          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1469
                 _____________________________

JOSHUA DAVID LEE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  ___________________________

On appeal from the Circuit Court for Bay County.
Kathleen Dekker, Senior Judge.

                           April 3, 2019

KELSEY, J.

     Appellant, convicted of aggravated stalking, claims the trial
court improperly admitted into evidence his victim’s 911 call and
three of his jail calls to the victim. He argues that without this
evidence, he could not have been convicted of aggravated
stalking. We find no legal error or abuse of discretion, and affirm.

                      Aggravated Stalking

     Aggravated stalking occurs when a person “willfully,
maliciously, and repeatedly follows, harasses, or cyberstalks
another person and makes a credible threat to that person.”
§ 784.048(3), Fla. Stat. (2016). To “harass” is “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). “‘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.”
§ 784.048(1)(b). To “cyberstalk” is “to engage in a course of
conduct to communicate, or to cause to be communicated, words,
images, or language by or through the use of electronic mail or
electronic communication, directed at a specific person, causing
substantial emotional distress to that person and serving no
legitimate purpose.” § 784.048(1)(d). A minimum of two acts is
required to establish stalking. Pickett v. Copeland, 236 So. 3d
1142, 1144–45 (Fla. 1st DCA 2018) (citing Carter v. Malken, 207
So. 3d 891, 894 (Fla. 4th DCA 2017)).

               Appellant’s Texts to the Victim

     At trial the State introduced photographs a deputy sheriff
took of three text messages on the victim’s phone. A 12:28 p.m.
message from the victim to Appellant said “Im [sic] calling the
sheriff.” At 3:12, Appellant replied, “Call the g*dd*n sheriff. See
if a piece of paper [no-contact order] stops me from treating you
the way you deserve. Trust me you’ll be getting yours.” A second
incoming message from Appellant at 3:14 said, “You f*ing whore.
You are gonna die today.” Both the deputy and the victim
authenticated these photographed messages at trial.

                            911 Call

     Appellant was subject to a court order that he have no
contact with his ex-girlfriend. She called 911 on an evening when
she said Appellant had been sending her “death threats all day”
in text messages and twelve to fifteen voice mail messages that
were “very explicit, very, very scary.” She said Appellant had
given her an ultimatum: meet with him that evening, or wait a
few days and he would break down her door and “cut out [her]
throat with a paring knife.” She asked the dispatcher to “make it
urgent” because she had agreed to Appellant’s demand that she
meet him to talk, and she had “flushed him out” and wanted him
picked up at the pre-arranged meeting place. She said she could
not go home, because “he will bust in the door.” She said she had
made arrangements for herself and her daughter to spend the
night at friends’ homes out of fear of Appellant. While on the
phone with the dispatcher, the victim had started following a
deputy in traffic in hopes of getting immediate help, but the

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dispatcher instructed the victim to park in a safe place and await
a deputy dispatched specifically for her call.

     A deputy responding to the 911 call found the victim
“distraught and in fear for her life.” This deputy photographed
some of the text messages on the victim’s cell phone. This deputy
did not locate or apprehend Appellant at that time; but within
about an hour, the victim flagged down another deputy and asked
for a ride back to her car, repeating her concerns about
Appellant. When they arrived at her car, Appellant walked up.
The second deputy testified that the victim “seemed panic
stricken” upon seeing Appellant, and that Appellant seemed
impaired. This deputy separated Appellant and the victim, and
called for the first deputy to respond to the scene. Appellant was
arrested for aggravated stalking.

                            Jail Calls

      Three recorded jail calls between Appellant and the victim
were introduced into evidence, the first two within moments of
each other the evening of Appellant’s arrest, shortly after he had
been booked into jail; and the third call several weeks later. By
stipulation, counsel had redacted material deemed potentially
prejudicial to Appellant. In the first call, Appellant was angry
and claimed that he had merely wanted to meet the victim for
dinner and to talk. The victim summarized Appellant’s threats in
explicit language very similar to what she had used in the 911
call, which she testified at trial was the truth: “You were the one
telling me that if I didn’t go with you that you were going to
destroy my bike and my car and my house and you’re going to cut
my throat out with a paring knife, you would p*ss into my neck
and watch me gurgle and die.” That call ended when someone
came to fingerprint Appellant, and Appellant immediately called
her back. In the second call, after discussing damage Appellant
had apparently caused to the victim’s motorcycle, which
Appellant denied causing, Appellant told the victim she had “f*d
up majorly this time.”

