McCoy v. People

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ADVANCE SHEET HEADNOTE
June 3, 2019

2019 CO 44

No. 15SC1095, McCoy v. People—Sufficiency of the Evidence—Standard of Review—
Statutory Construction—Unlawful Sexual Contact.

This case principally requires the court to determine the appropriate standard of

review for unpreserved claims of insufficient evidence and to apply that standard to

decide whether legally sufficient evidence supported the defendant’s convictions here.

The court initially concludes 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 unpreserved insufficiency claims de novo (i.e., in the same

manner as if the claims were preserved), and not under a plain error standard of review.

Such a rule is consistent with Colorado’s criminal procedure rules, long-standing

precedent, and the nature of sufficiency claims, including the settled principle that a

conviction that is based on legally insufficient evidence cannot stand.

Turning then to the merits of the defendant’s sufficiency claims, the court begins

by construing section 18-3-404(1)(g), C.R.S. (2018), which bars sexual contact committed

during treatment or examination for other than bona fide medical purposes or in a
manner substantially inconsistent with reasonable medical practices. After determining

that this provision is ambiguous, the court employs settled tools of statutory construction

and concludes that the provision applies to a doctor or other individual who is, or holds

himself or herself out to be, a health treatment provider of any kind, and who knowingly

subjects the victim to sexual contact while examining, treating, or purporting to examine

or treat the victim for other than a bona fide medical purpose or in a manner substantially

inconsistent with reasonable medical practices.

Finally, applying this construction here, the court concludes that the provision is

neither facially overbroad nor unconstitutionally vague and that the prosecution

presented sufficient evidence to support the defendant’s convictions.

Accordingly, the court affirms the division’s judgment, although its reasoning

differs in some respects from that of the division majority.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2019 CO 44

Supreme Court Case No. 15SC1095
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 11CA1795

Petitioner:

David Lewis McCoy,

v.

Respondent:

The People of the State of Colorado.

Judgment Affirmed
en banc
June 3, 2019

Attorneys for Petitioner:
Megan A. Ring, Public Defender
Jon W. Grevillius, Deputy Public Defender
Denver, Colorado

Attorneys for Respondent:
Philip J. Weiser, Attorney General
Melissa D. Allen, Senior Assistant Attorney General
Denver, Colorado

JUSTICE GABRIEL delivered the Opinion of the Court.
JUSTICE SAMOUR concurs in the judgment only, and CHIEF JUSTICE COATS and
JUSTICE BOATRIGHT join in the concurrence in the judgment only.
¶1 We granted certiorari to review the court of appeals division’s decision affirming

David McCoy’s convictions for two counts of unlawful sexual contact while engaged in

the treatment or examination of a victim for other than bona fide medical purposes, a

class four felony. People v. McCoy, 2015 COA 76M, __ P.3d __. This case principally

requires us to determine the appropriate standard of review for unpreserved claims of

insufficient evidence and to apply that standard to decide whether legally sufficient

evidence supported McCoy’s convictions here.1

¶2 We initially conclude, as did the majority below, 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 unpreserved insufficiency claims de novo

(i.e., in the same manner as if the claims were preserved), and not under a plain error

standard of review. Such a rule is consistent with our criminal procedure rules,

1 Specifically, we granted certiorari to review the following issues:
1. Whether the court of appeals erred in concluding section 18-3-404(1)(g), C.R.S.
(2016), is not limited to conduct that occurs within a physician-patient relationship
or during a medical treatment or medical examination.
2. Whether the court of appeals’ interpretation of section 18-3-404(1)(g) renders the
statute unconstitutionally overbroad.
3. Whether the court of appeals’ interpretation of section 18-3-404(1)(g) renders the
statute unconstitutionally vague.
4. Whether the court of appeals correctly concluded that sufficiency of the evidence
claims are not subject to plain error review.
5. Whether the court of appeals erred in concluding that the prosecution presented
sufficient evidence to sustain the defendant’s two convictions under section
18-3-404(1)(g).

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long-standing precedent, and the nature of sufficiency claims, including the settled

principle that a conviction that is based on legally insufficient evidence cannot stand.

¶3 Turning then to the merits of McCoy’s sufficiency claims, we begin by construing

section 18-3-404(1)(g), C.R.S. (2018), which bars sexual contact committed during

treatment or examination for other than bona fide medical purposes or in a manner

substantially inconsistent with reasonable medical practices. After determining that this

provision is ambiguous, we employ settled tools of statutory construction and conclude

that the provision applies to a doctor or other individual who is, or holds himself or

herself out to be, a health treatment provider of any kind, and who knowingly subjects

the victim to sexual contact while examining, treating, or purporting to examine or treat

the victim for other than a bona fide medical purpose or in a manner substantially

inconsistent with reasonable medical practices.

