A peculiar dispute between two South Florida neighbors came before the Fourth District Court of Appeal on Wednesday when it found that a registered sex offender's three-year "campaign of harassment" against the couple next door violated his probation and warranted a prison sentence.

The case drew conflicting opinions from the appellate panel as two judges found the defendant Scott Johnstone's behavior fell under Florida's stalking statute but a dissenting judge said the "antics" were nothing more than "petty annoying behavior."

The feud began after Johnstone disclosed that he'd been convicted of 10 counts of possession of child pornography and his new neighbors, Mr. and Mrs. Shockley, said they didn't want anything to do with him.

Johnstone then allegedly did an array of things to annoy them, including painting a "clown-like character" on an adjoining fence with the words," STUPID PEOPLE BEYOND THIS POINT" and an arrow pointing to their house.

Johnstone allegedly also put barbed wire and painted obscenities on the fence, walked back and forth in front of the neighbors' house, ran his lawnmower over ash fires so the smoke would blow towards them and placed weeds, rocks and bits of tree and concrete on their property.

The neighbors claimed Johnstone also stared at their young grandchildren and bathed in his backyard, which faced their house, wearing "whitey tighties" while washing himself with soap and water from a hose.

The allegations put the Fourth DCA in a bind.

"Determining 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," the opinion began.

But the majority — comprising Fourth DCA Judges Alan Forst and Martha Warner — found St. Lucie Circuit Judge Dan Vaughn was right to send Johnstone back to prison, finding his behavior amounted to "unprovoked, malicious and unrelenting forms of harassment" against innocent parties.

|

'Bad news for our jurisprudence'

But it wasn't cut and dried.

Judge Mark Klingensmith dissented, writing that the case "provides yet another illustration of the misuse of the stalking and harassment statutes."

"When one thinks of acts that constitute harassment, a few examples immediately come to mind: late-night hang-up calls; frequent unwelcomed visits to a workplace; multiple disturbing notes or mailings," Klingensmith said. "With the majority's opinion, we can now add garish fence painting, unproven property damage and outdoor hose-rinsing to that list."

Klingensmith wrote that the majority had effectively given the Shockleys veto power over their neighbor's lawful but annoying behavior" and allowed the statute to "punish people for engaging in petty annoying behavior." He countered that Johnstone's behavior didn't rise to the level of malicious.

"While this is good news for Mr. and Mrs. Shockley because their problem was solved, it is bad news for our jurisprudence and everyone else because it marks the slide down a slippery slope," Klingensmith said.

Klingensmith wrote that the incidents were too sporadic and dissimilar to constitute "a course of conduct," and said the trial court failed to address a crucial statutory standard of "substantial emotional distress."

"Mere irritation, annoyance, embarrassment, exasperation, aggravation and frustration, without more, does not equate to 'substantial emotional distress,' " Klingensmith wrote. "In the end, the trial court did just what the Shockleys wanted all along: it had appellant removed from the neighborhood and returned to jail. With the help of law enforcement and a cooperative probation officer, their plan worked."

Aside from the debris allegations, for which the neighbors had no hard evidence against Johnstone, the judge noted that all of the incidents involve his own property or places he had a legal right to be. Klingensmith also highlighted that "it takes two to tango," pointing to multiple complaints the Shockleys filed against Johnstone.

As for the hose rinsing episode, Klingensmith noted that there could have been a logical reason behind it, including to avoid tracking dirt indoors.

"If appellant violated no laws against nudity or lewd and lascivious behavior—and there is no suggestion that he did—the Shockleys' mere disdain at this behavior does not and cannot translate into a violation of the statute," Klingensmith said,

Johnstone's lawyer Ashley Nicole Minton of Minton Law in Fort Pierce felt vindicated by that dissent.

"In light of Judge Klingensmith's full-throated dissent that adopted much of our brief, we will be filing a motion for rehearing en banc," Minton said. "We feel this case was an encroachment on our clients' liberties and is indeed the slippery slope that Judge Klingensmith warns of in his dissent."

Florida Attorney General Ashley Moody and Assistant Attorney General Allan R. Geesey in West Palm Beach represent the state. Their office did not immediately respond to a request for comment.

Read more: