Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 11CA2084
Attorneys for Petitioner: Megan A. Ring, Public Defender
Sarah A. Kellogg, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
Brock J. Swanson, Assistant Attorney General Denver, Colorado
We granted certiorari to review the court of appeals
division's opinion affirming Bob Maestas's conviction
for second degree burglary. People v. Maestas, No.
11CA2084 (Colo.App. Jan. 15, 2015). We now reverse and remand
for further proceedings.
For the reasons discussed in McCoy v. People, 2019
CO 44, P.3d, which we are also announcing today, 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
sufficiency claims de novo (i.e., in the same manner as if
the claims were preserved), and not under a plain error
standard of review, including when the claims involve
preliminary questions of statutory construction. Because the
division reviewed Maestas's sufficiency claim for plain
error and affirmed the trial court's ruling without
considering the merits of Maestas's assertion that
insufficient evidence supported his conviction for second
degree burglary, we reverse the portion of the judgment
concerning that count and remand this case with instructions
that the division perform a de novo review of Maestas's
Facts and Procedural History
The charge at issue arose after a witness spotted someone
later identified as Maestas ringing the doorbell of an
elderly neighbor's home and then walking around the side
of the house and attempting to open the gate. The witness saw
Maestas ride his bicycle away and then return a few minutes
later, apparently attempting to walk around the home on the
other side. The witness called 911, and the police responded.
The responding officer walked between the two homes described
by the witness and saw Maestas. The officer pulled out his
gun, identified himself as a police officer, and ordered
Maestas to the ground. Maestas looked at the officer, froze
momentarily, and then ran away. The officer gave chase, but
he subsequently lost sight of Maestas and stopped chasing
him. The officer called for backup support, and the police
set up a perimeter in order to search for Maestas.
Shortly thereafter, a different neighbor approached one of
the officers who had arrived to assist. This neighbor
reported that he had heard someone try to open his front
door. The officer accompanied the neighbor back to his house
to look around. When they got to the neighbor's detached
garage, they noticed that the padlock on the door had been
broken. The officer investigated and found Maestas hiding
behind a couch in the garage. Investigating officers later
also discovered that the sliding glass door in the back of
the elderly neighbor's house had been opened, despite the
fact that she had left it closed the night before.
The prosecution charged Maestas with attempted second degree
burglary for opening the door of the elderly neighbor's
house and second degree burglary for Maestas's entry into
the garage with the intent to commit therein the crime of
obstructing a peace officer.
The case proceeded to trial, and at trial, Maestas requested
that the jury be instructed on the lesser non-included
offense of third degree trespass. The court granted that
At the close of the prosecution's case, Maestas moved for
a judgment of acquittal, arguing that the evidence was
insufficient to convict him of either attempted second degree
burglary or second degree burglary. The court denied that
motion. Thereafter, at the conclusion of all of the evidence,
Maestas again moved for a judgment of acquittal. The court
again denied the motion.
The jury ultimately convicted Maestas of all three charges
against him, and he appealed, arguing, as pertinent here,
that under the plain language of the burglary statute,
section 18-4-203(1), C.R.S. (2018), the crime of obstructing
a peace officer is not sufficient to establish the element of
"intent to commit therein a crime against another person
or property." Maestas, slip op. at 11.
In a split unpublished opinion, the division affirmed
Maestas's conviction on the burglary count. The majority
concluded that although Maestas had properly challenged the
sufficiency of the evidence by twice moving for a judgment of
acquittal in the trial court, he did not properly preserve
the precise argument that he was making on appeal.
Id. at 13. The majority therefore concluded that the
appropriate standard of review was for plain error and
proceeded to review Maestas's sufficiency claim pursuant
to that standard. Id. In conducting this review, the
majority assumed without deciding that the trial court had
erred by permitting Maestas to be convicted of second degree
burglary with the predicate offense of obstructing a peace
officer. Id. at 14. The majority determined,
however, that this error was not plain because at the time
Maestas was tried, the law on the issue was unsettled and
therefore any error could not have been obvious. Id.
The majority thus affirmed Maestas's conviction without
determining whether his alleged obstruction of a peace
officer sufficiently supported his conviction for second
degree burglary. Id. at 15, 21.
Judge Lichtenstein dissented. Id. at 22-24
(Lichtenstein, J., concurring in part and dissenting in
part). In her view, a plain error analysis of a sufficiency
claim like the one at issue leads to unjust results.
Id. at 23. She stated:
I simply cannot countenance that when, as here, a non-final
judgment of conviction is fundamentally unjust, an appellate
court can nonetheless decline to vacate that conviction.
Maestas's second degree burglary conviction is not based
on any legally cognizable crime. In my view, it is our
imperative to correct his fundamentally unjust conviction and
Maestas then petitioned this court for certiorari review, and
we granted his petition.
In McCoy v. People, ¶ 69, ____ P.3d ____ at,
which we are also announcing today, we conclude that
appellate courts should review sufficiency of the evidence
claims de novo, including when such claims are raised for the
first time on appeal and when they involve preliminary
questions of statutory construction. We explain that 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.
Id. at ¶¶ 2, 18-33.
For those same reasons, we conclude here that the majority
below erred in reviewing Maestas's sufficiency claim for
plain error and in affirming his burglary conviction without
reaching the merits of his contention that the evidence was
not legally sufficient to support that conviction.
Accordingly, we reverse the portion of the judgment upholding
Maestas's second degree burglary conviction, and we
remand with instructions that the division conduct a de novo
review of Maestas's contention that under the plain
language of the burglary statute, section 18-4-203(1), the
crime of obstructing a peace officer is not sufficient to
establish the element of "intent to commit therein a
crime against another person or property."
In light of this disposition, we need not address
Maestas's contention that the application of plain error