The statute we are dealing with is the stalking statute. This assignment shares many similarities to the previous assignments, but there are differences worth noting. The first difference is that this problem will be the first time I am asking you to assume a role; specifically, as a prosecutor. The previous 3 exercises, I did not specify which side you were on. If you chose a perspective to argue (either prosecution or defense), you did that subconsciously. Admittedly, if you did not pick a side, that opened up the possibility of arguing both sides of the problem. For example, you could have argued the defendant's culpability under the statute from a prosecutor's perspective and then address the defendant's defenses or counterarguments. Arguing the defenses or counterarguments is generally a good thing, when completeness is the goal. However, in the future, the goal may be different. Here, you are specifically being asked to take the role of the prosecutor and to predict what the defense will argue. In reality that may not actually change how you write since you still have to address whether the defendant's actions rise to the level of stalking under the statutes.

Next, just like the other exercises, you will find both handouts for the statutes, related case law, as well as a charging affidavit which contains the facts for the problem. In the previous 3 Analysis Exercises the facts took the form of a simple paragraph given to you in the same handout as the statutes. For this assignment, the facts will take the form of a Charging Affidavit. Treat it like any of the other set of facts -- don't be thrown-off by the charging affidavit-appearance of the handout. IRAC is still the key here, and is no different from the previous 3 analysis exercises. As usual, DO NOT use or cite any outside sources.

This problem uses cases -- like the last problem. In the cases, the court speaks in general terms about stalking. Note, occasionally the court cites another statute -- different from the statute you have been given. Note, when the cases discuss a different statute dealing with injunctions, that other statute is not what we are dealing with in this case. More specially -- It would be best to stay away from any part of the case that focuses on the definition of "repeat violence" under 784.046. By contrast, the parts of the cases that generally discuss what stalking is and what it is not, may he helpful for your analysis.

The same formatting and citation requirements as the last analysis exercise assignment are also being used for this assignment.

DO NOT put off reading the problem and the related law for this problem. Writing out your response can take some time. Be careful with your time.

Good luck.

Analysis Exercise #4, Stalking Below you will find the relevant statutes and definitions related to the stalking charging affidavit involving the defendant, Danny and the victim, Victor. You are a prosecutor in this case. Address which (if any) form of stalking you intend to charge in this case based on the statutes and cases law. The case law and the charging affidavit are in separate handouts in the Files Tab. In your response please address the potential defense arguments you predict will be argued if this case were to go to trial. How would the defense argue these statutes in the context of the facts and case law to show Danny is not guilty here? Good luck. 8.7(a) AGGRAVATED STALKING 784.048(3), Fla. Stat. To prove the crime of Aggravated Stalking, the State must prove the following two elements beyond a reasonable doubt: 1. 1. (Defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim); and 1, 2. (Defendant) made a credible threat to (victim). Definitions. 784.048(1)(a), Fla. Stat. \"Harass\" 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)(b), Fla. Stat. \"Course 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. The term does not include constitutionally protected activity such as picketing or other organized protests. Patterson v. State, 512 So. 2d 1109 (Fla. 1** DCA 1987). \"Willfully\" means knowingly, intentionally and purposely. 784.048(1)(c), Fla. Stat. \"Credible threat\" means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary for the State to prove that the person making the threat had the actual intent to carry out the threat. 8.6 STALKING 784.048(2), Fla. Stat. To prove the crime of Stalking, the State must prove the following element beyond a reasonable doubt: (Defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim). Definitions. 784.048(1)(a), Fla. Stat. \"Harass\" 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)(b), Fla. Stat. \"Course 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. The term does not include constitutionally protected activity such as picketing or other organized protests. Patterson v. State, 512 So. 2d 1109 (Fla. 1** DCA 1987). \"Willfully\" means knowingly, intentionally and purposely. Orange County Charging Affidavit Page 1 of _> Location of Date-Time Case Defendant's Vehicle: Booked Number: (ORI) FLO48: III Agency Name: OCSO Division Court Case Number: Number: Time o Arrested: Yes No FCIC/NCIC Check? Yes No O Date Arrested: (MM-DD-YYYY): Arrest: Address of Arrest: > Total Bond Set At: $> DEFENDANT Adult Juvenile Jacket anguage Number: Number: Spoken: > NAME: (L,F,M): >Defendant, Danny Race: W Sex: M DOB: 02/01/1994 Age: 22 RES. Pre-Dir: Street Name: Road Designator: Post-Dir.: Apt./Suite: Street#: 789 Former Lovers Lane Street City: Orlandp State: FL Zip: 3280 Home Phone: > Height: > Weight: > Hair: > Eyes: > P.O.B. (City, State, County): > Business & Occupation: > A. K. A.: > Bus./Scho Pre-Dir: Street Name: Road Designator: Post-Dir.: Apt./Suite: Street# > City: > State: > Zip: > Home Phone: Driver's Lic./State | State: > Year Expires: > S.S.