People v. McCoy

• Citation: 444 P.3d 766
• Decision Date: 18 June 2015
• Docket Number: Court of Appeals No. 11CA1795
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. David Lewis MCCOY, Defendant–Appellant.
• Court: Colorado Court of Appeals

444 P.3d 766

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.David Lewis MCCOY, Defendant–Appellant.

Court of Appeals No. 11CA1795

Colorado Court of Appeals, Division IV.

Announced June 18, 2015

As Modified on Denial of Rehearing December 3, 2015

Cynthia H. Coffman, Attorney General, Rebecca L. Williams, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Rachel C. Funez, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE FURMAN

¶ 1 Defendant, David Lewis McCoy, appeals the judgment of conviction entered after a jury found him guilty of four counts of unlawful sexual contact. He contends, for the first time on appeal, that section 18–3–404(1)(g), C.R.S. 2014, proscribes only conduct occurring in a physician-patient relationship and as part of a medical exam or medical treatment. Under this interpretation of section 18–3–404(1)(g), he contends that the prosecution presented insufficient evidence to sustain his convictions because he is not a physician. Alternatively, he contends that the statute's plain terms are unconstitutionally overbroad and vague. Because we disagree with each of his contentions, we affirm his judgment of conviction.

I. The Charged Crime

¶ 2 The prosecution charged McCoy with unlawful sexual contact against two men, P.K. and G.M., arising out of separate incidents. According to the victims, McCoy told them that he worked in the television industry. He invited the victims to contact him if they wanted to work for him, and, eventually, they both did so. McCoy brought each victim to his home and asked them questions about their backgrounds.

¶ 3 During P.K.'s interview, McCoy asked about P.K.'s sexual history. McCoy also asked to weigh P.K. and instructed him to take off his clothes. He then checked P.K.'s pulse by touching his groin and, during that process, touched P.K.'s genitals. McCoy "assured" P.K. that he was a physician and encouraged him to relax.

¶ 4 During G.M.'s interview, McCoy asked about G.M.'s sexual fantasies. The next day, G.M. began training at McCoy's home for what he thought was work in the television industry. This training lasted about one and a half weeks. During the training, McCoy insisted on inspecting G.M.'s feet. He also checked G.M.'s pulse, touching his wrist and thigh. McCoy asked G.M. to lie on his stomach so that he could look at his back. When G.M. did so, McCoy pulled down G.M.'s underwear and "spread [his] butt open." McCoy had previously told G.M. that he was a pediatrician.

II. Sufficiency of the Evidence

¶ 5 We first consider whether the prosecution presented insufficient evidence to sustain McCoy's convictions because, as McCoy contends, section 18–3–404(1)(g), proscribes only conduct occurring in a physician-patient relationship and as part of a medical exam or medical treatment.

A. Appellate Review of Sufficiency Arguments

¶ 6 A threshold question in this case is whether a claim that raises insufficiency of the evidence for the first time on appeal is subject to plain error review. For reasons we will discuss, we disagree with the majority in People v. Lacallo, 2014 COA 78, 338 P.3d 442, and conclude that sufficiency of the evidence claims are not governed by plain error review. See People in Interest of S.N–V., 300 P.3d 911, 914 (Colo. App. 2011) (one division of the court of appeals is not bound by the decision of another division (citing People v. Wolfe, 213 P.3d 1035, 1036 (Colo. App. 2009) )).

¶ 7 Appellate review of the sufficiency of the evidence is grounded in the Due Process Clause of the Fourteenth Amendment, which "protects a defendant in a criminal case against conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ " Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ); see Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010) (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781 ). Appellate review of the sufficiency of the evidence ensures that a judgment of conviction does not violate the principle that a defendant be convicted only when each element of the offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317–18, 99 S.Ct. 2781 ; People v. Heywood, 2014 COA 99, ¶ 45, 357 P.3d 201 (Gabriel, J., specially concurring).

¶ 8 Although McCoy moved for judgment of acquittal in the trial court, his motion did not articulate the statutory claim he makes on appeal, which relies on his interpretation of section 18–3–404(1)(g). For this reason, the People urge us to review his sufficiency claim for plain error. By contrast, McCoy contends that plain error review is inapplicable because he was not required to preserve this argument in the trial court. We agree with McCoy.

