DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SCOTT ALEXANDER JOHNSTONE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D21-1411

[September 30, 2022]

Appeal from the County Court for the Nineteenth Judicial Circuit, 

Okeechobee County; William Wallace, Judge; L.T. Case No. 

472018MM001209A.

Carey Haughwout, Public Defender, and Ross Frank Berlin, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy, 

Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

In the instant case, the trial court denied Appellant Scott Johnstone’s 

motion for judgment of acquittal (“JOA”) with respect to his conviction for 

misdemeanor stalking in violation of section 748.048, Florida Statutes 

(2017). Appellant presents two arguments on appeal. First, Appellant 

argues no competent substantial evidence supported his conviction 

beyond a reasonable doubt. Second, “if this Court does feel bound by its” 

opinion in Johnstone v. State, 298 So. 3d 660 (Fla. 4th DCA 2020)

(Johnstone I), and “concludes that [Johnstone I] prevents it from reversing 

here,” the Court should then, en banc, recede from Johnstone I.

A. Appellant’s Issue II

Addressing the second argument first, we agree that Johnstone I is not 

controlling for the disposition of this appeal. The instant case is 

distinguishable from Johnstone I, because the case before us involves: 
2

• a different judge/finder of fact (County Court Judge Wallace in 

the instant criminal stalking case, Circuit Court Judge Vaughn 

in the now-concluded violation of probation case (Johnstone I); 

• a different evidentiary record; 

• a different standard of proof for the trial court (“beyond a 

reasonable doubt” in the instant criminal stalking case, Humbert 

v. State, 933 So. 2d 726, 727 (Fla. 2d DCA 2006), rather than

“greater weight of the evidence” for the violation of probation 

case, Johnstone I, 298 So. 3d at 664); and

• a different standard of review (“de novo”) in the instant criminal 

stalking case, State v. Konegen, 18 So. 3d 697, 698 (Fla. 4th DCA 

2009), which is significantly less deferential than the standard of 

review which we applied in the violation of probation case (“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.” Johnstone I, 298 So. 3d at 664 (quoting Green v. 

State, 23 So. 3d 820, 821 (Fla. 4th DCA 2009))).

As we noted in Johnstone I, “[d]etermining 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.” Id. at 662. The 

“fine lines” here are drawn differently than in the violation of probation 

case. See, e.g., Morris v. State, 727 So. 2d 975, 977 (Fla. 5th DCA 1999) 

(“An acquittal in a criminal case does not preclude the judge from 

determining that a parole or probation violation has occurred based on the 

same conduct.”); Williams v. State, 573 So. 2d 124, 126-27 (Fla. 4th DCA 

1991) (evidence was sufficient to warrant revocation of probation but 

insufficient to sustain the conviction).

Because we conclude that a reversal in the instant case would not be 

inconsistent with the resolution of Johnstone I (we do not “feel bound” by 

that opinion), the condition precedent for Appellant’s request for en banc 

consideration of Johnstone I is not present. Moreover, this Court has 

previously, by order dated July 31, 2020, denied a motion for rehearing en 

banc of Johnstone I. En banc consideration of Johnstone I would be 

successive and contrary to the conditional nature of Appellant’s Issue II 

request.

B. Appellant’s Issue I

Contrary to Appellant’s first argument, after a careful consideration of 

the evidence presented, we determine that the State presented competent 
3

and substantial evidence in the misdemeanor criminal stalking trial heard 

before Judge Wallace to prove Appellant’s guilt beyond a reasonable doubt

for the charge of stalking in violation of section 748.048, Florida Statutes 

(2017).

Affirmed. 

CONNER and FORST, JJ., concur. 

ARTAU, J., dissents with an opinion.

ARTAU, J., dissenting.

I agree with the defendant’s request that we consider this case en banc

to recede from Johnstone v. State, 298 So. 3d 660 (Fla. 4th DCA 2020)

(holding that the defendant violated his probation by “stalking” his 

neighbors based on essentially the same conduct asserted in this case) 

(“Johnstone I”). I therefore respectfully dissent.1

Johnstone I and the majority’s affirmance of the defendant’s stalking 

conviction in this case (“Johnstone II”) misinterpret the stalking statute by 

overlooking the “substantial emotional distress” and “no legitimate 

purpose” guideposts provided by the statutory text while broadly defining 

the term “harass” to include almost anything that a neighbor finds 

annoying about another neighbor’s conduct. See § 784.048(1)(a), Fla. Stat. 