#: > CHARGES DOMESTIC FELONYO MISD. ORD. O TRAFFIC O Court Location: VIOLENCE? YES O NO O #1 Charge: Agg. Stalking with Credible threat FSS/ORD..: 784 Citation No.: > #2 Charge: FSS/ORD..: Citation No.: > #3 Charge: FSS/ORD..: Citation No.: > CO-DEFENDANT Co-Def #1 : Arrested Y D N . Fel. ( Misd. [ Traf. D Ord. D NTA |Co-Def #2: Arrested Y D N D Fel. [ Misd. [ Traf. [ Ord. O NTA #1 NAME: (L,F,M): Race: > Sex: > DOB: > Age: > #2 NAME: (L,F,M) Race: > Sex: > DOB: > Age: > NARRATIVE The undersigned has probable cause to believe the above-named defendant in Orange County did: Commit the crimes above. On March 1, 2014 Victor Victim was driving down west on Colonial Blvd. Victor was stopped at the Orange Ave intersection. While sitting at the red light, Victor noticed a car coming from his rear at a high rate of speed. The car then stopped suddenly before colliding with Victor's car. Victor looked at the car and recognized it as a car driven by his current girlfriend's ex-boyfriend, Danny Defendant. Victor then also noticed Danny was behind the wheel and looked agitated.Sworn to and subscribed before me, | swear/affirm the above statements are correct and true: this day of >Deputy Jimmy James Notary Public O Law Enforcement or Corrections Officer O OFFICER'S SIGNATURE OFFICER'S PRINTED NAME (L,F) Personally Known 0O Produced Identification O Officer's Name Key: Officer's Bus. Phone No.: (407)836-> Complaint/Incident Report Charging Affidavit Continuation of: Notice to Appear Defendant Name: Danny Defendant 'Case Number: > Page 2 of 2 When the light turned green, Victor continued west and Danny followed. Victor then turned left on OBT heading south again Danny followed him. Once on OBT, Victor tried to speed up but Danny kept up. This went on for several blocks. At the Michigan Street intersection Victor stopped for a red light. Danny was behind Victor and ran into the rear of Victor's car. Danny was not injured. Danny got out of the car and so did Victor. They argued about the crash. Victor called police. I arrived and they were still arguing. I separated Danny and Victor and talked to them in turn. I talked to Danny first. Danny seemed agitated but calm. Danny told me he didn't mean to run into Victor's car and said this \"was just a simple fender-bender.\" I then talked to Victor. Victor says Danny had been following him for several blocks. Victor also described the near-accident on Orange Avenue just a few minutes before the actual accident. Victor continued and also said that Danny is actually his current girlfriend's ex-boyfriend. Victor claims Danny has threatened him and also called him a few times to harass him. Victor also told me he called Danny to tell him to leave him alone. I learned from Victor that he and his girlfriend, Gloria, started dating in October 2013. During this time, Victor met Danny the first time at a holiday gathering Victor and Gloria attended in December. Victor recalls Danny not being very pleased that he was now dating Gloria. Victor was told Danny and Gloria had ended their relationship in the spring of 2013. At the party, Danny had been drinking and made a threat to both Victor and Gloria. Victor recalls Danny telling them \"he was gonna get them\" at some point. For about 3 weeks in February 2014, Victor say he has been getting calls from Danny on his cell. He is not sure how Danny got his number. Victor says he received at least 3 calls over the last few weeks. On one occasion Danny left a voicemail that said, \"Hey Victor You're dating my girlfriend....where's Gloria? I promise I will find the both of you.\" The other 2 calls, Danny did not leave a message but were from the same number as the other call where Danny left the message. Victor asked Gloria to call Danny and tell him to leave him alone. Gloria told him she didn't want to talk to him but that he eomld eall Nannv himeelf if he wanted and eave him Nannv'e nhane nimher Vietar called Nannv a connle *was Just a simple fender-bender.