¶4 Finally, applying this construction here, we conclude that the provision is neither

facially overbroad nor unconstitutionally vague and that the prosecution presented

sufficient evidence to support McCoy’s convictions.

¶5 Accordingly, we affirm the division’s judgment, although our reasoning differs in

some respects from that of the division majority.

I. Facts and Procedural Background

¶6 The charges at issue stemmed from McCoy’s interactions with two young men,

P.K. and G.M., who met with McCoy believing that they were interviewing and training

for possible jobs with him.

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¶7 When the young men first met McCoy, P.K. was in his mid-twenties, G.M. was in

his late teens or early twenties, and both had other jobs. McCoy told them that he worked

in the television or film and broadcast industry, and he gave each of them a business card,

telling at least P.K. that if he had any interest in working for McCoy, he should call. Each

of the young men eventually contacted McCoy about the possibility of a job with his

purported company, and McCoy subsequently had them come to his apartment for what

he represented would be job interviews and initial training.

¶8 When McCoy arrived at his apartment with each of the young men, he took and

held onto their identification papers and began a lengthy “interview” process. McCoy’s

questions ultimately became personal, including questions about the young men’s prior

relationships and their sexual experiences and fantasies.

¶9 At some point during each of these meetings, McCoy told the young men that he

needed to conduct a physical examination of them, allegedly to make sure that they were

physically fit and able to do the supposed job. Before and during these physical

examinations, McCoy told the men that he had been trained in a medical field, although

the details of what he said differed in some respects (e.g., he apparently said, at different

times, that he was a physician, a pediatrician, and a Harvard-trained psychologist). These

physical examinations eventually became sexual in nature, and McCoy had the men

remove parts of their clothing; took their pulses in their groin areas; touched, moved, or

examined their genitals or the area right next to their genitals; and touched their buttocks.

¶10 The police became involved in 2009, when P.K. contacted them following his

encounter with McCoy. The prosecution subsequently charged McCoy with, as pertinent

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here, two counts of unlawful sexual contact, based on the above-described conduct

involving P.K. and G.M. The case ultimately proceeded to trial, and a jury convicted

McCoy as charged.

¶11 McCoy then appealed, arguing that section 18-3-404(1)(g) proscribes only conduct

occurring in a physician-patient relationship and as part of a medical examination or

medical treatment. McCoy, ¶ 1. Applying this interpretation, he contended that because

he was not a physician, the prosecution had presented insufficient evidence to sustain his

convictions. Id.

¶12 The People responded by first contending that because McCoy had not preserved

his sufficiency claim, the division should consider the issue only for plain error. The

People then contended that under this plain error standard, McCoy’s conviction should

be upheld.

¶13 In a split published opinion, the division affirmed. Id. Rejecting the People’s

argument regarding the standard of review, the division first concluded that appellate

courts review claims of insufficient evidence de novo, even if the defendant did not raise

such claims at trial. Id. at ¶¶ 6–37. Proceeding then to interpret section 18-3-404(1)(g) in

light of this standard, the division concluded that the provision unambiguously applied

to someone in McCoy’s position because the statutory language did not restrict the

provision’s application to medical professionals or those claiming to be medical

professionals but rather applied to “any actor.” Id. at ¶¶ 41, 45. The division thus

concluded that the prosecution had presented sufficient evidence to sustain McCoy’s

convictions. Id. at ¶ 47.

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¶14 Judge Webb specially concurred, disagreeing with the majority on the question of

the standard of review to be applied to an unpreserved sufficiency claim. Id. at ¶¶ 81,

88–89 (Webb, J., specially concurring). In his view, the plain error standard should apply

to unpreserved sufficiency claims, although he opined that review under that standard

would lead to a different result from de novo review only when (1) a threshold question

of statutory interpretation must be answered before the sufficiency of the evidence can

be determined, (2) this question was created solely by appellate counsel, and (3) the issue

fails the obviousness requirement of plain error analysis because the statute does not

include common terms or its language has never been interpreted. Id. at ¶ 70. In Judge

Webb’s view, only in this circumstance, which he predicted would rarely arise, could an

appellate court begin its analysis with obviousness rather than sufficiency. Id. Applying

this analysis, Judge Webb opined that McCoy had not met the obviousness prong of the

plain error standard, and, thus, he would have affirmed McCoy’s convictions without

reaching the merits of McCoy’s sufficiency challenge. Id. at ¶¶ 105–07.

¶15 McCoy then petitioned this court for certiorari review, and we granted his petition.