(2017); see also Johnstone I, 298 So. 3d at 666, 669 (Klingensmith, J., 

dissenting) (“this case provides yet another illustration of the misuse of the 

stalking and harassment statutes[],” [and gives a complaining neighbor] 

“veto power over their neighbor’s lawful but annoying behavior”).

By misinterpreting the stalking statute, Johnstone I and Johnstone II 

jeopardize the actions of law-abiding residents that may find themselves 

at odds with their neighbors such as a father helping his child with a 

backyard science experiment that causes a foul-smelling odor; a scantilydressed teenager taking an outdoor shower; a forgetful grandfather 

repeatedly placing garbage or debris in the wrong place; a mother using a 

lawnmower too early in the morning; a family enjoying their fire ring on a 

windy day; a grandmother taking pictures of wildlife she spots in her 

neighbor’s yard; an activist utilizing her fence to post her views; and a 

1 While I agree with the defendant’s request that we consider this case en banc 

to recede from Johnstone I, the proper procedure is for the defendant to file a 

motion for en banc review in the manner provided in Florida Rule of Appellate 

Procedure 9.331(d).
4

resident who curiously looks at a neighbor while on a break from clearing 

brush with a machete. 

 

Thus, Johnstone I and Johnstone II prohibit and criminalize legal acts 

on a resident’s property under the auspices of the harassment prong of 

the stalking statute simply because a neighbor finds the acts annoying. 

See id. at 666 (Klingensmith, J., dissenting) (“What the [Johnstone I] 

majority does . . . is ratify the use of this [stalking] statute to punish people 

for engaging in petty annoying behavior in the context of a neighborhood 

dispute.”). However, the Legislature did not include this type of peaceful 

conduct, even when it annoys a neighbor, in its proscription against 

stalking by harassment. Instead, the Legislature expressly excluded 

conduct that would not cause “substantial emotional distress” or has some

“legitimate purpose.” See § 784.048(1)(a), Fla. Stat. (2017).

 

Moreover, even if the stalking statute was arguably susceptible to 

differing constructions, the rule of lenity requires us to “strictly” construe 

the statute “most favorably to the accused” so as not to criminalize conduct 

that is not, in and of itself, criminal. § 775.021(1), Fla. Stat. (2017) (“The 

provisions of this code and offenses defined by other statutes shall be 

strictly construed; when the language is susceptible of differing 

constructions, it shall be construed most favorably to the accused.”).

 

Background

At the non-jury criminal trial in this case, the State presented evidence 

establishing that the defendant owned and lived on roughly six-and-a-half 

acres of residential property in a rural Okeechobee County neighborhood. 

The defendant’s property lies adjacent to and south of a similarly sized 

parcel his neighbors own. A dirt access road on a shared easement, having 

the width of a single car, runs between the two properties.

Despite the undisputed fact that both the defendant and his neighbors 

have an equal legal right to use the access road, the testimony reflects that 

the neighbors would incorrectly refer to it as their “private driveway” and 

were annoyed whenever the defendant used it.

The access road is the neighbors’ only means of ingress and egress to 

their parcel because their property does not permit direct access to the 

public road which runs perpendicular to the access road along the 

southern edge of both their property and the defendant’s property. 

The defendant, however, has direct access to the public road from his 

driveway along the southern edge of his property. Thus, the neighbors feel 
5

they should have the right to use the access road as their “private 

driveway” to the exclusion of the defendant. Even though the defendant 

does not require the access road to enter his property, he still has an equal 

right to use it as a shared easement. 

After the relationship between the neighbors and the defendant soured, 

the defendant began to annoy the neighbors who resorted to calling law 

enforcement, the fire department, and code enforcement to complain about 

the defendant numerous times. Additionally, after the neighbors 

discovered that the defendant had been placed on probation for an 

unrelated matter, they called the defendant’s probation officer to complain 

about the defendant.

