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
divisions decision affirming David McCoys 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 McCoys 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 McCoys 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
Page 383
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 McCoys convictions.
[¶5]
Accordingly, we affirm the divisions 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 McCoys 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. McCoys
questions ultimately became personal, including questions
about the young mens 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, McCoys
conviction should be upheld.
[¶13]
In a split published opinion, the division affirmed.
Id. Rejecting the Peoples 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
McCoys position because the statutory language did not
restrict the provisions 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 McCoys 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 Webbs 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 McCoys convictions without reaching the merits of
McCoys 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 McCoys
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 McCoys 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 defendants
unpreserved sufficiency claim. Compare, e.g.,
People v. Johnson,2017 COA 11, ¶ 11, __ P.3d __
(concluding that plain error analysis ...