II. Analysis

¶16 We begin by discussing the appropriate standard of review to be used by appellate

courts when considering unpreserved sufficiency of the evidence claims. 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

unpreserved sufficiency claims de novo (i.e., in the same manner as if the claims were

preserved). We next proceed to conduct that review in this case. This review requires us

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first to determine the scope of section 18-3-404(1)(g) and specifically whether it

(1) proscribes conduct only within the context of the physician-patient relationship, as

McCoy contends; (2) covers the conduct of other treatment providers and individuals

who falsely hold themselves out to be doctors or treatment providers; or (3) covers

conduct by any actor, as the People assert and the division below determined. We

conclude that the statute covers doctors, other treatment providers, and those holding

themselves out to be doctors or healers. Based on this interpretation, we address McCoy’s

contentions that the statute is facially overbroad and unconstitutionally vague, and we

reject both arguments. Finally, we consider whether the prosecution presented sufficient

evidence to support McCoy’s unlawful sexual contact convictions, and we conclude that

it did.

A. Standard of Review

¶17 For many years, divisions of the court of appeals had consistently concluded that

appellate courts review sufficiency of the evidence claims de novo, regardless of whether

the defendant preserved the sufficiency claim by way of a motion for judgment of

acquittal or a motion for a new trial. See, e.g., People v. Randell, 2012 COA 108, ¶¶ 29–30,

297 P.3d 989, 997–98 (“We review de novo whether the evidence is sufficient to support

a conviction. A defendant may challenge the sufficiency of the evidence on appeal

without moving for a judgment of acquittal in the trial court.”); People v. Gregg, 298 P.3d

983, 987 (Colo. App. 2011) (“We review de novo whether sufficient evidence supports a

verdict.”); People v. Gibson, 203 P.3d 571, 575 (Colo. App. 2008) (same).

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¶18 Beginning with People v. Lacallo, 2014 COA 78, ¶ 24, 338 P.3d 442, 449, however,

divisions have divided over the proper standard of review to be applied to a defendant’s

unpreserved sufficiency claim. Compare, e.g., People v. Johnson, 2017 COA 11, ¶ 11, __ P.3d

__ (concluding that plain error analysis does not apply to unpreserved sufficiency claims

premised on a question of law), and People v. Sandoval, 2016 COA 14, ¶ 30, 409 P.3d 425,

429 (concluding that sufficiency claims are not governed by plain error review), with

People v. Heywood, 2014 COA 99, ¶ 9, 357 P.3d 201, 205 (concluding that unpreserved

sufficiency claims will be reversed only for plain error), and Lacallo, ¶ 24, 338 P.3d at 449

(same).

¶19 For a number of reasons, we now conclude that sufficiency claims may be raised

for the first time on appeal and are not subject to plain error review, and therefore,

appellate courts should review unpreserved sufficiency claims de novo (i.e., in the same

manner as if the claims were preserved).

¶20 First, “the Due Process Clause protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). When a defendant

challenges the sufficiency of the evidence, he or she is asserting that the prosecution has

not proven every fact necessary to establish the crime at issue, and thus, it has not

established that the defendant, in fact, committed a crime. Appellate review of such a

claim thus serves to protect an essential component of due process, namely, that “no

person shall be made to suffer the onus of a criminal conviction except upon sufficient

proof,” Jackson v. Virginia, 443 U.S. 307, 316 (1979), and we do not believe that plain error

8
review could, consistent with due process, result in the affirmance of a conviction that

was unsupported by legally sufficient evidence.

¶21 Second, requiring a defendant to preserve a sufficiency of the evidence claim,

either by way of a motion for judgment of acquittal or a motion for a new trial, is

inconsistent with our rules of criminal procedure. Nothing in those rules requires a

criminal defendant to file a motion for a judgment of acquittal in order to preserve an

issue for appellate review, and we perceive a challenge to the prosecution’s completed

evidence to be different in kind from trial errors (e.g., in the admission of evidence or in

jury instructions), which allow a court to avoid an error before it occurs. Nor do the rules

require a defendant to file a motion for a new trial to preserve a sufficiency claim for

appellate review. To the contrary, Crim. P. 33(a) provides that a party claiming error in

the trial of a case “need not raise all the issues it intends to raise on appeal in [a motion

for a new trial] to preserve them for appellate review.”

¶22 Third, a defendant effectively challenges the sufficiency of the evidence presented

at trial by contesting that evidence at the trial, and we perceive no purpose in requiring

a party to pursue some other form of objection directed to the evidence as a whole. See

People v. McCullough, 298 P.3d 860, 865 (Cal. 2013) (“Parties may generally challenge the

sufficiency of the evidence to support a judgment for the first time on appeal because

they ‘necessarily objected’ to the sufficiency of the evidence by ‘contesting [it] at trial.’”)

(quoting People v. Gibson, 33 Cal. Rptr. 2d 217, 218 (Cal. Ct. App. 1994)).

¶23 Fourth, in our view, principles of stare decisis support de novo review here. To

the extent that this court has previously discussed the issue presented here, we have

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consistently opined or at least suggested that preservation is not required. See, e.g.,

Morse v. People, 452 P.2d 3, 5 (Colo. 1969) (noting that the court could adequately review

a sufficiency of the evidence claim based on the record before it even though the issue

had not been raised in the trial court); see also People v. Roggow, 2013 CO 70, ¶ 13, 318 P.3d

446, 450 (stating, without discussing whether the sufficiency claim at issue had been

preserved, that the court reviews questions relating to the sufficiency of the evidence de

novo); Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010) (same).

