McCoy v. People

          Rehearing Denied June 24, 2019

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          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 11CA1795

          Attorneys for Petitioner: Megan A. Ring, Public Defender, Jon W. Grevillius, Deputy Public Defender, Denver, Colorado

          Attorneys for Respondent: Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado

         OPINION

         GABRIEL, JUSTICE

         [¶1] We granted certiorari to review the court of appeals division’s decision affirming David McCoy’s convictions for two counts of unlawful sexual contact while engaged in the treatment or examination of a victim for other than bona fide medical purposes, a class four felony. People v. McCoy, 2015 COA 76M, __ P.3d __. This case principally requires us to determine the appropriate standard of review for unpreserved claims of insufficient evidence and to apply that standard to decide whether legally sufficient evidence supported McCoy’s convictions here.^[1]

         [¶2] We initially conclude, as did the majority below, that sufficiency of the evidence claims may be raised for the first time on appeal and are not subject to plain error review. Accordingly, appellate courts should review unpreserved insufficiency claims de novo (i.e., in the same manner as if the claims were preserved), and not under a plain error standard of review. Such a rule is consistent with our criminal procedure rules, long-standing precedent, and the nature of sufficiency claims, including the settled principle that a conviction that is based on legally insufficient evidence cannot stand.

         [¶3] Turning then to the merits of McCoy’s sufficiency claims, we begin by construing section 18-3-404(1)(g), C.R.S. (2018), which bars sexual contact committed during treatment or examination for other than bona fide medical purposes or in a manner substantially inconsistent with reasonable medical practices. After determining that this provision is ambiguous, we employ settled tools of statutory

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construction and conclude that the provision applies to a doctor or other individual who is, or holds himself or herself out to be, a health treatment provider of any kind, and who knowingly subjects the victim to sexual contact while examining, treating, or purporting to examine or treat the victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices.

         [¶4] Finally, applying this construction here, we conclude that the provision is neither facially overbroad nor unconstitutionally vague and that the prosecution presented sufficient evidence to support McCoy’s convictions.

         [¶5] Accordingly, we affirm the division’s judgment, although our reasoning differs in some respects from that of the division majority.

          I. Facts and Procedural Background

         [¶6] The charges at issue stemmed from McCoy’s interactions with two young men, P.K. and G.M., who met with McCoy believing that they were interviewing and training for possible jobs with him.

         [¶7] When the young men first met McCoy, P.K. was in his mid-twenties, G.M. was in his late teens or early twenties, and both had other jobs. McCoy told them that he worked in the television or film and broadcast industry, and he gave each of them a business card, telling at least P.K. that if he had any interest in working for McCoy, he should call. Each of the young men eventually contacted McCoy about the possibility of a job with his purported company, and McCoy subsequently had them come to his apartment for what he represented would be job interviews and initial training.

         [¶8] When McCoy arrived at his apartment with each of the young men, he took and held onto their identification papers and began a lengthy "interview" process. McCoy’s questions ultimately became personal, including questions about the young men’s prior relationships and their sexual experiences and fantasies.

         [¶9] At some point during each of these meetings, McCoy told the young men that he needed to conduct a physical examination of them, allegedly to make sure that they were physically fit and able to do the supposed job. Before and during these physical examinations, McCoy told the men that he had been trained in a medical field, although the details of what he said differed in some respects (e.g., he apparently said, at different times, that he was a physician, a pediatrician, and a Harvard-trained psychologist). These physical examinations eventually became sexual in nature, and McCoy had the men remove parts of their clothing; took their pulses in their groin areas; touched, moved, or examined their genitals or the area right next to their genitals; and touched their buttocks.

         [¶10] The police became involved in 2009, when P.K. contacted them following his encounter with McCoy. The prosecution subsequently charged McCoy with, as pertinent here, two counts of unlawful sexual contact, based on the above-described conduct involving P.K. and G.M. The case ultimately proceeded to trial, and a jury convicted McCoy as charged.

         [¶11] McCoy then appealed, arguing that section 18-3-404(1)(g) proscribes only conduct occurring in a physician-patient relationship and as part of a medical examination or medical treatment. McCoy, ¶ 1. Applying this interpretation, he contended that because he was not a physician, the prosecution had presented insufficient evidence to sustain his convictions. Id.