The State’s proof established that the defendant annoyed his neighbors 

by engaging in the following acts:

• placing barbed wire on the top of his fence facing the neighbors’

property accompanied by “Keep Out” signs;

• hanging empty bags and other trash off his fence;

• displaying signs on his fence containing profanity and a clown face 

with an arrow pointing in the direction of the neighbors’ property 

captioned: “Stupid People Live Here”;

• breaking up rock from the clean-out of his pond and allowing some 

of the broken rock to scatter on the easement road (though the 

record does not reflect that the access road was ever blocked to 

vehicular access due to the scattered rocks, or that any vehicles 

were damaged by any of the rocks);

• dragging garbage, trees, rocks, large chunks of concrete, and other 

debris from his property, and disposing of it on the edge of the public 

road near the neighbors’ mailbox;

• building a “duck blind” (also referred to in the testimony as a 

“carport”) in the northeast corner of his property, and ultimately 

throwing its dismantled parts on his property in a ditch along his 

fence line nearest the neighbors’ property;

• pouring a mixture of what the neighbors described as some sort of 

unidentified substance that smelled like urine, feces, and oil on the 

ground in the northeast corner of his property such that foul smells 

wafted in the direction of the neighbors’ property;
6

• burning garbage in the northeast corner of his property, when the 

summertime wind blew toward the neighbors’ property, and running 

over the burning garbage with his lawnmower causing the scattering 

of smoldering ashes;

• parking a running lawnmower in the southeast corner of his 

property at 7:00 a.m. on Christmas day;

• walking his dog down the shared easement past the neighbors’ front 

yard without acknowledging or responding to one of the neighbor’s 

as he called out: “You know, hey, can I help you? What are you 

doing?”;

• showering outside on the back porch of his property while wearing 

only his underwear (though no one testified that he ever exposed

himself while taking outdoor showers);

 

• staring at the neighbors and their house from his property;

• standing on the corner of his property while holding a machete and 

staring at one of the neighbors as her vehicle entered the access road

(though no one testified that he ever threatened the neighbor or 

anyone else with the machete he was carrying during this or any 

other incident); and

• filming or taking pictures of the neighbors and their property.

After denying the defendant’s motion for judgment of acquittal, the trial 

court ultimately found the defendant guilty of stalking his neighbors 

without specifying what conduct established his guilt beyond a reasonable 

doubt.

Analysis

A person commits the misdemeanor offense of stalking if he or she 

“willfully, maliciously, and repeatedly follows, harasses, or cyberstalks 

another person.” § 784.048(2), Fla. Stat. (2017). As used in this statute, 

the term “‘[h]arass’ 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. (2017)

(emphasis added); see also Cash v. Gagnon, 306 So. 3d 106, 110 (Fla. 4th 

DCA 2020) (explaining that “[t]he course of conduct must serve no 

legitimate purpose” and “must cause substantial emotional distress, 

which is greater than just an ordinary feeling of distress” (alterations in 
7

original) (quoting Johnstone I, 298 So. 3d at 664-65)).

The statutory phrase “‘[c]ourse of conduct’ means 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 

constitutionally protected activity such as picketing or other organized 

protests.” § 784.048(1)(b), Fla. Stat. (2017) (emphasis added).

Therefore, the signs and other forms of constitutionally protected 

expression displayed on the defendant’s fence cannot constitute any of the 

incidents of harassment or stalking necessary to support the defendant’s 

conviction. See, e.g., David v. Textor, 189 So. 3d 871, 876 (Fla. 4th DCA 

2016) (“[A] ‘course of conduct’ for purposes of the statute does not include 

protected speech. This includes speech that may be offensive or 

vituperative.” (citations omitted)).

As defined in the charging statute, the State was required to prove at 

least two or more incidents, each of which would constitute harassment

or stalking. See, e.g., Cash, 306 So. 3d at 109 (“A course of conduct 

requires multiple acts that are separated by time or distance.” (citing Levy 

v. Jacobs, 69 So. 3d 403, 405 (Fla. 4th DCA 2011)). Thus, the statutory 

text excludes any interpretation aggregating multiple incidents that, in 

and of themselves, would not constitute harassment or stalking. 

Even if one of the isolated acts listed above arguably sufficed as a 

qualifying incident under the statute, the State’s proof would still have 

been insufficient to constitute the “[c]ourse of conduct” necessary to 

support the defendant’s conviction because the statute requires multiple 

qualifying acts “willfully, maliciously, and repeatedly” directed against the 

neighbors in “a series of acts over a period of time.” See § 784.048(1)(a), 

(b), Fla. Stat. (2017).