¶24 Likewise, as noted above, prior to Lacallo, divisions of our court of appeals

consistently concluded that sufficiency of the evidence claims could be raised for the first

time on appeal and were not subject to plain error review, but rather would be reviewed

de novo, in the same manner as if the claims had been preserved. Numerous out-of-state

authorities have long reached the same conclusion. See, e.g., McCullough, 298 P.3d at 865

(noting that parties may generally challenge the sufficiency of the evidence for the first

time on appeal); State v. Lewis, 36 A.3d 670, 675 n.4 (Conn. 2012) (observing that an

unpreserved sufficiency claim would be reviewed in the same manner as any properly

preserved claim because a defendant found guilty on the basis of insufficient evidence

has been deprived of a constitutional right); Darst v. State, 746 S.E.2d 865, 870 n.8 (Ga. Ct.

App. 2013) (“Because due process requires the existence of sufficient evidence as to every

element of the crime of which a defendant is convicted, the fact that this issue was not

explicitly raised does not prevent us from addressing (nor, more importantly, does it

justify a refusal to address) the issue at this juncture.”) (citation omitted); State v. Wright,

295 P.3d 1016, 1017 n.1 (Idaho Ct. App. 2013) (noting that “sufficiency of the evidence

10
may be raised for the first time on appeal”); People v. Space, 103 N.E.3d 1019, 1027–28 (Ill.

App. Ct. 2018) (rejecting the state’s argument that the defendant had forfeited his

sufficiency of the evidence claim by not raising it by objection or in a post-trial motion,

and stating that the claim may be raised for the first time on direct appeal); Baker v. State,

967 N.E.2d 1037, 1043 (Ind. Ct. App. 2012) (noting that the defendant was not required to

object at trial in order to preserve an appellate argument that the evidence was

insufficient to support an element of the offense or sustain the defendant’s conviction);

State v. Foster, 312 P.3d 364, 368 (Kan. 2013) (observing that review of sufficiency

questions does not require the court to engage in a “preservation inquiry”);

Commonwealth v. Garrett, 41 N.E.3d 28, 31 (Mass. 2015) (reviewing a sufficiency claim for

the first time on appeal because a conviction based on legally insufficient evidence is

inherently serious enough to create a substantial risk of a miscarriage of justice); People v.

Williams, 811 N.W.2d 88, 93 (Mich. Ct. App. 2011) (“A defendant need not take any action

to preserve a challenge to the sufficiency of the evidence.”); State v. Litzau, 893 N.W.2d

405, 409 (Minn. Ct. App. 2017) (reviewing an unpreserved sufficiency claim that was

premised on an issue of statutory construction because the interests of justice required

such review, given that, “[i]f appellant’s conduct is not criminal under the statute

pursuant to which he is charged, then we cannot properly affirm the conviction on

forfeiture grounds”); State v. Sutton, 419 P.3d 1201, 1205 n.3 (Mont. 2018) (“[S]ufficiency

of the evidence may be challenged on appeal even if the issue is not raised by the

defendant at trial.”); State v. Scott, 185 P.3d 1081, 1083 (N.M. Ct. App. 2008) (“[I]f the

evidence is insufficient to legally sustain one of the elements of a crime, the error is

11
fundamental and may be raised for the first time on appeal.”); State v. Electroplating, Inc.,

990 S.W.2d 211, 220 (Tenn. Crim. App. 1998) (“[N]othing in the rules requires the

defendant to raise the sufficiency of the evidence either in a motion for judgment of

acquittal or in the motion for new trial in order to preserve the issue for appellate

review.”), abrogated in part on other grounds by State v. King,

No. M2012-00236-CCA-R3-CD, 2013 WL 793588, at *7 (Tenn. Crim. App. Mar. 4, 2013),

aff’d, 432 S.W.3d 316 (Tenn. 2014); Prichard v. State, 533 S.W.3d 315, 320 (Tex. Crim. App.

2017) (“[B]ecause a legal-sufficiency challenge need not be preserved by objection in a

trial court, appellant was permitted to present that complaint in the first instance to the

court of appeals.”); State v. Cardenas-Flores, 374 P.3d 1217, 1224 (Wash. Ct. App. 2016)

(“[I]t is well established that a claim of insufficient evidence in support of a conviction is

an issue of constitutional magnitude that an appellant may raise . . . for the first time on

appeal.”), aff’d, 401 P.3d 19 (Wash. 2017); Haskell v. State, 422 P.3d 955, 963 (Wyo. 2018)

(noting that the court does not apply waiver to a claim that the evidence was legally

insufficient to support the defendant’s conviction because the proposition that a

defendant’s guilt must be established by competent evidence proving each element of the

crime at issue invokes a fundamental right).

