final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Monroe County Lower
Tribunal No. 15-6-A-M, Ruth L. Becker, Judge.
J. Martinez, Public Defender, and Stephen J. Weinbaum,
Assistant Public Defender, for appellant.
Moody, Attorney General, and Kayla Heather McNab, Assistant
Attorney General, for appellee.
EMAS, C.J., and FERNANDEZ and MILLER, JJ.
Lopez-Macaya was arrested and charged by information with two
felonies: domestic battery by strangulation (Count I) and
aggravated assault with a deadly weapon (Count II). A jury
convicted him of domestic battery by strangulation (as
charged) and misdemeanor assault (as a lesser-included
offense of aggravated assault). The trial court sentenced him
to concurrent terms of five years in prison and sixty days in
appeal, Lopez-Macaya raises three issues. We find no merit in
any of the issues raised, but write to address
Lopez-Macaya's claim that "the trial court
fundamentally erred in failing to reduce [the domestic
battery by strangulation count] to simple battery because the
element of great bodily harm, or the risk thereof, was not
established by competent and substantial
first note that Lopez-Macaya failed to preserve this error in
the trial court below and has thus waived the issue for
appeal unless it rises to the level of fundamental error.
See Monroe v. State, 191 So.3d 395, 400 (Fla. 2016)
(reiterating that "unless the evidence was insufficient
to show that any crime had been committed, claims of
insufficient evidence must be properly preserved"
(citing F.B. v. State, 852 So.2d 226, 230 (Fla.
2003))); Stephens v. State, 787 So.2d 747, 753 (Fla.
2001) (observing that "a bare bones motion for judgment
of acquittal" is insufficient to preserve a specific
argument on appeal).
no fundamental error and, indeed, no error at all. Even had
defense counsel offered more than a "bare bones"
motion for judgment of acquittal, it would properly have been
denied, given that the State presented competent substantial
evidence to support the jury's verdict finding
Lopez-Macaya guilty of domestic battery by strangulation. The
evidence presented at trial, in a light most favorable to
upholding the verdict, established:
and K.S. were in a dating relationship and living together on
the night in question. They began arguing when Lopez-Macaya
pushed K.S, and then left the house and went outside to smoke
Lopez-Macaya was outside, K.S. locked the doors and ran to
the bathroom to hide. Lopez-Macaya discovered he was locked
out and began banging on the doors. He broke a window,
reached inside the broken window, and opened a door. When
Lopez-Macaya saw K.S. was in the bathroom, he attempted to
open the door and K.S. tried to prevent him from doing so.
Lopez-Macaya eventually gained entry to the bathroom and
punched K.S. several times with his fist.
had a knife in his possession and held that knife to
K.S.'s throat, threatening K.S. he was going to kill her.
He then dragged K.S. by her hair into the bedroom and onto
her bed, where he got on top of her and strangled her with
his hands around her neck. K.S. could not breathe.
Lopez-Macaya threatened to cut her face and told her she was
going to die. K.S. believed Lopez-Macaya was going to kill
her that night.
Lopez-Macaya left the room for a moment to get another knife,
K.S. retrieved her cell phone and attempted to dial 911. When
Lopez-Macaya returned, he grabbed the phone from K.S. and
broke it. K.S. was uncertain whether the 911 call had gone
through before Lopez-Macaya grabbed the phone from her hand
and broke it. Lopez-Macaya then continued his attack on K.S.,
including choking her ...