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 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 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 does
not apply to unpreserved sufficiency claims premised on a
question of law), and People v. Sandoval, 2016 COA
14, ¶ 30, 409 P.3d 425, 429 (concluding that sufficiency
claims are not governed by plain error review), with
People v. Heywood, 2014 COA 99, ¶ 9, 357 P.3d 201,
205 (concluding that unpreserved sufficiency claims will be
reversed only for plain error), and Lacallo, ¶
24, 338 P.3d at 449 (same).
¶19
For a number of reasons, we now conclude that sufficiency
claims may be raised for the first time on appeal and are not
subject to plain error review, and therefore, appellate
courts should review unpreserved sufficiency claims de novo
(i.e., in the same manner as if the claims were preserved).
¶20
First, "the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with
which he is charged." In re Winship, 397 U.S.
358, 364 (1970). When a defendant challenges the sufficiency
of the evidence, he or she is asserting that the prosecution
has not proven every fact necessary to establish the crime at
issue, and thus, it has not established that the defendant,
in fact, committed a crime. Appellate review of such a claim
thus serves to protect an essential component of due process,
namely, that "no person shall be made to suffer the onus
of a criminal conviction except upon sufficient proof,"
Jackson v. Virginia, 443 U.S. 307, 316 (1979), and
we do not believe that plain error review could, consistent
with due process, result in the affirmance of a conviction
that was unsupported by legally sufficient evidence.
¶21
Second, requiring a defendant to preserve a sufficiency of
the evidence claim, either by way of a motion for judgment of
acquittal or a motion for a new trial, is inconsistent with
our rules of criminal procedure. Nothing in those rules
requires a criminal defendant to file a motion for a judgment
of acquittal in order to preserve an issue for appellate
review, and we perceive a challenge to the prosecution's
completed evidence to be different in kind from
trial errors (e.g., in the admission of evidence or in jury
instructions), which allow a court to avoid an error before
it occurs. Nor do the rules require a defendant to file a
motion for a new trial to preserve a sufficiency claim for
appellate review. To the contrary, Crim. P. 33(a) provides
that a party claiming error in the trial of a case "need
not raise all the issues it intends to raise on appeal in [a
motion for a new trial] to preserve them for appellate
review."
¶22
Third, a defendant effectively challenges the sufficiency of
the evidence presented at trial by contesting that evidence
at the trial, and we perceive no purpose in requiring a party
to pursue some other form of objection directed to the
evidence as a whole. See People v. McCullough, 298
P.3d 860, 865 (Cal. 2013) ("Parties may generally
challenge the sufficiency of the evidence to support a
judgment for the first time on appeal because they
'necessarily objected' to the sufficiency of the
evidence by 'contesting [it] at trial.'")
(quoting People v. Gibson, 33 Cal.Rptr.2d 217, 218
(Cal.Ct.App. 1994)).
¶23
Fourth, in our view, principles of stare decisis support de
novo review here. To the extent that this court has
previously discussed the issue presented here, we have
consistently opined or at least suggested that preservation
is not required. See, e.g., Morse v.
People, 452 P.2d 3, 5 (Colo. 1969) (noting that the
court could adequately review a sufficiency of the evidence
claim based on the record before it even though the issue had
not been raised in the trial court); see also People v.
Roggow, 2013 CO 70, ¶ 13, 318 P.3d 446, 450
(stating, without discussing whether the sufficiency claim at
issue had been preserved, that the court reviews questions
relating to the sufficiency of the evidence de novo);
Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010)
(same).
¶24
Likewise, as noted above, prior to Lacallo,
divisions of our court of appeals consistently concluded that
sufficiency of the evidence claims could be raised for the
first time on appeal and were not subject to plain error
review, but rather would be reviewed de novo, in the same
manner as if the claims had been preserved. Numerous
out-of-state authorities have long reached the same
conclusion. See, e.g., McCullough, 298 P.3d
at 865 (noting that parties may generally challenge the
sufficiency of the evidence for the first time on appeal);
State v. Lewis, 36 A.3d 670, 675 n.4 (Conn. 2012)
(observing that an unpreserved sufficiency claim would be
reviewed in the same manner as any properly preserved claim
because a defendant found guilty on the basis of insufficient
evidence has been deprived of a constitutional right);
Darst v. State, 746 S.E.2d 865, 870 n.8 (Ga.Ct.App.
2013) ("Because due process requires the existence of
sufficient evidence as to every element of the crime of which
a defendant is convicted, the fact that this issue was not
explicitly raised does not prevent us from addressing (nor,
more importantly, does it justify a refusal to address) the
issue at this juncture.") (citation omitted); State
v. Wright, 295 P.3d 1016, 1017 n.1 (Idaho Ct. App. 2013)
(noting that "sufficiency of the evidence may be raised
for the first time on appeal"); People v.
Space, 103 N.E.3d 1019, 1027-28 (Ill.App.Ct. 2018)
(rejecting the state's argument that the defendant had
forfeited his sufficiency of the evidence claim by not
raising it by objection or in a post-trial motion, and
stating that the claim may be raised for the first time on
direct appeal); Baker v. State, 967 N.E.2d 1037,
1043 (Ind.Ct.App. 2012) (noting that the defendant was not
required to object at trial in order to preserve an appellate
argument that the evidence was insufficient to support an
element of the offense or sustain the defendant's
conviction); State v. Foster, 312 P.3d 364, 368
(Kan. 2013) (observing that review of sufficiency questions
does not require the court to engage in a "preservation
inquiry"); Commonwealth v. Garrett, 41 N.E.3d
28, 31 (Mass. 2015) (reviewing a sufficiency claim for the
first time on appeal because a conviction based on legally
insufficient evidence is inherently serious enough to create
a substantial risk of a miscarriage of justice); People
v. Williams, 811 N.W.2d 88, 93 (Mich. Ct. App. 2011)
("A defendant need not take any action to preserve a
challenge to the sufficiency of the evidence.");
State v. Litzau, 893 N.W.2d 405, 409 (Minn.Ct.App.
2017) (reviewing an unpreserved sufficiency claim that was
premised on an issue of statutory construction because the
interests of justice required such review, given that,
"[i]f appellant's conduct is not criminal under the
statute pursuant to which he is charged, then we cannot
properly affirm the conviction on forfeiture grounds");
State v. Sutton, 419 P.3d 1201, 1205 n.3 (Mont.
2018) ("[S]ufficiency of the evidence may be challenged
on appeal even if the issue is not raised by the defendant at
trial."); State v. Scott, 185 P.3d 1081, 1083
(N.M. Ct. App. 2008) ("[I]f the evidence is insufficient
to legally sustain one of the elements of a crime, the error
is fundamental and may be raised for the first time on
appeal."); State v. Electroplating, Inc., 990
S.W.2d 211, 220 (Tenn. Crim. App. 1998) ("[N]othing in
the rules requires the defendant to raise the sufficiency of
the evidence either in a motion for judgment of acquittal or
in the motion for new trial in order to preserve the issue
for appellate review."), abrogatedinpartonothergroundsbyStatev.King, No.
M2012-00236-CCA-R3-CD, 2013 WL 793588, at *7 (Tenn. Crim.
App. Mar. 4, 2013), aff'd, 432 S.W.3d 316 (Tenn.
2014); Prichard v. State, 533 S.W.3d 315, 320 (Tex.
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