¶25 And even jurisdictions that purport to review unpreserved sufficiency claims for

plain error have routinely concluded that convictions based on legally insufficient

evidence necessarily constitute plain error. See, e.g., State v. Rhome, 333 P.3d 786, 787

(Ariz. Ct. App. 2014) (“Fundamental error therefore occurs when a person is convicted of

‘a crime when the evidence does not support a conviction.’”) (quoting State v. Stroud,

12
103 P.3d 912, 914 n.2 (Ariz. 2005)); State v. Puaoi, 891 P.2d 272, 278 (Haw. 1995) (“A

conviction based on insufficient evidence of any element of the offense charged is a

violation of due process and thus constitutes plain error.”); State v. Drake, 514 S.W.3d 633,

636 (Mo. Ct. App. 2017) (“If the evidence is insufficient to sustain a conviction, plain error

affecting substantial rights is involved from which manifest injustice must have

resulted.”) (quoting State v. Whalen, 49 S.W.3d 181, 184 (Mo. 2001)); State v. Sepulveda,

71 N.E.3d 1240, 1243 (Ohio Ct. App. 2016) (“‘[W]hether a sufficiency of the evidence

argument is reviewed under a prejudicial error standard or under a plain error standard

is academic.’ Regardless of the standard used, ‘a conviction based on legally insufficient

evidence constitutes a denial of due process,’ and constitutes a manifest injustice.”)

(quoting City of Perrysburg v. Miller, 795 N.E.2d 690, 700 (Ohio Ct. App. 2003), and State v.

Thompkins, 678 N.E.2d 541, 546 (Ohio 1997)).

¶26 Finally, we see no basis to require preservation in a case in which a question of

statutory interpretation must be resolved before a defendant’s claim of insufficient

evidence can be decided. Whether or not the matter involves an issue of statutory

interpretation, a case raising a sufficiency of the evidence challenge ultimately requires a

court to decide whether the defendant committed any crime at all. Thus,

[a]n appellate court properly considers issues of statutory construction not
raised to the district court in cases where statutory construction is essential
to evaluating whether the evidence is sufficient to support a conviction.
Even though appellant failed to raise this statutory-construction argument
to the district court, we address the argument on its merits because it raises
a sufficiency-of-the-evidence question, and the interests of justice require
us to address it. If appellant’s conduct is not criminal under the statute
pursuant to which he is charged, then we cannot properly affirm the
conviction on forfeiture grounds.

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Litzau, 893 N.W.2d at 409; see also Wright, 295 P.3d at 1017–19 (addressing an unpreserved

sufficiency claim and concluding that the prosecution presented insufficient evidence to

support the defendant’s conviction pursuant to the correct interpretation of the statute at

issue, which interpretation the defendant proffered for the first time on appeal).

¶27 For all of these reasons, 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 unpreserved sufficiency claims de novo (i.e.,

in the same manner as if the claims were preserved), including when such claims involve

preliminary questions of statutory construction.

¶28 In reaching this conclusion, we are unpersuaded by the People’s contention that

preservation should be required at least in cases in which an unpreserved sufficiency

claim turns on a question of statutory interpretation because requiring preservation in

those circumstances would avoid unfair surprise to the prosecution. “Prosecutorial

discretion to bring or not bring charges is extraordinarily wide,” People v. Weiss, 133 P.3d

1180, 1189 (Colo. 2006), and we perceive no unfairness in requiring prosecutors to know

the elements of the crime that they choose to charge and to determine whether or not they

can prove those elements beyond a reasonable doubt, see Standards for Criminal Justice,

Std. 3-4.3 (Am. Bar Ass’n, 2015) (“A prosecutor should seek or file criminal charges only

if the prosecutor reasonably believes that the charges are supported by probable cause,

that admissible evidence will be sufficient to support conviction beyond a reasonable

doubt, and that the decision to charge is in the interests of justice.”).

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¶29 Nor are we persuaded by the People’s contentions that adopting a plain error

standard here would (1) give trial courts the opportunity to correct the errors at trial and

would ensure a just outcome and promote judicial efficiency; (2) give notice to the parties

and trial courts that while their recollections are freshest, they need to make a complete

record for purposes of appellate review; (3) provide an opportunity for trial courts to

consider the issue, make any necessary findings, and offer an opinion on how it should

be resolved from the perspective of a trial court judge; (4) disincentivize parties from

engaging in gamesmanship and encourage them to work to obtain a fair and accurate

trial the first time around; and (5) promote the interests of finality.

