dissenting.
I respectfully dissent from the majority’s conclusion that the evidence was sufficient to sustain Waldon’s stalking conviction.
In support of the stalking charge, the State presented evidence that six times during a one year time span Majors observed Waldon in various degrees of proximity to herself. Majors first observed Waldon in December of 1994. Majors was driving her ear when she observed Waldon walking down a street within two blocks of Majors’ Broad Ripple dance studio. No eye contact, gestures or threats occurred.. The second observation occurred eight months later on August 16, 1995. Majors was again driving her car when she observed Waldon walking in the parking lot of a business adjacent to the dance studio. As before, no eye contact, gestures or threats occurred. The third sighting occurred on August 20, 1995, with Majors again driving her car. She observed Waldon on the sidewalk outside of the Methodist Hospital Emergency room where Majors worked on a part-time basis. No words were exchanged and no gestures made, but this time Waldon looked'at Majors with what Majors described as an “innocent” look. R. 148. The fourth sighting occurred on August 22, 1995. Majors was driving her car and observed Waldon walking slowly in a direction away from the dance studio. No eye contact was made. The fifth observation occurred on November 1, 1995. Majors was leaving her dance studio and headed toward her car when she observed Waldon peering at her through a slatted fence. There was eye contact and Waldon was smoking and appeared menacing to Majors. She returned to her studio and called the police. The final incident occurred on November 7, 1995 when Majors observed Waldon from the second story window of her dance studio. He was riding a bicycle around a dumpster in the parking lot of an adjacent business. There were no looks exchanged nor. any threats conveyed.
Each time Majors observed Waldon, Wal-don was in a public place. The dance studio is located in Broad Ripple, where pedestrian traffic is quite common. According to Majors, other businesses located in the immediate vicinity of the dance studio include a veterinarian’s office, a pool supply company, a perfume shop, a hair salon, a tanning shop and a business called “The Whistle Stop.” When Waldon was observed in the vicinity of the dance studio he was either on a public thoroughfare or in a parking lot other than the dance studio’s parking lot. When Wal-*210don was observed near Methodist Hospital, he was .on the sidewalk.
In all but two instances, no eye contact between Majors and Waldon occurred. Given the lack of eye contact, it is possible that Waldon did not see Majors even though she saw him. Four out of the six times Majors observed Waldon, Majors was driving her car. In describing three of those instances, Majors testified that she felt safe in her car. In none of the instances did Waldon make a verbal threat, a physical threat, or even an obscene gesture.
“Stalking” is defined by statute as:
a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened.
Ind.Code § 35-45-10-1.1 “Harassment” is defined as:
conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to -suffer emotional distress and that actually causes the victim to suffer emotional distress.
Ind.Code § 35-45-10-2.2 “Impermissible contact” includes, but is not limited to, knowingly or intentionally following or pursuing the victim. Ind.Code § 35-45-10-3.
In this case, there was no evidence to support a finding that Waldon intended to harass Majors. Six sightings of an ex-husband in public places during a one-year period do not amount to harassment. There is nothing in the record which would indicate that the six times Majors observed Waldon were anything but chance or coincidental encounters. In three of those encounters, there is no evidence that Waldon even realized he was involved in an encounter. While an individual might dislike a former spouse or might be afraid to be in the vicinity of a former spouse, that person’s subjective reasons for wishing that the former spouse be elsewhere cannot transform the former spouse’s innocent activities into behavior sufficient to support a criminal conviction.
In Leuteritz v. State, 534 N.E.2d 265 (Ind.Ct.App.1989), Leuteritz was convicted of the offense of harassment based on one telephone call to his former employer’s residence. When the former employer’s wife answered the telephone, Leuteritz said “I would like to speak to Diaper Rash Face Charlie.” Id. at 266. The former employer’s wife told Leuteritz to stop calling and the conversation ended. This court reversed Leuteritz’s conviction, finding the evidence insufficient to' prove that Leuteritz had no intent of legitimate communication, an element of the offense of harassment. Id. at 267. This court noted that intent cannot be inferred from the subjective perception of the complainant, or be dependent on each complainant’s sensitivity and individual reaction. Id. at 266-67. Instead, the standard must be that of a reasonable person.
Here, the encounters between Majors and Waldon were personally upsetting to Majors; they made her upset and fearful. However, there is nothing about the encounters which could make a reasonable person feel harassed, absent some preconceived idea concerning Waldon’s intentions. While Wal-don’s presence in places Majors frequented may have been frightening to her, Majors’ fear cannot form the basis for a determination that Waldon entertained the intent to harass Majors.
Three Indiana cases interpreting the current stalking statute emphasize this point. In Burton v. State, 665 N.E.2d 924 (Ind.Ct.App.1996), Burton made several telephone calls to the victim, leaving messages such as: “Hi whore,” “REDRUM”, “I hope you have the f — mg windows secured,” and “I am coming in the morning.” Burton was also seen outside the victim’s house. From this behavior a reasonable person could conclude *211that Burton entertained the intent to harass the victim.
In Hendricks v. State, 649 N.E.2d 1050 (Ind.Ct.App.1995), Hendricks was enamored with a thirteen-year-old girl who did not share his passion. Hendricks threatened the girl, attempted to pay others to assault her, repeatedly telephoned her home and would stand outside her home with a baseball bat and stare. This type of activity by Hendricks could lead a reasonable person to conclude that Hendricks entertained the intent to harass the victim.
In Johnson v. State, 648 N.E.2d 666 (Ind.Ct.App.1995), Johnson came to Indianapolis searching for the victim, who had fled from Johnson several times previously and was secluded at a shelter to avoid Johnson. He harassed people outside the shelter on two occasions while attempting to gather information on the victim. He also appeared beside her when she went to the prosecutor’s office for help, and even though she indicated she did not wish to speak with him he continued to whisper to her turned back. A reasonable person examining Johnson’s conduct could find that he entertained the intent to harass the victim.
In all of these cases, an examination of the defendant’s actions alone, without consideration of the victim’s subjective perceptions, could lead a reasonable person to the conclusion that the defendant entertained the intent to harass. That is not true in the case before us. Waldon’s actions evince no intent to harass when viewed without considering Major’s subjective perception. For this reason, the evidence is insufficient to sustain Waldon’s stalking conviction. I would reverse with instructions to enter a judgment of not guilty.
. Specifically excluded from the definition of stalking is statutorily or constitutionally protected activity. I.C. § 35-45-10-1.
. “Harassment does not include statutorily or constitutionally protected activity such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes." I.C. § 35-45-10-1.