Rehearing Denied June 24, 2019
Certiorari to the Colorado Court of Appeals, Court
of Appeals Case No. 11CA2084
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,
We granted certiorari to review the court of appeals
divisions opinion affirming Bob Maestass conviction for
second degree burglary. People v. Maestas, No.
11CA2084, 2015 WL 222407 (Colo.App. Jan. 15,
2015). We now reverse and remand for further
For the reasons discussed in McCoy v. People, 2019
CO 44, 442 P.3d 379, 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 Maestass sufficiency claim for plain error
and affirmed the trial courts ruling without considering the
merits of Maestass 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 Maestass sufficiency claim.
I. Facts and Procedural History
The charge at issue arose after a witness spotted someone
later identified as Maestas ringing the doorbell of an
elderly neighbors 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 neighbors 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 neighbors 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 neighbors house
and second degree burglary for Maestass 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 prosecutions 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
Maestass 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 Maestass 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 Maestass 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.
Maestass 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, 442 P.3d at 393, 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 ...