     Although there were 47 recorded jail calls between the two,
the only additional one admitted at trial occurred several weeks
after Appellant was arrested. Appellant apologized: “I’m sorry for
saying all that s*t to you. You know I didn’t mean any of that, I
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was just upset.” He claimed that on the day of his arrest, he had
been sleep-deprived, had drunk some vodka, and “I don’t even
remember what I wrote to you. And then, or what I was calling
and saying. I don’t really, I don’t know what I did.” The victim
repeated that she “was absolutely terrified, it was worse than
anything you can imagine.” Appellant apologized again: “Well,
like I said, I’m sorry, I didn’t mean anything by that. You know I
would never do anything like that.” He repeated that he only
wanted to meet up with the victim that evening to so they could
have dinner together.

                    Evidentiary Objections

     Appellant objected to the 911 call and the jail calls on
grounds of confrontation clause and hearsay. The defense also
made a boilerplate objection at the close of evidence: “And if we
can go ahead now and renew all objections and evidentiary
rulings.” The victim’s testifying at trial resolved the confrontation
clause objections, and the trial judge overruled the hearsay
objections.

       As to the 911 call, the trial judge had listened to the
recording before trial and concluded that it was admissible as an
excited utterance. The judge described the victim’s speech as
“very fast . . . abnormally fast,” with an “[o]ccasional stutter” and
a “fairly fast” breathing pattern. The judge noted that “she was so
upset that she was trying to follow a deputy” even though she
had no idea where that deputy was going, and was so afraid to go
home that she “was upset and wanting urgently to get assistance
. . . In other words, she was seeking safety.” The judge noted that
in context, the victim was not merely reporting a past crime, but
was concerned for her safety against an upcoming confrontation
with Appellant: “It was, you’ve got to get to him because he’s
after me. . . . It was a cry for help.” The judge interpreted the
victim’s statements about death threats not as planting contrived
information, but rather given genuinely in response to the 911
operator’s questioning. The trial court ruled that the 911 calls
would be admitted as a non-testimonial excited utterance
exception to the rule against hearsay.

    In response to Appellant’s hearsay objection to the jail calls,
the prosecutor argued that the victim’s statements in the calls
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were not being offered for their truth. Rather, the State offered
the jail calls as evidence of Appellant’s admissions. In closing
argument, the defense referred to the third jail call as evidence
that Appellant had no intention of hurting the victim that
evening, but just wanted to meet her for dinner.

                       Standard of Review

     A trial court’s decision to admit evidence is generally
reviewed for abuse of discretion. Hudson v. State, 992 So. 2d 96,
107 (Fla. 2008). That discretion, however, is limited by the rules
of evidence. Id. Whether a statement is hearsay is a legal
question reviewed de novo. Powell v. State, 99 So. 3d 570, 573-74
(Fla. 1st DCA 2012) (examining hearsay definition and excited
utterance questions de novo). We do not re-weigh evidence, and
will affirm if competent evidence supports the judgment. Brand
v. Fla. Power Corp., 633 So. 2d 504, 513 (Fla. 1st DCA 1994)
(citing Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976)).

                             Analysis

     Appellant argues that neither the 911 call nor the jail calls
qualified as an excited utterance or spontaneous statement, and
both were inadmissible hearsay, without which there was
insufficient competent evidence to convict him. He argues that
without these calls, there was just “one text message,” which was
insufficient to sustain his conviction. His principal argument
against admissibility of the 911 call is that it occurred several
hours after the texted death threat, which allowed sufficient time
for the victim to be free from the effect of a startling event, and to
have had time to reflect or fabricate. He argues that the same
reasoning applies to the jail calls, which he claims could not be
considered party admissions because Appellant did not agree
with what the victim said on those calls.

     911 Call/Excited Utterance. We affirm the trial court’s
ruling that the 911 call was properly admitted as an excited
utterance. See § 90.803(2), Fla. Stat. (defining excited utterance
as a “statement . . . relating to a startling event or condition
made while the declarant was under the stress of excitement
caused by the event or condition”). As we have held, to fall within


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this exception, an otherwise hearsay statement must meet the
following elements:

    (1) there was an event startling enough to cause nervous
    excitement; (2) the statement was made before the
    declarant had time to reflect or contrive; and (3) the
    statement was made while the declarant was under the
    stress or excitement caused by the event.

