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 ...