Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-4489 _____________________________ TONY BRANDEN LIBERSAT, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Francis Allman, Judge. October 16, 2020 PER CURIAM. Tony Branden Libersat challenges his conviction for aggravated stalking after court order, in violation of section 784.048(4), Florida Statutes (2018). In 2017, an injunction for protection against domestic violence was entered against Libersat prohibiting him from coming within 500 feet of his ex-wife’s (“E.L.”) residence or place of employment. The State alleged that on numerous occasions in 2018, Libersat violated the injunction and followed or harassed E.L. by driving by her home, her job, her father’s home, and their child’s school. At the time, he was on probation for a prior conviction for the same offense and was being monitored by a GPS device. He never contacted E.L. and she did not know about his actions until months later, when his ex- girlfriend contacted her and told her what he had done. On appeal, Libersat contends the trial court erred when it denied his motion for judgment of acquittal because the State introduced no evidence that he followed or harassed E.L., as those terms are used in section 784.048(4), since he never contacted her and she did not know about his actions when they occurred. For the reasons that follow, we reject Libersat’s arguments and affirm his conviction. 1 I. Libersat was previously convicted for stalking E.L. As a part of his probation for that conviction, he was placed on GPS monitoring and forbidden from going into certain “exclusion zones” surrounding E.L.’s home and place of employment. At E.L.’s request, the probation officer also added her father’s home and their child’s school as exclusion zones. In June 2018, Libersat triggered a GPS alarm by entering the exclusion zone near E.L.’s home. His ex-girlfriend, Kristen Gilley, testified at trial that she was out late with him on that occasion, and he directed her to drive to a specific street. His GPS alarm went off, and he told her it was because they drove by E.L.’s house. When his probation officer called to find out why the alarm was triggered, Libersat lied and said that he was the passenger in the backseat of a car and they were dropping off a friend. Gilley also testified that Libersat used fake accounts to search for E.L. on Facebook and then sent Gilley screenshots of photographs he found on E.L.’s Facebook page. In one screenshot, he saw a man standing in the background and became obsessed with identifying him because he thought it was someone E.L. was dating. Libersat once texted E.L.’s home address to Gilley and asked her to drive by that house and take a picture for him. On another occasion, he admitted to Gilley that he had driven by E.L.’s workplace and her father’s house. GPS data confirmed that he had driven by E.L.’s job many times, her father’s house at least twice, and their child’s school once. 1 We find no merit in Libersat’s other issue on appeal and decline to address it further. 2 After Libersat and Gilley broke up, she had to evict him from her apartment. At that time, Gilley contacted E.L. and told her how Libersat had been searching for her and spying on her. E.L. was terrified when she learned about what he had done. E.L. testified that Gilley had confirmed what she already assumed: that Libersat was trying to find her. After he contacted their son’s babysitter trying to find her, she changed her son’s school so Libersat would not know where he was. She also placed cameras throughout her house and changed jobs out of fear because of Libersat’s continued pursuit. Now she was terrified to go anywhere by herself or leave her house without protection. She admitted that she had not had contact with him since March 2018 and was unaware that he had driven by her house or her father’s house until Gilley contacted her. II. A trial court’s order denying a motion for judgment of acquittal is reviewed de novo. Dunn v. State, 206 So. 3d 802, 804 (Fla. 1st DCA 2016). “In moving for a judgment of acquittal, a defendant ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.’” Reynolds v. State, 934 So. 2d 1128, 1145 (Fla. 2006) (quoting Beasley v. State, 774 So. 2d 649, 657 (Fla. 2000)). Accordingly, “[i]f, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). The State charged Libersat with violating section 784.048(4), which defines aggravated stalking as: A person who, after an injunction for protection against . . . domestic violence pursuant to s. 741.30 . . . knowingly, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of aggravated stalking, a felony of the third degree. . . . 3 To prove a violation of section 784.048(4), the State needed to show: (1) Libersat knowingly, willfully, maliciously, and repeatedly followed, harassed, or cyberstalked E.L.; 2 (2) at the time of the following, harassing or cyberstalking, an injunction for protection against domestic violence had been entered against him for the benefit of E.L.; and (3) he knew the injunction had been entered against him. See Fla. Std. Jury Instr. (Crim.) 8.7(b). 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). And a “course of conduct” is “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” § 784.048(1)(b), Fla. Stat. (2018). “[S]talking is a series of actions that, when taken individually, may be perfectly legal.” Johnstone v. State, 298 So. 3d 660, 664 (Fla. 4th DCA 2020) (alteration in original) (quoting T.B. v. State, 990 So. 2d 651, 654 (Fla. 4th DCA 2008)). Libersat alleges there was insufficient evidence of the first element. He appears to make two related arguments. First, that he did not harass E.L. because he never contacted her, and second, that E.L. did not suffer substantial emotional distress because she did not know about his actions until Gilley told her about them months later. We reject both arguments. As to his claim that he did not harass E.L. because there was no contact, at least one appellate court in Florida has already rejected a similar argument. In Seitz v. State, 867 So. 2d 421 (Fla. 3d DCA 2004), the State alleged that the defendant stalked the victim by “publishing and disseminating pharmaceutical records of the victim to various persons. . . .” Id. at 422. The defendant argued that he did not stalk the victim