¶30 The People cite to a number of cases in which courts have reviewed unpreserved

constitutional errors under the plain error standard. See, e.g., Puckett v. United States,

556 U.S. 129, 133–43 (2009) (concerning a forfeited claim of breach of a plea agreement);

Wainwright v. Sykes, 433 U.S. 72, 86–91 (1977) (concerning a forfeited challenge to a

confession); Martinez v. People, 2015 CO 16, ¶¶ 13–15, 344 P.3d 862, 867–68 (concerning a

forfeited claim of instructional error). None of these cases, however, involved a claim of

insufficient evidence of guilt. Moreover, it is not clear to us that the adoption of a plain

error standard of review in this context would, in fact, ensure a just outcome and promote

judicial efficiency. To the contrary, such a standard would merely postpone the issue

(and, in meritorious cases, a just outcome) until the matter is raised during

post-conviction proceedings. See Lacallo, ¶ 71, 338 P.3d at 456–57 (Román, J., concurring

in part and dissenting in part).

15
¶31 Nor do we agree that district court findings on sufficiency claims would

necessarily assist in appellate review, either by allowing for the creation of a more

complete record or by allowing trial courts to make additional findings and opine on how

a legal issue should be resolved. As an initial matter, we note that, at the time a

sufficiency issue is raised—whether during or after trial—the prosecution’s case-in-chief

has been completed, and we do not believe that we should adopt a preservation rule

solely for the purpose of giving the prosecution a second chance to put on evidence that

it should have introduced before it rested its case. In addition, to the extent that the

sufficiency issue raises a purely legal question (e.g., of statutory construction), an

appellate court, which would review that question de novo in any event, is in as good a

position as the trial court to address the issue. And in considering preserved sufficiency

claims, appellate courts must review the record de novo to determine whether the

evidence was substantial and sufficient to sustain the conviction. Clark, 232 P.3d at 1291.

The People make no persuasive argument as to why the same review is not equally

feasible in cases involving unpreserved sufficiency claims.

¶32 We likewise do not agree that without a preservation requirement, defense

counsel will engage in “gamesmanship,” withholding viable motions for judgments of

acquittal or new trials in order to take a chance on obtaining a vacation of the conviction

on appeal. As we recently observed, “The assumption that any competent attorney

would withhold a meritorious argument at trial in the hope of having something to argue

on appeal if the trial goes badly belies reality.” Bondsteel v. People, 2019 CO 26, ¶ 28,

439 P.3d 847, 852.

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¶33 Lastly, we conclude that even a justified concern for finality in criminal cases must

yield to the paramount interests of justice. Our procedural rules exist both to “protect

the innocent from an unjust conviction [and], of equal importance, to preserve the

integrity of society itself by keeping sound and wholesome the process by which it visits

its condemnation on a wrongdoer.” People v. Germany, 674 P.2d 345, 349 (Colo. 1983).

¶34 Accordingly, we conclude that Colorado appellate courts should review

sufficiency claims de novo, even when the defendant raises such issues for the first time

on appeal and even if consideration of the issue involves a preliminary question of

statutory construction. To the extent that Lacallo, Heywood, and other cases from divisions

of the court of appeals have concluded otherwise, we overrule those cases.

¶35 Having thus determined the appropriate standard of review, we turn to the merits

of McCoy’s sufficiency claims.

B. Interpretation of Section 18-3-404(1)(g)

¶36 McCoy contends that the evidence was legally insufficient to support his

convictions for unlawful sexual contact under section 18-3-404(1)(g) because, in his view,

the statute required the prosecution to prove—and it did not prove—that he was a

physician and had performed a medical examination or treatment on either victim or that

either victim had submitted to the sexual contact under the belief that he was receiving a

medical examination or medical treatment. To resolve this issue, we must first construe

the pertinent statutory provision.

¶37 We review issues of statutory interpretation de novo. Doubleday v. People, 2016 CO

3, ¶ 19, 364 P.3d 193, 196. In construing a statute, our primary purpose is to ascertain and

17
give effect to the legislature’s intent. Id. To do so, we look first to the language of the

statute, giving its words and phrases their plain and ordinary meanings. Id. We read

statutory words and phrases in context, and we construe them according to the rules of

grammar and common usage. Id.

¶38 We must also endeavor to effectuate the purpose of the legislative scheme. In

doing so, we read that scheme as a whole, giving consistent, harmonious, and sensible

effect to all of its parts, and we must avoid constructions that would render any words or

phrases superfluous or lead to illogical or absurd results. Id. at ¶ 20, 364 P.3d at 196. If

the statute is unambiguous, then we need look no further. Id. If, however, the statute is

ambiguous, then we may consider other aids to statutory construction, including the

consequences of a given construction, the end to be achieved by the statute, and the

statute’s legislative history. Bostelman v. People, 162 P.3d 686, 690 (Colo. 2007). A statute

is ambiguous when it is reasonably susceptible of multiple interpretations. People v.

Opana, 2017 CO 56, ¶ 35, 395 P.3d 757, 764.

