Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1283 _____________________________ VERONICA GREEN POSEY, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Jan Shackelford, Judge. January 22, 2020 BILBREY, J. Appellant challenges her conviction and life sentence for first degree felony murder after the trial court denied the defense motions for judgment of acquittal after the State’s case in chief and at the conclusion of trial. Appellant asserts that the State’s evidence of the requisite willful intent to abuse the victim child was insufficient to prove aggravated child abuse so as to survive the motions for judgment of acquittal on the felony murder charge. We disagree and affirm. The State’s uncontroverted evidence was that the child victim was a nine-year-old girl who was four feet and eight inches tall and weighed 109 pounds. The medical examiner testified at trial that the cause of death was “mechanical asphyxiation,” or compression of the chest and torso which prevented the child from breathing. The medical examiner further testified that such compression was consistent with the child being sat upon for several minutes — the admitted, intentional actions of the 64-year-old, 320-pound Appellant. The State also presented evidence, through the testimony of the medical examiner, of non-life-threatening injuries on the child’s body. The medical examiner described bruising and scrapes she observed, including “the worst case that I’ve seen of the severity of the bruising on the buttocks.” According to the medical examiner, the bruises were “significant” and extended “very deep” into the tissue, indicating “possibly injury on top of injury.” The State concluded its case in chief by presenting a video recording of Appellant’s post Miranda interview with an Escambia County Sheriff’s Office investigator. In the interview, Appellant explained to an investigator that she went to the child’s home the day of the incident after the child’s adoptive mother requested Appellant’s assistance in controlling the child’s wild behavior. Appellant described how she and the mother struck the child, the mother using a belt and Appellant using a ruler reinforced with a curtain rod or similar light pipe, until the ruler broke. When the child broke away from the women, Appellant caught her and sat on her to restrain her movements. This final restraint resulted in the child’s death. The Appellant moved for a JOA at the conclusion of the State’s case in chief and at the close of all evidence. Appellant’s motions for JOA were not based on any deficiency in the State’s evidence of Appellant’s intent to commit aggravated child abuse. Rather, Appellant’s counsel argued that Appellant’s striking the child prior to the act which caused the child’s death constituted legally permissible corporal punishment. Accordingly, the motions for JOA did not preserve the sufficiency of the State’s evidence of the element of intent for appellate review. See Newsome v. State, 199 So. 3d 510, 513 (Fla. 1st DCA 2016) (holding that to preserve a motion for judgment of acquittal, “the precise legal argument as to why the evidence is insufficient to sustain a conviction must be presented to the trial court”). 2 Even if the sufficiency of the State’s evidence of Appellant’s intent had been raised in the motions for JOA, we would still affirm. Appellant readily admitted, in her pre-trial interview with the investigator which was offered by the State and during her own testimony at trial, that she intended to sit on the child and use her considerable body weight to restrain the child. She further admitted that she remained upon the child’s body even after the second time the child told Appellant she could not breathe. These actions were sufficient to show a prima facie case that Appellant willfully tortured or maliciously punished the child and thereby committed aggravated child abuse. See § 827.03(1)(a)2., Fla. Stat. (2017). The State’s proof that the child was killed while Appellant was engaged in aggravated child abuse was therefore sufficient to survive the motions for JOA. See §§ 782.04(1)(a)2.h. & 827.03(1)(a), Fla. Stat. (2017). Because aggravated child abuse is clearly enumerated in the felony-murder statute, felony-murder can be predicated upon a single act of aggravated child abuse. State v. Sturdivant, 94 So. 3d 434, 440 (Fla. 2012). Under these circumstances, the State’s evidence of Appellant’s intent was sufficient to survive the motions for JOA even if the issue had been preserved. We find no merit in Appellant’s second issue, concerning an evidentiary objection, and affirm without further comment. The judgment and sentence are AFFIRMED. MAKAR and JAY, 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 Terry P. Roberts, Special Assistant Public Defender, Tallahassee, for Appellant. 3 Ashley Moody, Attorney General, and Robert “Charlie” Lee, Assistant Attorney General, Tallahassee, for Appellee. 4