An important guidepost included in the stalking statute which was

overlooked by the majority in Johnstone I and here again in Johnstone II is 

the requirement that the harassing course of conduct cause “substantial 

emotional distress.” See § 784.048(1)(a), Fla. Stat. (2017). “In determining 

if an incident causes substantial emotional distress, courts use a 

reasonable person standard, not a subjective standard.” Slack v. Kling, 

959 So. 2d 425, 426 (Fla. 2d DCA 2007) (citations omitted); see also, e.g.,

Venn v. Fowlkes, 257 So. 3d 622, 624 (Fla. 1st DCA 2018) (“[A] reasonable 

person does not suffer substantial emotional distress easily.” (citation 

omitted)); Mitchell v. Brogden, 249 So. 3d 781, 782 (Fla. 1st DCA 2018) 

(adopting an objective, reasonable person standard for the existence of 

“substantial emotional distress”).
8

The State failed to present any competent and substantial evidence to 

establish that two or more of the incidents directed at either neighbor 

would have caused substantial emotional distress to a reasonable person 

under the objective standard which we are required to apply.

Although one of the neighbors testified that she was “horrified” when 

she saw the defendant stare at her from the corner of his property while 

holding a machete as she was turning her vehicle onto the access road, 

the absence of any overt threatening action with the machete—which has 

a legitimate use to clear brush and perform other landscaping tasks—

should not cause a reasonable person to suffer substantial emotional 

distress. Compare Paulson v. Rankart, 251 So. 3d 986, 988-90 (Fla. 1st 

DCA 2018) (repeatedly staring at neighbor while she sunbathed, together 

with other complaints of creeping around her property, was not stalking 

without evidence that the staring was accompanied by any statements or 

gestures evidencing a threat), Baruti v. Vingle, 343 So. 3d 150, 151-52 (Fla. 

5th DCA 2022) (concluding that a “mean stare” by an estranged wife who 

came to the workplace of her husband’s paramour to interrupt her while 

she worked and make her feel “uncomfortable” was insufficient to

“constitute substantial emotional distress”), and Caterino v. Torello, 276 

So. 3d 88, 90-94 (Fla. 2d DCA 2019) (staring at neighbor whenever she 

went outside, including one stare described as looking at her “like she 

absolutely wants to kill” her, was insufficient to constitute substantial 

emotional distress for stalking), with Robertson v. Robertson, 164 So. 3d 

87, 88 (Fla. 4th DCA 2015) (entering another’s residential property “in the 

middle of the night, uninvited and without warning, and look[ing] inside 

her darkened windows with a flashlight” for three consecutive nights was 

sufficient to constitute a course of conduct capable of causing substantial 

emotional distress in a reasonable person).

While the neighbors may have been irritated, annoyed, and aggravated

by the defendant’s actions, “[m]ere irritation, annoyance, embarrassment, 

exasperation, aggravation, and frustration, without more, does not equate 

to ‘substantial emotional distress.’” Cash, 306 So. 3d at 110 (quoting 

Johnstone I, 298 So. 3d at 669 (Klingensmith, J., dissenting)); see also

Klenk v. Ransom, 270 So. 3d 1272, 1273 (Fla. 1st DCA 2019) (“It is not 

enough to be ‘weirded out’ or uncomfortable.” (citation omitted)).

Furthermore, while littering, noise violations, noxious odors, burns,

and improper disposal of garbage or debris might constitute a nuisance, 

the defendant was not charged with a nuisance violation under chapter 

823, Florida Statutes (2017), or any other laws prohibiting such actions.

Nothing in the stalking statute prevents nuisances from occurring on 
9

or around one’s property. See, e.g., Sinopoli v. Clark, 290 So. 3d 159, 160-

64 (Fla. 2d DCA 2020) (holding that a nuisance action, rather than a 

petition for protection against stalking, was the proper forum to address 

neighbor’s shredding of the screen cage around his pool, placement of a 

floodlight on his property facing directly into his neighbor’s backyard and 

her outdoor shower, and “nocturnal cutting of the shrubbery” because 

mere nuisances cannot cause the requisite “substantial emotional

distress” for stalking); Klemple v. Gagliano, 197 So. 3d 1283, 1284-86 (Fla. 

4th DCA 2016) (concluding that “tit-for-tat” conduct which included 

cutting the neighbor’s cable wire, throwing some sort of unidentified 

chemicals on neighbor’s car, closing the windows on a shared catwalk to 

frustrate the neighbor’s effort to keep them open, and occupying the 

neighbor’s parking spot, did not constitute stalking); Richards v. Gonzalez, 

178 So. 3d 451, 452-54 (Fla. 3d DCA 2015) (engaging in nuisance-type 

conduct toward neighbor—which included running a loud pressure 

cleaner to disrupt neighbor as she was entertaining guests, engaging in 

noisy behavior on his property, tossing an empty plastic water bottle 

towards neighbor’s car, and throwing garbage onto neighbor’s property—

were insufficient to constitute stalking).

