriend Vivian Copeland (Copeland or victim).

To prove the charge of stalking, a person is guilty if he or she “willfully, maliciously and repeatedly follows, harasses, or cyberstalks another person.” § 784.048(2), Fla. Stat. (2014). The stalking statute defines “harass” as “a means to engage 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. (2014). The term “course of conduct” is defined as “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose” and “does not include constitutional protected activity.” § 784.048(1)(b), Fla. Stat. (2014). We find that the State established a prima facie case of stalking under the statute beyond a reasonable doubt based on McGill’s following or harassing conduct. Here, in reviewing the record, we find that the trial court failed to view the evidence in the light most favorable to the State and therefore applied the wrong standard.

The State relies upon Robertson v. Robertson, 164 So. 3d 87 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1073b] and McKinnon v. State, 712 So. 2d 1259 (Fla. 1st DCA 1998) [23 Fla. L. Weekly D1723c] for a comparison of McGill’s alleged following and harassing conduct. In Robertson, the court found that an individual’s conduct caused substantial emotional distress with no legitimate purpose when he went to his ex-wife’s home for three consecutive nights in the middle of the night and walked around her property with a flashlight. Robertson, 164 So. 3d at 88. Evidence of two incidents is enough to constitute “a course of conduct.” McKinnon, 712 So. 2d at 1260 (stating that a telephone call and subsequent visit to the victim’s apartment complex amounted to a course of conduct of harassment).

The County Court Final Order of Acquittal determined that the two “following” incidents of McGill’s conduct served the legitimate purpose of checking on the well-being of his children. However, the State correctly avers that McGill’s actions of following the victim under section 784.048, Florida Statutes (2014) do not require a legitimate purpose for the conduct of “following.” Based on the testimony of witnesses in the light most favorable to the State, a trier of fact could have found that McGill repeatedly followed the victim from her residence in early August and on the evenings of August 11th and August 13th of 2015. At trial, the State presented unrefuted evidence of McGill: following the victim on three occasions, calling the police to her home on five occasions, and sitting across from her residence in his pick-up truck at all hours of the night over the course of the four-day period of August 11-14, 2015. Based on the testimony of witnesses in the light most favorable to the State, a trier of fact could have found that McGill’s conduct between August 11-14, 2015 had a continued purpose that was willful, malicious, and repeated.

An issue on appeal revolved around the State’s showing of “no legitimate purpose” for McGill’s conduct, amounting to harassment of the victim. The county final order of acquittal determined that evidence of a legitimate purpose for McGill’s actions existed by McGill calling the police for child welfare checks, in his belief that he was enforcing a civil custody order (that he was entitled to custody of his children). Whether the contact is legitimate is judged case-by-case, and 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) [41 Fla. L. Weekly D1527b]. Based on the testimony presented in the light most favorable to the State, a trier of fact could have found that McGill’s conduct was not constitutionally protected behavior, and the use of the police served no legitimate purpose except to harass the victim. McGill had no legitimate purpose to his actions where he was informed that the police could not enforce a civil joint or shared custody order, where he knew of the open DCF investigation, and where he sat outside the victim’s residence at all hours of the night and repeatedly followed the victim. Consequently, McGill did not address his complaints to the proper governmental agency and used the police for an improper purpose.

The State argues that the trial court considered information not in evidence and not required by the stalking statute when it granted the motion for judgment of acquittal. The county final order of acquittal considered information not entered into evidence,¹ by determining that McGill did not show malice towards the victim by “words, gestures, or acts.” Specifically, McGill did not have any contact with the victim, nor make any threats or display aggressive behavior to her. However, the stalking statute does not require the State to prove direct or indirect contact with the victim. Seitz v. State, 867 So. 2d 421, 422 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D210a] (stalking by harassment). By taking into consideration that there were no threats or aggression toward the victim, the State correctly argues that information not in evidence was relied upon by the trial court and did not pertain to the elements of stalking under section 784.048(2), Florida Statutes (2014). McGill’s behavior did not have to include a threat to the victim.

Based on this extensive record, we find that the trial court erred by entering a final order of acquittal on the charge of stalking, because the State proved McGill willfully, maliciously, and repeatedly followed or harassed the victim, the elements of the charge of stalking. Accordingly, we reverse the entry of the county final order of acquittal on the charge of stalking and remand to reinstate the jury verdict of guilty and proceed with sentencing.

REVERSED and REMANDED. (EIG and BUTCHKO, JJ. concur.)

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¹The final order stated, “The State’s own witness said that there were never any threats, that there was never any conduct on the part of defendant to cause her harm.”