¶39 Section 18-3-404(1)(g) provides, “Any actor who knowingly subjects a victim to

any sexual contact commits unlawful sexual contact if: . . . The actor engages in treatment

or examination of a victim for other than bona fide medical purposes or in a manner

substantially inconsistent with reasonable medical practices.”

¶40 The People assert, and the division concluded, that this provision is unambiguous

and that it applies when any actor subjects the victim to sexual contact, regardless of

whether that actor is a medical professional or the actor and victim are in a physician-

patient relationship. McCoy, ¶¶ 44–46.

18
¶41 McCoy, in contrast, contends that the provision is ambiguous because it does not

indicate whether the terms “treatment” and “examination” should be defined broadly,

pursuant to standard dictionary definitions, or narrowly, so as to contemplate only

medical examinations and examinations by those purporting to be medical practitioners.

In McCoy’s view, the terms must be defined narrowly because if they were defined

broadly—e.g., to mean “to look over: inspect visually or by use of other senses,” Examine,

Webster’s Third New Internat’l Dictionary (2002)—then the statute would prohibit

consensual looking and touching between a consenting couple who were role-playing

during sex.

¶42 In our view, the statutory language is reasonably susceptible of multiple

interpretations. As the People say, the plain language of the statute broadly refers to “any

actor” who engages in the prohibited conduct, and thus, the statute can be read to apply

more broadly than just to physician-patient relationships. Similarly, the statute specifies

a concern for examinations “for other than bona fide medical purposes or in a manner

substantially inconsistent with reasonable medical practices.” § 18-3-404(1)(g). This

language, too, can be read as reaching beyond legitimate medical examinations

performed by a physician.

¶43 As McCoy asserts, however, the statutory language could also reasonably be read

to apply just to medical professionals, albeit ones performing inappropriate

examinations. And as McCoy points out, although certain conduct proscribed by the

statute requires the prosecution to prove that the victim did not consent, see, e.g.,

19
§ 18-3-404(1)(a), section 18-3-404(1)(g) does not contain such a limitation and can be read

to include at least some consensual conduct.

¶44 In light of the foregoing, we conclude that the statute is ambiguous, and we

therefore turn to other statutory construction aids, most notably the statute’s extensive

legislative history, to assist us in determining the legislature’s intent. See Bostelman,

162 P.3d at 690.

¶45 The General Assembly added the provision at issue as part of a comprehensive

rewriting of Colorado’s sexual assault statutes. Hearing on H.B. 1042 before the

H. Judiciary Comm., 50th Gen. Assemb., 1st Sess. (Jan. 28, 1975) (statement of Richard

Wood, Denver District Attorney’s Office, explaining the purpose of the bill). The bill’s

sponsors stated that they were seeking to bring the laws up to date and to “try and give

the victim a fairer break than the victim has had in the past.” Id. As part of this endeavor,

the sponsors sought to address unique situations, such as in a physician-patient

relationship in which a doctor uses no physical force to compel a victim’s submission to

a sexual offense but rather uses fraud to persuade the victim to consent. Id. (question of

Representative Bendelow); accord Hearing on H.B. 1042 before the Subcomm. on

H.B. 1042, H. Judiciary Comm., 50th Gen. Assemb., 1st Sess. (Feb. 17, 1975) (statements

of Mike Stern, Colorado District Attorneys Association, and Representative Bendelow).

¶46 Several legislators also observed that this provision sought to cover not only

doctors but also other types of “healers” (including faith healers, dentists, and social

workers) and people who pretend to be doctors and who use the ruse of a medical

examination to commit a sexual offense. Id. (statements of Representative Bendelow and

20
Richard Wood, Denver District Attorney’s Office); Hearing on H.B. 1042, Subcomm. on

H.B. 1042, H. Judiciary Comm., 50th Gen. Assemb., 1st Sess. (Feb. 19, 1975) (statements

of Representative Bendelow and Richard Wood, Denver District Attorney’s Office);

Hearing on H.B. 1042, Subcomm. on H.B. 1042, H. Judiciary Comm., 50th Gen. Assemb.,

1st Sess. (Feb. 24, 1975) (statements of Representative Bendelow and David Gilbreth,

Colorado District Attorneys Association).

¶47 As Representative Bendelow explained:

The word “medical” used to be in there. We used to say, “the actor engages
in medical treatment.” We took it out to deal with a faith healer or
somebody using the ruse of some kind of medical treatment. We were
afraid that someone could imply that they were a doctor when in fact they
were not, and not be picked up. So anybody who engages in this kind of
medical treatment which is inconsistent with reasonable medical practices
could be picked up by this.

Hearing on H.B. 1042, H. Judiciary Comm., 50th Gen. Assemb., 1st Sess. (Feb. 27, 1975)

(statement of Representative Bendelow).

¶48 This legislative history thus makes clear that in adopting the provision at issue,

the General Assembly intended it to cover not only doctors and physician-patient

relationships but also others who are, or hold themselves out to be, health treatment

providers of any kind.