         [¶12] The People responded by first contending that because McCoy had not preserved his sufficiency claim, the division should consider the issue only for plain error. The People then contended that under this plain error standard, McCoy’s conviction should be upheld.

         [¶13] In a split published opinion, the division affirmed. Id. Rejecting the People’s argument regarding the standard of review, the division first concluded that appellate courts review claims of insufficient evidence de novo, even if the defendant did not raise such claims at trial. Id. at ¶¶ 6-37. Proceeding then to interpret section 18-3-404(1)(g) in light of this standard, the division concluded

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that the provision unambiguously applied to someone in McCoy’s position because the statutory language did not restrict the provision’s application to medical professionals or those claiming to be medical professionals but rather applied to "any actor." Id. at ¶¶ 41, 45. The division thus concluded that the prosecution had presented sufficient evidence to sustain McCoy’s convictions. Id. at ¶ 47.

         [¶14] Judge Webb specially concurred, disagreeing with the majority on the question of the standard of review to be applied to an unpreserved sufficiency claim. Id. at ¶¶ 81, 88-89 (Webb, J., specially concurring). In his view, the plain error standard should apply to unpreserved sufficiency claims, although he opined that review under that standard would lead to a different result from de novo review only when (1) a threshold question of statutory interpretation must be answered before the sufficiency of the evidence can be determined, (2) this question was created solely by appellate counsel, and (3) the issue fails the obviousness requirement of plain error analysis because the statute does not include common terms or its language has never been interpreted. Id. at ¶ 70. In Judge Webb’s view, only in this circumstance, which he predicted would rarely arise, could an appellate court begin its analysis with obviousness rather than sufficiency. Id. Applying this analysis, Judge Webb opined that McCoy had not met the obviousness prong of the plain error standard, and, thus, he would have affirmed McCoy’s convictions without reaching the merits of McCoy’s sufficiency challenge. Id. at ¶¶ 105-07.

         [¶15] McCoy then petitioned this court for certiorari review, and we granted his petition.

          II. Analysis

         [¶16] We begin by discussing the appropriate standard of review to be used by appellate courts when considering unpreserved sufficiency of the evidence claims. We conclude that sufficiency of the evidence claims may be raised for the first time on appeal and are not subject to plain error review. Accordingly, appellate courts should review unpreserved sufficiency claims de novo (i.e., in the same manner as if the claims were preserved). We next proceed to conduct that review in this case. This review requires us first to determine the scope of section 18-3-404(1)(g) and specifically whether it (1) proscribes conduct only within the context of the physician-patient relationship, as McCoy contends; (2) covers the conduct of other treatment providers and individuals who falsely hold themselves out to be doctors or treatment providers; or (3) covers conduct by any actor, as the People assert and the division below determined. We conclude that the statute covers doctors, other treatment providers, and those holding themselves out to be doctors or healers. Based on this interpretation, we address McCoy’s contentions that the statute is facially overbroad and unconstitutionally vague, and we reject both arguments. Finally, we consider whether the prosecution presented sufficient evidence to support McCoy’s unlawful sexual contact convictions, and we conclude that it did.

          A. Standard of Review

         [¶17] For many years, divisions of the court of appeals had consistently concluded that appellate courts review sufficiency of the evidence claims de novo, regardless of whether the defendant preserved the sufficiency claim by way of a motion for judgment of acquittal or a motion for a new trial. See, e.g., People v. Randell, 2012 COA 108, ¶¶ 29-30, 297 P.3d 989, 997-98 ("We review de novo whether the evidence is sufficient to support a conviction. A defendant may challenge the sufficiency of the evidence on appeal without moving for a judgment of acquittal in the trial court."); People v. Gregg, 298 P.3d 983, 987 (Colo.App. 2011) ("We review de novo whether sufficient evidence supports a verdict."); People v. Gibson, 203 P.3d 571, 575 (Colo.App. 2008) (same).

         [¶18] Beginning with People v. Lacallo,2014 COA 78, ¶ 24, 338 P.3d 442, 449, however, divisions have divided over the proper standard of review to be applied to a defendant’s unpreserved sufficiency claim. Compare, e.g., People v. Johnson,2017 COA 11, ¶ 11, __ P.3d __ (concluding that plain error analysis ...