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People v. McEntee

Court of Appeals of Colorado, Fourth Division

September 5, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Joseph Lee McEntee, Defendant-Appellant.

          El Paso County District Court No. 15CR1774 Honorable William B. Bain, Judge.

          Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          TOW JUDGE.

         ¶ 1 A jury convicted defendant, Joseph Lee McEntee, of unlawful sexual contact. He appealed the judgment of conviction, and we affirmed. People v. McEntee, (Colo.App. No. 17CA0040, Nov. 1, 2018) (not published pursuant to C.A.R. 35(e) (McEntee I).

         ¶ 2 Our supreme court granted McEntee's petition for writ of certiorari on one issue - whether the State failed to prove beyond a reasonable doubt the necessary elements of felony unlawful sexual contact pursuant to section 18-3-404(1.5), C.R.S. 2018 - and denied the petition as to all other issues. The supreme court vacated that single part of the judgment[1] and remanded the case to us for reconsideration in light of its recent decision in McCoy v. People, 2019 CO 44.

         ¶ 3 After reconsidering that issue, we affirm the judgment.

         I. Background

         ¶ 4 In May or June 2014, McEntee approached his adolescent neighbor, L.S., and asked if he could see his "dick." L.S. told McEntee no, but McEntee moved closer and touched L.S.'s penis while trying to unzip his pants. L.S. then grabbed McEntee's hand and moved it away from him. McEntee tried again, placing his hand on L.S.'s pants over his penis for what L.S. described as "five minutes probably."

         ¶ 5 At the time of the incident, L.S. was fourteen years old, was "real small," and had been diagnosed with "pervasive development delay."

         ¶ 6 McEntee was charged with unlawful sexual contact in violation of section 18-3-404(1.5). At the conclusion of the People's case-in-chief, McEntee's counsel moved for a judgment of acquittal, "rest[ing] on the record at this time." The court denied the motion, and a jury ultimately convicted him as charged. The trial court sentenced him to sex offender intensive supervised probation for an indeterminate term of ten years to life.

         ¶ 7 McEntee now appeals his conviction.

         II. Felony Unlawful Sexual Contact

         ¶ 8 McEntee contends that the evidence was insufficient to support his conviction for unlawful sexual contact under section 18-3-404(1.5). Specifically, he argues that because the State did not prove that McEntee induced or coerced L.S. to engage in sexual contact "with another person" for McEntee's own ...


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