\" I then talked to Victor. Victor says Danny had been following him for several blocks. Victor also described the near-accident on Orange Avenue just a few minutes before the actual accident. Victor continued and also said that Danny is actually his current girlfriend's ex-boyfriend. Victor claims Danny has threatened him and also called him a few times to harass him. Victor also told me he called Danny to tell him to leave him alone. I learned from Victor that he and his girlfriend, Gloria, started dating in October 2013. During this time, Victor met Danny the first time at a holiday gathering Victor and Gloria attended in December. Victor recalls Danny not being very pleased that he was now dating Gloria. Victor was told Danny and Gloria had ended their relationship in the spring of 2013. At the party, Danny had been drinking and made a threat to both Victor and Gloria. Victor recalls Danny telling them \"he was gonna get them\" at some point. For about 3 weeks in February 2014, Victor say he has been getting calls from Danny on his cell. He is not sure how Danny got his number. Victor says he received at least 3 calls over the last few weeks. On one occasion Danny left a voicemail that said, \"Hey Victor You're dating my girlfriend....where's Gloria? I promise I will find the both of you.\" The other 2 calls, Danny did not leave a message but were from the same number as the other call where Danny left the message. Victor asked Gloria to call Danny and tell him to leave him alone. Gloria told him she didn't want to talk to him but that he could call Danny himself if he wanted and gave him Danny's phone number. Victor called Danny a couple times to tell him to leave him alone. I then talked to Danny and he did acknowledge that Victor is dating his ex-girlfriend but he didn't care. He says he did call Victor \"once or twice\" but was only looking for Gloria, his ex-girlfriend since she still has some of his things. After talking with both Danny and Victor I arrested Danny for Aggravated Stalking with a Credible Threat. Sworn to and subscribed before me, | swear/affirm the above statements are correct and true: this day of > 2:::}::'::2?\"'\" D\"\";E;LZ::::'Z:L:L;EEEM"S Officer 0 | S EFICER'S SIGNATURE OFFICER'S PRINTED NAME (L.F) Officer's Name Key: Officer''s Bus. Phone No.: (407)836-> Type of Identification: COURT COPY Westlaw: 959 S0.2d 425 959 S0.2d 425, 32 Fla. L. Weekly D1581 (Cite as: 959 S0.2d 425) CSlack v. Kling Fla.App, 2 Dist.,2007. District Court of Appeal of Florida,Second District. Bruce SLACK, Appellant, v. Jean-Michel KLING, Appellee. No, 2D06-3355, June 27, 2007. Background: Purported stalking victim sought injunction for protection against repeat violence, The Circuit Court, Collier County, Dwight Geiger, Associate Senior Judge, granted injunction, and respondent appealed. Reversed. Fulmer, Chief Judge, filed concurring opinion, West Headnotes *425 Jana Jay Malen, Naples, for Appellant. No appearance for Appeliee. WHATLEY, Judge. Bruce Slack appeals a final judgment of injunction for protection against repeat violence. He contends that there was no evidence establishing acts of repeat violence as defined in section 784.046, Florida Statutes (1997). We agree and reverse. {1iSection 784.046 provides that & person may obtain an injunction for protection in cases involving repeat violence. Repeat violence is defined as two incidents of stalking or violence,!' 784.046(1). A person commits the act of stalking when they \"willfully, maliciously, and repeatedly\" follow or harass another person. 784 048(2), Fla, Stat. (2006). The term \"hacass\" is *426 defined in section 784.048(1) as engaging in a series of acts over a period of time \"directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.\" In determining if an incident causes substantial emotional distress, courts use a reasonable person standard, not a subjective standard. Roviteh v. Whelan 851 So.2d 271, 273 (Fla. 5th DCA 2003); McMath v. Biernucki, Page | 776 So,2d 1039, 1040 {Fla, st DCA 2001 EN]1. There were no allegations that Slack committed an act of violence. {2] In the present case, Kling testified regarding two phone calls he received from Slack which served no legitimate purpose. Kling testified that on February 25, 2006, and June 15, 2006, Slack left a voice message slating that if Kling did not stay away from Slack's wife, Slack would make an \"arrangement,\" We conclude that nothing in the record demonstrates any basis for finding that a reasonable person would suffer \"substantial emotional distress\" from these two phone messages. Therefore, the trial court erred in granting the injunction, FN2. Siack denied making these statements to Kling. Reversed. CASANUEVA, 1., concurs. EULMER, C.J., concurs with opinion.FULMER, Chief Judge, concurting, I agree that the trial court erred in granting the injunction. At the hearing on the petition, Kling's teslimony encompassed more than the two voice messages described in the majority opinion. However, at the conclusion of the hearing, the trial court announced, \"I do find that the two acts do meet the terms and conditions of stalking. 1 do order the injunction.\" No further explanation of the ruling was given, A review of the hearing transcript makes clear that the two acts referred to are the two voice messages described in the majority opinion. It is, therefore, unnecessary to discuss the other testimony presented, which, in any event, does not provide a sufficient basis for the issuance of an injunction. In my view, the trial court erred because a single voice message does mot mect the definition of stalking, two incidents of which are required for issuance of an injunction for repeat violence. The definition - of stalking requires that a person \"willfully, maliciously, and repeatedly follow [ ], harass | }, or cybersialk [ ) another person." 