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Lopez-Macaya v. State

Florida Court of Appeals, Third District

August 14, 2019

Yandri Lopez-Macaya, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Monroe County Lower Tribunal No. 15-6-A-M, Ruth L. Becker, Judge.

          Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.

          Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for appellee.

          Before EMAS, C.J., and FERNANDEZ and MILLER, JJ.

          EMAS, C.J.

         Yandri 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 jail.

         On 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 evidence."[1]

         We 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).

         We find 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:

         Lopez-Macaya 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 a cigarette.

         Once 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.

         Lopez-Macaya 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.

         When 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 ...


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