because he did not have any direct or indirect contact with her. The Third District rejected that argument, noting that section 784.048 does not require contact, direct or indirect, with the victim as part of the offense of stalking. Id. at 422–23. We agree. Nothing in the plain language 2 The State did not allege that Libersat cyberstalked E.L., and we determine that he did not follow her. 4 of the statute supports Libersat’s argument that contact with the victim is a prerequisite to establish stalking. We also disagree with Libersat’s claim that any emotional distress must be suffered by the victim “contemporaneously” with the actions of the alleged stalker. For support, Libersat relies on Santiago v. Leon, 299 So. 3d 1114 (Fla. 3d DCA 2020). In that case, the defendant appealed an order imposing a stalking injunction against him in favor of M.L., a minor child. Id. at 1116. Santiago and M.L.’s father had a prior relationship during which M.L. was born using a surrogate. M.L., through his father, filed a petition for the injunction alleging that Santiago stalked him by (a) getting a tattoo of M.L.’s name on his body; (b) posting images of M.L. on his social media accounts and representing M.L. as Santiago’s son; (c) mailing packages to M.L.; (d) twice emailing the father to express love for M.L.; (e) contacting the father’s surrogate in search of information about M.L.; (f) appearing once outside the home of M.L. and his father; and (g) driving by a restaurant where M.L. and his father were dining, and making eye contact with both of them. Id. The Santiago court found that those actions were insufficient to show that he harassed M.L. as that term is defined in the stalking statute. Libersat relies on the court’s reasoning that “because the father testified unequivocally at the hearing below that M.L. was ‘totally unaware’ of Santiago’s conduct, there was no evidence that Santiago’s conduct had caused ‘substantial emotional distress’ to M.L. so as to constitute ‘harassment,’ as required by section 784.048(1)(a).” Id. at 1118. But the Santiago court did not hold that the victim must be contemporaneously aware of the harassment as it occurs. Instead, it appears M.L. never learned about any of Santiago’s actions. Here, in contrast, E.L. knew of all the actions directed toward her by Libersat after learning about them from K.G. Other persuasive caselaw suggests that the victim need not suffer substantial emotional distress at the same time as the stalker’s actions. For example, in Seitz, it can be presumed that the victim did not learn about the publication of her pharmaceutical records until after the initial recipients saw them. In Jones v. Jackson, 67 So. 3d 1203 (Fla. 2d DCA 2011), the court noted that statements from the alleged stalker to third parties suggesting he would do violence to the victim could be enough to constitute harassment by 5 indirect contact. Id. at 1203. 3 There, the victim would not hear those statements contemporaneously, as they would have to be reported to the victim later by the third parties. Finally, in Robertson v. Robertson, 164 So. 3d 87 (Fla. 4th DCA 2015), the court upheld an order imposing an injunction for protection against stalking on the victim’s ex-husband. The court held that the defendant’s actions of going to his ex-wife’s house three nights in a row, where security cameras recorded him shining a flashlight in the windows, were enough to show harassment as that term is defined in the stalking statute. Id. at 88. In Robertson, there was no indication that the victim was aware of the defendant’s conduct when it occurred. Rather, it appears she first discovered it while watching the recorded video footage or when he admitted it in an email he sent to her later on. We thus reject Libersat’s invitation to judicially engraft the requirements of “contact” and “contemporaneous distress” in the stalking statute. See Huch v. Marrs, 858 So. 2d 1202, 1204 (Fla. 3d DCA 2003) (“The stalking and repeat violence statutes are designed to protect victims, by ensuring that they do not have to be injured or threatened with death before they could stop a stalker’s harassment.”). Like the trial court, we focus instead on whether the evidence was sufficient to show that Libersat’s actions caused E.L. substantial emotional distress when she learned about them. III. When determining whether the victim suffered substantial emotional distress, the court applies a reasonable person standard, not a subjective standard. Shannon v. Smith, 278 So. 3d 173, 175 (Fla. 1st DCA 2019). Thus, E.L.’s testimony that she was terrified upon learning of Libersat’s actions is not dispositive. Libersat argues that his actions were no more distressing than those in 3 In Jones, the court reversed the order granting the injunction because the threats—which were not described in any detail by the opinion—would not cause a reasonable person to suffer substantial emotional distress. Id. at 1204. 6 Santiago, which the court held were not serious enough to cause a reasonable person to suffer substantial emotional distress. Yet the circumstances here are distinguishable from Santiago. Libersat was already on probation for stalking E.L. in the recent past. He continued pursuing her after a protective injunction was in place and despite being ordered by the court and his probation officer not to go near her. E.L. testified that she placed her child in a different school after she learned that Libersat had contacted her child’s babysitter to locate her. Her fear was so great that she also asked Libersat’s probation officer to include her father’s house and her child’s school in GPS exclusion zones. Given that history, a reasonable person in E.L.’s position would feel substantial emotional distress upon learning that her victimizer had (a) driven by her house late at night in violation of the injunction, (b) driven by her place of employment several times in violation of the injunction, (c) driven by her father’s house, (d) driven by her child’s school, (e) repeatedly searched for her on Facebook using fake identities and sent pictures captured from her Facebook account to third parties, and (f) asked a third party to drive by her house and take pictures. AFFIRMED. RAY, C.J., and M.K. THOMAS and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee. 7