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Akin v. Jacobs

Florida Court of Appeals, Fifth District

December 22, 2017

RICKY EWING AKIN, Appellant,
v.
CASSANDRA R. JACOBS, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Brevard County, Kenneth Friedland, Acting Circuit Judge.

          Gregory W. Eisenmenger, of Eisenmenger, Blaue & Peters, P.A., Viera, for Appellant.

          No Appearance for Appellee.

          PER CURIAM.

         Ricky Akin appeals the final judgment of injunction for protection against stalking entered in favor of Cassandra Jacobs following an evidentiary hearing. We reverse because there was a lack of competent substantial evidence presented to support an injunction against stalking.

         The parties previously worked in different departments at the Kennedy Space Center. Jacobs filed a petition for injunction for protection against stalking pursuant to section 784.0485, Florida Statutes (2016), alleging that she received harassing letters anonymously sent through the mail over the course of the last year, her work space was vandalized with a substance "spewed" on her chair and office equipment, and that shortly before filing the petition, she learned through an investigation conducted by her employer that Akin had been tracking Jacobs' and her boyfriend's social media pages and acquired personal information about Jacobs and her daughter.

         Stalking is the offense of "willfully, maliciously, and repeatedly follow[ing], harass[ing], or cyberstalk[ing] another person." § 784.048(2), Fla. Stat. (2016). By definition, the statute requires that a petitioner allege and prove two separate instances of stalking. David v. Schack, 192 So.3d 625, 627-28 (Fla. 4th DCA 2016) (citing Roach v. Brower, 180 So.3d 1142, 1144 (Fla. 2d DCA 2015)). "Each incident of stalking must be established by competent substantial evidence . . . ." Laserinko v. Gerhardt, 154 So.3d 520, 522 (Fla. 5th DCA 2015) (quoting Touhey v. Seda, 133 So.3d 1203, 1204 (Fla. 2d DCA 2014)). In the present case, there were no allegations contained in the petition or evidence presented at the evidentiary hearing of Akin either "following" or "cyberstalking" Jacobs under this statute. Therefore, to obtain the instant injunction against stalking, Jacobs had to prove at least two separate instances of being willfully and maliciously harassed. The term "harass" is defined in this statute as 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. (2016). Furthermore, "[i]n determining whether each incident of harassment [has caused] 'substantial emotional distress' . . . to support a finding of stalking, 'courts use a reasonable person standard, not a subjective standard.'" Plummer v. Forget, 164 So.3d 109, 110 (Fla. 5th DCA 2015) (quoting Laserinko, 154 So.3d at 521-22).

         Jacobs' evidence at the hearing was lacking. Notably, none of the letters that Jacobs alleged to have been sent by Akin were admitted into evidence. Also, Jacobs did not testify to suffering substantial emotional distress. See Klemple v. Gagliano, 197 So.3d 1283, 1286 (Fla. 4th DCA 2016) (finding the evidence insufficient to constitute the "harassment" prong under the statute where petitioner did not testify to any emotional distress). Jacobs did call one witness to testify, an investigator employed by Kennedy Space Center who investigated Jacobs' separate complaint that she filed with her employer against Akin on these allegations. Much of this witness's testimony concerned a videotape, letters, and a report that he reviewed but did not prepare, none of which were admitted into evidence. Akin's counsel interposed hearsay and best evidence rule objections to much of this witness's testimony, which the trial court incorrectly overruled. An injunction cannot be based on hearsay evidence. See id. at 1286. Finally, the evidence presented at the hearing that Akin may have smeared tuna fish on Jacobs' work station was speculative. See Realauction.com, LLC v. Grant St. Grp., Inc., 82 So.3d 1056, 1059 (Fla. 4th DCA 2011) ("Speculative testimony is not competent substantial evidence.").

         Accordingly, we reverse the final judgment of injunction for protection against stalking, with directions to dismiss the petition.

         REVERSED and REMANDED.

          COHEN, CJ, AND EVANDER, J, concur LAMBERT, J, concurs and concurs specially, with opinion.

          LAMBERT, J., concurring and concurring specially, with opinion.

         I concur with the majority opinion. The result of this appeal may well have been different if the letters that Jacobs asserts were regularly sent to her by Akin were actually admitted into evidence.[1] Because the letters were not actually admitted into evidence, there was no competent evidence in the record about the content of the letters or how they would cause a reasonable person to suffer substantial emotional distress. Moreover, and as pointed out in the majority opinion, there is no actual testimony or evidence from Jacobs or her witness that Jacobs suffered from emotional distress, let alone substantial emotional distress as ...


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