Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1362 _____________________________ ARTURO HERNANDEZ-PAZ, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Robert E. Long, Judge. April 7, 2020 PER CURIAM. Appellant, Arturo Hernandez-Paz, appeals his conviction for attempted sexual battery and raises two issues. We reject Appellant’s first argument that the trial court erred in denying his motion for judgment of acquittal for the reasons that follow. We affirm as to the second issue without discussion. We review the trial court’s denial of a motion for judgment of acquittal de novo to determine whether the evidence is legally sufficient to sustain a conviction. Kemp v. State, 166 So. 3d 213, 216 (Fla. 1st DCA 2015). In doing so, we must consider the evidence and all reasonable inferences therefrom in a light most favorable to the State. Id. Viewed in the light most favorable to the State, the evidence at trial showed the following. Appellant returned to the victim’s apartment by himself for a tool he claimed to have left there earlier while his crew was replacing the flooring. Appellant asked to look for the tool in the victim’s bedroom, and while they were both in there, he repeatedly called her beautiful and complimented her body. He then asked her if she knew any women who would be interested in having sex with him, reassuring her that he had money and could pay for “whatever he needs to happen.” She kept telling him that she did not know any such women and she was not interested and that her boyfriend would be home soon. While standing in a manner that he was blocking her only way out of the bedroom, Appellant told the victim that they “can do something quick right now, that no one had to know about what [they] had to do right then and there,” and he proceeded to try to reach under her pajama shorts and grab her vagina. She slapped his hand away before he could make physical contact, and she told him no. Appellant, however, did not cease his sexual advances at that point. Cf. Rogers v. State, 660 So. 2d 237, 238–41 (Fla. 1995) (holding that the evidence did not support a conviction for attempted sexual battery where the appellant told the victim to take off her clothes and grabbed her breast when she refused, and he stopped when she asked him not to do that and made no further attempt to touch her, despite holding her and her companion at gunpoint in a car). Instead of stopping when the victim unambiguously refused his sexual advances by slapping his hand away and telling him no, Appellant forcibly continued his assault by immediately putting her in a tight bear hug, with one arm around her waist and on her buttocks and the other hand grabbing her breasts. He then lifted her up and tried to swing her over to the bed that was right next to them. Nervous about being placed on the bed, the victim pushed Appellant off as hard as she could and ran out of the bedroom to get her cell phone. Appellant terminated his attempt only then, after the victim got away from him. See Gudinas v. State, 693 So. 2d 953, 962 (Fla. 1997) (affirming the appellant’s conviction for attempted sexually battery where he followed the victim and tried to forcibly enter her car on three separate occasions, once while yelling, “I want to f___ you,” and he ceased his attempt only when she laid on the horn, and distinguishing Rogers because “Rogers 2 ceased his advances after simply being asked to stop, although he held the two people at gunpoint with both powerless to stop him”); see also Geldreich v. State, 763 So. 2d 1114, 1118–19 (Fla. 4th DCA 1999) (affirming the denial of the appellant’s motion for judgment of acquittal on the charge of attempted sexual battery with force where he forcibly carried the victim to the parking lot after she declined his invitation to go to his apartment, he threw her down, straddled her, and began to take her blouse off, and she was able to flee when someone went to see if everything was okay upon hearing her screams, and explaining that “[u]nlike Rogers . . ., where the defendant ceased his sexual advances when the victim asked him to stop, Geldreich forcibly continued his assault”). Thus, we find that the trial court properly denied Appellant’s motion for judgment of acquittal as there was competent, substantial evidence to support a verdict finding him guilty of attempted sexual battery. Therefore, we affirm Appellant’s conviction. AFFIRMED. RAY, C.J., and LEWIS and OSTERHAUS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee; Mark V. Murray of Law Office of Mark V. Murray, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee. 3