Paso County District Court No. 15CR1774. Honorable William B.
J. Weiser, Attorney General, Grant R. Fevurly, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
A. Ring, Colorado State Public Defender, Katherine Brien,
Deputy State Public Defender, Denver, Colorado, for
JUDGE. Bernard, C.J., and Hawthorne, J., concur.
[¶ 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 and remanded the case to
us for reconsideration in light of its recent decision in
McCoy v. People, 442 P.3d 379, 2019 CO 44.
[¶3] After reconsidering that issue, we
affirm the judgment.
[¶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
[¶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 ...