Powell v. State, 99 So. 3d 570, 573–74 (Fla. 1st DCA 2012). We
noted in Powell that “[t]he stress that justifies the admission of
the statement can exist for a significant period of time after the
startling event is over.” Id. at 574.

     As the trial court correctly noted, it was not just Appellant’s
graphic threats by text and voicemail leading up to the 911 call
that evidenced the victim’s state of fear and “nervous
excitement,” but also the impending confrontation with Appellant
on which he had insisted, subject to a death threat. The death
threat was expressed in Appellant’s two text messages: “Trust me
you’ll be getting yours. . . . You f*ing whore. You are gonna die
today.” In addition, the death threat was expressed in the
victim’s words: “[T]he only options I have are to meet him . . . and
talk to him or wait a few days and . . . then he’s going to surprise
me and he’s going to bust in my door and cut out my throat with
a paring knife.” The planned confrontation was confirmed when
Appellant walked up to the victim’s car in the presence of a
deputy at the appointed time, causing panic in the victim. This
victim was under the stress of not just the earlier texts and
voicemails, but also the imminent confrontation.

     Although Appellant argues that the 911 call could not qualify
as an excited utterance because the gap of time between his
second texted death threat and the 911 call gave the victim time
to reflect and contrive, it is undisputed that she did not contrive
the texted death threats. She did not make up her statements
about Appellant’s expecting an evening meeting, that he was on
foot on his way to that meeting, or the place of the meeting—all
of which were confirmed by Appellant’s actions. As the trial judge
noted, the victim was so desperate to get help before that meeting
occurred that she started following a random deputy in traffic,
and her voice and speech patterns on the 911 tape evidenced her
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state of fear. The first deputy who responded to the 911 call and
talked with the victim testified that the victim was “distraught
and in fear for her life.” The second deputy, with the victim when
Appellant approached for that evening meeting, testified that she
was panic-stricken. This evidence sufficed to establish the
excited-utterance exception to the rule against hearsay.

     These facts are analogous to those in Werley v. State, 814 So.
2d 1159 (Fla. 1st DCA 2002). The victim of a domestic battery
called 911 an hour later, as she was walking down the road away
from the house. She told the 911 operator that her husband had
beat her and that if she did not get off the road, he would come
after her and beat her again. Id. at 1161. Like the victim here,
the victim in Werley was found by responding officers to be visibly
upset, frightened, and short of breath. Id. We affirmed the trial
court’s assessment that the 911 call satisfied the excited
utterance exception. Id.; see also Rolle v. State, 215 So. 3d 75, 80
(Fla. 3d DCA 2016) (finding victim’s statement made “a few
hours” after the startling event qualified as an excited utterance
given evidence of the victim’s ongoing state of trauma); Edmond
v. State, 559 So. 2d 85, 86 (Fla. 3d DCA 1990) (finding excited
utterance exception applied to statements made two to three
hours after crime was committed, where witness was still
frightened and emotional). These cases are necessarily fact-
specific, and on the facts presented here, the trial judge did not
err in ruling that this victim’s statements to the 911 operator
constituted excited utterances.

     The Jail Calls. Counsel for both parties cooperatively
stipulated to redacting from the recorded jail calls statements
that could be damaging to Appellant. In response to Appellant’s
objections to placing the victim’s statements before the jury, the
State argued that the jail calls were not being offered for their
truth, but rather to establish Appellant’s adoptive admissions
and his assertion of another threat the very evening of his arrest.
In the calls, the victim repeated statements she had made in the
911 call, almost verbatim; and by that stage of the trial, the
victim had testified under oath that her 911-call statements were
the truth. In closing argument, Appellant’s counsel even utilized
Appellant’s jail call statements about merely wanting to meet the
victim for dinner, to argue lack of any criminal intent.

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     These facts do not demonstrate reversible error. The victim’s
statements, offered for a purpose other than truth—here, to
provide context for Appellant’s responses—are not hearsay. See
Jackson v. State, 25 So. 3d 518, 530 (Fla. 2009) (repeating general
rule that a relevant statement offered for a purpose other than its
truth is not hearsay). Appellant’s acts—text messages, physical
approach, and the mere fact of the two phone calls in addition to
their content—constituted a “course of conduct” for purposes of
the stalking statute. § 784.048(1)(b), Fla. Stat.; Carter, 207 So. 3d
at 894 (requiring a minimum of two acts to constitute stalking).

    AFFIRMED.

WETHERELL and MAKAR, 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 Greg Caracci, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.




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