784.048(2), Fla, Stat. (2006). Kling does not atlege 2008 Thomson/West, No Claim to Orig, U.S, Govt. Works. 959 So.2d 425 Page 2 959 So.2d 425, 32 Fla. L. Weekly D1581 (Cite as: 959 So.2d 425) that he was followed or cyberstalked by Slack. The definition of harass requires that a person engage in a course of conduct involving a series of acts over a period of time. $ 784.048(D)(a). (b). A single voice message is not a course of conduct. Cf. Poindexter v. Springer. 898 So.2d 204, 207 (Fla. 2d DCA 2005) (concluding that the act of mailing three letters in one envelope was insufficient to establish a course of conduct); Dudley v. Smith. 786 So.2d 630, 631 (Fla. Sth DCA 2001) (concluding that at least four incidents of harassment are required before an injunction for repeat violence may be entered). Because Kling failed to allege and prove two separate incidents of stalking, I agree that the Final Judgment should be reversed. Fla.App. 2 Dist., 2007. Slack v. Kling 959 So.2d 425, 32 Fla. L. Weekly D1581 END OF DOCUMENTWestlaw. 917 So.2d 252 Page ] 917 So.2d 252, 30 Fla. L. Weekly D2824 (Cite as: 917 So.2d 252) Cortola v. Alfonso is defined in section 784.046(1)(a) as "assault, p. 3 Dist.,2005. aggravated*253 assault, battery, ... sexual assault, ... stalking, ... or any criminal offense resulting in District Court of Appeal of Florida, Third District. physical injury or death, by a person against any other Jose ORTOLA, Appellant, person."g 784.046(1)(a), Fla. Stat. (2004) (emphasis added). Mirtha ALFONSO, Appellee. No. 3D04-1895. In the instant case, the Record is clear that a battery, or a "sexual assault," as termed by the trial Dec. 14, 2005. court, occurred, constituting the first "violent" incident. In light of the facts before the Court, the Background: Repeat-violence injunction was second "violent" incident must be a stalking. placed against defendant in the Circuit Court, Miami-DadeCounty, Cristina Pereyra-Shuminer, J. Pursuant to section 784.048(2), "[any person Defendant appealed. who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the Affirmed offense of stalking...."$ 784.048(2). Fla. Stat. (2004). "Harass" is defined as: "engaging] in a course of *252 Markowitz, Davis, Ringel & Trusty, Miami, and conduct directed at a specific person that causes Michaelle Paulson, for appellant. substantial emotional distress in such person and serves no legitimate purpose."$ 784,048(1)(a). Fla. Mirtha Alfonso, in proper person. Stat. (2004). Moreover, " 'Course of conduct' means a pattern of conduct composed of a series of acts over a Before LEVY, C.J., and GERSTEN and FLETCHER, period of time, however short. evidenceng a continuity 3J. of purpose."$ 784.048(1)(b),_Fla, Stat. (2004) (emphasis added). PER CURIAM. In the instant case, a repeat violence injunction The Record supports the trial court's finding that a was placed against Jose Ortola ("Ortola") after stalking occurred in the instant case. The Record allegations from his neighbor that he fondled and reflects that on the day of the sexual assault Ortola groped her. The question confronting the Court grabbed his crotch and told the victim that she would concerns whether the groping (sexual assault), plus an like it, and that he would be back the next day. Ortola's incident of stalking (where Ortola returned to the harassment, or "course of conduct," continued to the victim's home after being told not to return, and following day when Ortola returned to the victim's remained after being asked to leave), satisfied section home after being told not to, refused to leave after 784.046(1)(b). Florida Statutes, We find that the being asked to leave by the victim's mother, and was Record supports the trial court's finding that two physically removed by the police. Under the stalking incidents of violence occurred. Biggs v. Elliot 707 statute, Ortola's course of conduct, however short, is So.2d 1202 (Fla. 4th DCA 1998)("Whether the evidence of a continuity of purpose. Moreover, the conduct meets the statutory requirement is a question trial court also took into account the fact that, even of fact for the trier of fact."). though the parties had a friendlyeighborly relationship, Ortola had a habit of showing up to the Florida Statutes, Section 784.046(1)(b) provides: victim's home, and coming into the backyard, "'Repeat violence' means two incidents of violence oftentimes startling the victim. After reviewing the or stalking committed by the respondent, one of which Record, including the victim's testimony, there is must have been within 6 months of the filing of the ample evidence to support the trial court's finding that petition, which are directed against the petitioner or a stalking did in fact occur. the petitioner's immediate family member."$ 784.046(1)(b). Fla. Stat. (2004). Moreover, "violence" Accordingly, in light of the foregoing, we affirm @2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.917 So.2d 252 Page 2 917 So.2d 252, 30 Fla. L. Weekly D2824 (Cite as: 917 So.2d 252) the repeat violence injunction entered against Ortola. Affirmed. Fla. App. 3 Dist., 2005. Ortola v. Alfonso 917 So.2d 252, 30 Fla. L. Weekly D2824 END OF DOCUMENT