¶ 9 Our disagreement with the People is based on the premise that appellate courts apply plain error review to claims of "error" that were forfeited, and McCoy did not forfeit our review of his sufficiency claims.

¶ 10 A criminal defendant forfeits appellate review of a trial error by not timely raising such an error in the trial court. People v. Miller, 113 P.3d 743, 748–49 (Colo. 2005). Our supreme court in Miller explained:

In United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court held that unpreserved constitutional claims are subject to plain error analysis. In so doing, the Court reaffirmed the fundamental precept governing relinquishment of unpreserved claims: " ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ " Id .

Id.

¶ 11 Colorado's plain error rule, Crim. P. 52(b), is an exception to the forfeiture doctrine and provides an appellate court a limited power to correct errors that were forfeited because they were not timely raised in the trial court. See Olano, 507 U.S. at 731, 113 S.Ct. 1770. But, our supreme court has not held that a defendant forfeits appellate review of sufficiency claims that were not raised in the trial court. See, e.g., Morse v. People, 168 Colo. 494, 498, 452 P.2d 3, 5 (1969).

¶ 12 In Morse, the defendant raised several claims for the first time on appeal. Id. at 497–98, 452 P.2d at 5. One of these new claims alleged that there was insufficient evidence to support his conviction. Id . at 498, 452 P.2d at 5. Citing "the ‘contemporaneous objection’ rule and the requirement that error be preserved by raising the objection with particularity in the motion for a new trial," the court declined to address all of the new claims except one—the sufficiency claim. Id . (quoting Lucero v. People, 158 Colo. 568, 570, 409 P.2d 278, 279 (1965) ). The court addressed the defendant's new sufficiency claim "on the basis of the record now before [it]." Id .

¶ 13 Of course, as the special concurrence here points out, the Morse court did not articulate an exception to the forfeiture doctrine for sufficiency claims. But, the absence of such express language does not change the analysis that the court employed. And, that analysis was not affected by the defendant's failure to raise the claim at trial.

¶ 14 Consistent with Morse, divisions of this court have determined that a defendant need not preserve a sufficiency of the evidence claim by moving for a judgment of acquittal. See, e.g., People v. Randell, 2012 COA 108, ¶ 30, 297 P.3d 989 ("A defendant may challenge the sufficiency of the evidence on appeal without moving for a judgment of acquittal in the trial court."); People v. Garcia, 2012 COA 79, ¶ 35, 296 P.3d 285 ("[W]e reject the People's contention that Garcia failed to preserve his challenge to the sufficiency of the evidence because he did not move for a judgment of acquittal at trial."). The divisions in these cases did not apply a plain error standard of review. Randell, ¶ 29 ; Garcia , ¶ 34.

¶ 15 Before the majority's opinion in Lacallo, over thirty years had passed since two divisions of this court applied plain error review to a sufficiency claim. See People v. Harris, 633 P.2d 1095, 1099 (Colo. App. 1981) ; People v. Rice, 40 Colo.App. 357, 361, 579 P.2d 647, 650 (1978). Although the Lacallo majority premised the application of plain error review on the reliability of Harris and Rice, Harris and Rice are in tension with the supreme court's decision in Morse and applied plain error review based on a preservation requirement in Crim. P. 33(a) that no longer exists. See Lacallo, ¶ 11 ("[W]e join with Rice and Harris in applying the plain error standard of review...."). Because Harris and Rice relied on a now outdated version of Crim. P. 33(a), we discuss Harris, Rice, and Crim. P. 33(a) only to show that these cases and that rule no longer compel plain error review for sufficiency claims raised for the first time on appeal.

¶ 16 When Harris and Rice were decided, Colorado's rule governing motions for new trial, Crim. P. 33(a), required the party claiming error in the trial to "move the trial court for a new trial." Under that rule, "[o]nly questions presented in such motion [would] be considered by the appellate court on review." Id . Thus, under Crim. P. 33(a), as it existed until 1985, a defendant forfeited appellate review of a claim by not raising it in a motion for new trial.

¶ 17 Harris and Rice both noted a defendant's duty to preserve appellate claims in a motion for a new trial. Harris relied on Crim. P. 33(a) directly to support its decision to apply plain error review: "We note that defendant failed to raise [the sufficiency claim] in his motion for a new trial. The rule is that, absent plain error, such a failure bars consideration of the issue on appeal." 633 P.2d at 1099 (citing ...