Section 934.03(1)(a), Florida Statutes (2017), prohibits the intercepting 

or recording of oral communications under certain circumstances as 

defined in section 934.02(2), Florida Statutes (2017), but the defendant 

was not charged with intercepting oral communications. Instead, the 

State’s proof only established that he simply filmed or photographed what 

could be publicly seen from his property. 

Nothing in the stalking statute prevents the filming or photographing 

of what can be publicly seen from one’s property. See, e.g., Caterino, 276 

So. 3d at 90-94 (repeatedly videotaping and photographing neighbor 

whenever she went outside was insufficient to constitute stalking). 

Otherwise, many residential homeowners would be required to remove

their exterior security cameras which not only record activity outside their 

home, but also outside their neighbors’ homes. Indeed, if filming what can 

be publicly seen from one’s property constituted stalking, the neighbors 

here also could have been charged with stalking for utilizing their security 

cameras to film the defendant numerous times.

Another important guidepost included in the stalking statute which

was overlooked by the majority in Johnstone I and here again in Johnstone 

II is the requirement that the State prove the defendant had “no legitimate 

purpose” for any of the qualifying acts directed at either neighbor. See §

784.048(1)(a), Fla. Stat. (2017). The defendant here was cleaning out his 

property; breaking-up rock from a clean-out of his pond; constructing a 
10

carport; performing maintenance; conducting landscaping and gardening

tasks; disposing of garbage, trees, rock, concrete, and other debris;

showering to cleanse himself; burning garbage to eliminate it; utilizing a 

machete to cut brush and trees; running a lawnmower on his rural 

property; taking videos or pictures to document what he could publicly 

see; viewing his surroundings; and walking his dog. Because each of those 

actions have some legitimate purpose, they cannot support a charge of 

stalking under the plain language of the stalking statute.

In addition, the rule of lenity, as codified in section 775.021(1), Florida 

Statutes (2017), requires that we resolve any differing constructions “most 

favorably to the accused.” Id. In doing so, we must be cognizant of a 

property holder’s fundamental right to freely use his or her property 

without unintended exposure to criminal sanctions. See Corn v. State, 332 

So. 2d 4, 7 (Fla. 1976) (“The right of property has been characterized as a 

sacred right, the protection of which is an important object of 

government.”).

Thus, a reasonable construction of the term “no legitimate purpose” 

prevents application of the stalking statute to criminalize the lawful use 

and occupation of property despite a neighbor’s exasperation with any 

discourteous, impolite, disrespectful, or boorish conduct associated with 

its use and occupation. See Beckman v. Marshall, 85 So. 2d 552, 555 (Fla. 

1956) (“There are many acts which the owner of land may lawfully do, 

although it brings annoyance, discomfort, or injury to his neighbor, which 

are damnum absque injuria.” (quoting Antonik v. Chamberlain, 78 N.E.2d 

752, 759 (Ohio Ct. App. 1947))).2

Accordingly, it is my considered judgment that this court should recede 

en banc from Johnstone I and reverse here in Johnstone II because 

anything less exacerbates the intra-district conflict in our decisional law 

interpreting the stalking statute.3 Compare Sutton v. Fowler, 332 So. 3d 

1001, 1002, 1006 (Fla. 4th DCA 2021) (yelling of obscenities by upstairs 

condominium resident, directed toward downstairs resident, as well as 

“screaming and yelling and howling like a wolf” on both his balcony and 

2 Damnum absque injuria is defined as: “Loss, hurt, or harm without injury in 

the legal sense, that is, without such breach of duty as is redressible by an action. 

A loss which does not give rise to an action for damages against the person 

causing it.” Black’s Law Dictionary (4th ed. 1968).

 

3 Contrary to the majority’s assertion, a motion for en banc review to recede 

from Johnstone I in this case would not be “successive,” as it would be the first 

such motion filed in the instant direct appeal.
11

inside his residence, were insufficient to constitute stalking), Cash, 306 

So. 3d at 109-10 (engaging in uncivil conduct toward fellow condominium 

resident—which included three separate confrontational encounters 

involving verbal hostility, yelling, cursing, and the revving of a car engine—

constituted only an “uncomfortable neighborly dispute[] that d[id] not rise 

to the level of stalking” (citation omitted)), and Klemple, 197 So. 3d at 

1284-86 (concluding that “tit for tat” conduct which included cutting the 

neighbor’s cable wire, throwing some sort of unidentified chemicals on 

neighbor’s car, closing the windows on a shared catwalk to frustrate the 

neighbor’s effort to keep them open, verbal threats, name-calling, and 

waiting for the neighbor in his parking spot did not constitute stalking), 

with Johnstone I, 298 So. 3d at 660-66 (holding that the defendant violated 

his probation by “stalking” his neighbor based on essentially the same 

conduct asserted here in Johnstone II). 

Moreover, if we do not recede en banc from Johnstone I and reverse here 

in Johnstone II, we will continue to exacerbate the inter-district conflict 

between Johnstone I and the decisional law interpreting the stalking 

statute from our sister courts. Compare Baruti, 343 So. 3d at 151-52

(concluding that interruptions at the workplace together with a “mean 

stare” did not constitute the requisite “substantial emotional distress” for 

stalking), Laquidara v. Houghtaling, 320 So. 3d 243, 244-45 (Fla. 2d DCA 

2021) (yelling, screaming, and “hurling profanities” by business owner at 

his neighboring business owner over the use of an easement, with 

accompanying conduct designed to disrupt the business operations, did 

not constitute stalking), Sinopoli, 290 So. 3d at 160-64 (holding that 

repeatedly staring at complaining neighbor from the porch next door, 

shredding of the screen cage around his pool, placement of a floodlight on 

his property facing directly into his complaining neighbor’s backyard and 

her outdoor shower, and his “nocturnal cutting of shrubbery” were mere 

nuisances that did not constitute the requisite “substantial emotional 

distress” for stalking), Shannon v. Smith, 278 So. 3d 173, 174-76 (Fla. 1st 

DCA 2019) (removing, throwing, and defacing of neighborhood signs, as 

well as verbal yelling of profanities at his neighbor, including at a 

homeowners’ association meeting, did not constitute stalking), Caterino, 

276 So. 3d at 90-94 (videotaping and photographing neighbor, threatening 

comments, and staring whenever she went outside, including one stare 

described as looking at her “like she absolutely wants to kill” her, were 

insufficient to constitute substantial emotional distress for stalking), Stone 

v. McMillian, 270 So. 3d 510, 511-13 (Fla. 1st DCA 2019) (concluding that 

repeatedly walking past a complaining neighbor’s house, leaving dog waste 

in her trash can, stepping onto her driveway, and revving of his vehicle 

“too loud and for too long” were insufficient to constitute stalking),

Paulson, 251 So. 3d at 988-90 (holding that creeping conduct which 
12

included repeatedly staring at his next-door neighbor from his side deck 

when she sunbathed was not stalking where there was no evidence he

made any accompanying statements or gestures evidencing a threat),

Richards, 178 So. 3d at 452-54 (engaging in nuisance-type conduct toward 

neighbor—which included staring at the neighbor and her guests, running 

a loud pressure cleaner to disrupt her as she was entertaining guests, 

engaging in noisy behavior on his property, tossing an empty plastic water 

bottle towards her car, throwing garbage onto her property, and “laughing 

and taunting her”—were insufficient to constitute stalking), and Power v. 

Boyle, 60 So. 3d 496, 497-99 (Fla. 1st DCA 2011) (yelling of obscenities to 

her neighbor, “flipping off” neighbor’s home, allowing her pet to urinate on 

neighbor’s garage door, and writing profane notes on the neighbor’s 

misdelivered mail did not amount to stalking), with Johnstone I, 298 So. 

3d at 660-66 (holding that the defendant violated his probation by 

“stalking” his neighbor based on essentially the same conduct asserted 

here in Johnstone II). 

Conclusion

As we explained in Sutton, these incidents, “while disturbing, merely 

involved strange behavior” that “on an objective level would not cause 

substantial emotional distress in a reasonable person.” 332 So. 3d at 1006

(citing Cash, 306 So. 3d at 110). Simply put, the stalking statute is not 

an elixir to solve a myriad of disputes “between parties who, for whatever 

reason, are unable to get along and behave civilly towards each other.” 

Power, 60 So. 3d at 498 (citation omitted).

Therefore, I respectfully dissent and would urge my colleagues to recede 

en banc from Johnstone I and reverse the defendant’s stalking conviction

here in Johnstone II. 

* * *

Not final until disposition of timely filed motion for rehearing.