¶49 Our conclusion in this regard finds further support in the tenet of statutory

construction requiring that we construe statutes “in a manner consistent with

constitutional requirements whenever such a construction is reasonable and practical.”

People v. Roybal, 618 P.2d 1121, 1125 (Colo. 1980). As McCoy contends, a broad

interpretation of section 18-3-404(1)(g) to cover, without limitation, “any actor” could

21
potentially be read to encompass at least some consensual sexual behavior between

adults. Such a result, however, would be unconstitutional. Cf. Lawrence v. Texas, 539 U.S.

558, 567, 577–79 (2003) (concluding that a Texas statute making it a crime for two persons

of the same sex to engage in certain intimate sexual conduct was unconstitutional as

applied to two men who had engaged in a consensual act of sodomy in the privacy of

their home because, among other things, such laws touch upon “the most private human

conduct, sexual behavior, and in the most private of places, the home”).

¶50 Applying the foregoing tools of statutory construction here, we conclude that

section 18-3-404(1)(g) governs doctors and others who are, or hold themselves out to be,

health treatment providers of any kind and who examine, treat, or purport to examine or

treat victims for other than bona fide medical purposes or in a manner substantially

inconsistent with reasonable medical practices. Such a construction gives meaning to all

of the statutory language, is consistent with the legislature’s intent, and avoids

interpreting the statute in such a way as to lead to absurd or unconstitutional results.

¶51 In so concluding, we are unpersuaded by the People’s contention that the General

Assembly’s decision to amend section 18-3-402(1)(g), C.R.S. (2018), to limit it to those

“purporting to offer a medical service” means that the legislature necessarily intended

for section 18-3-404(1)(g) to cover a broader range of conduct.

¶52 Section 18-3-402(1)(g) concerns the crime of sexual assault and provides that an

actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits

sexual assault if the actor, “while purporting to offer a medical service,” engages in

treatment or an examination of the victim for other than bona fide medical purposes or

22
in a manner substantially inconsistent with reasonable medical practices. That section

previously had language identical to the language at issue in this case, but in 2000, the

General Assembly amended the provision to add the “purporting to offer a medical

service” language quoted above. See Ch. 171, sec. 18, § 18-3-402(1)(g), 2000 Colo. Sess.

Laws 692, 699.

¶53 In light of the above-described legislative history of section 18-3-404(1)(g), it is not

clear to us why the legislature did not make a corresponding change to that section.

Unlike the People, however, absent any evidence to the contrary, we are unwilling to

assume that the absence of such a change was intentional and was not the product of

legislative oversight.

¶54 Accordingly, we conclude that section 18-3-404(1)(g) applies to doctors and others

who are, or hold themselves out to be, health treatment providers of any kind. With this

construction in mind, we proceed to address McCoy’s overbreadth and vagueness

challenges, as well as the merits of his sufficiency claims.

C. Overbreadth

¶55 McCoy asserts that the division majority’s interpretation of section 18-3-404(1)(g)

renders that provision unconstitutionally overbroad because the majority’s construction

would sweep in a substantial amount of constitutionally protected conduct. We are not

persuaded.

¶56 “The overbreadth doctrine addresses the concern that the scope of a law may be

so broad that it restricts speech protected by the First Amendment or has a chilling effect

23
on such constitutionally protected speech.” People v. Graves, 2016 CO 15, ¶ 12, 368 P.3d

317, 322.

¶57 In considering a facial challenge to a statute on the ground that it is overbroad,

courts first must determine “whether the enactment reaches a substantial amount of

constitutionally protected conduct. If it does not, then the overbreadth challenge must

fail.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982).

Courts are reluctant to strike down a statute on its face and will apply the overbreadth

doctrine “only as a last resort.” Graves, ¶ 13, 368 P.3d at 323 (quoting New York v. Ferber,

458 U.S. 747, 769 (1982)). “[I]f a limiting construction or partial invalidation will confine

the statute to sufficiently narrow applications, the court should apply such a construction

or partial invalidation to preserve the statute’s constitutionality.” Id. at ¶ 16, 368 P.3d at

324.

¶58 Here, based on our construction of section 18-3-404(1)(g), we conclude that the

statute is not unconstitutionally overbroad. Under our construction, private, consensual

sexual conduct between adults is not implicated by the statute. Rather, the statute only

precludes, as pertinent here, conduct in which one party falsely induces a victim to

consent to sexual contact under the guise of purported health treatment or examination.

D. Vagueness

¶59 For similar reasons, we reject McCoy’s vagueness challenge to the statute.

¶60 “A law that . . . satisfies the overbreadth test may nevertheless be challenged on

its face as unduly vague, in violation of due process.” Vill. of Hoffman Estates, 455 U.S. at

497. A criminal statute is unconstitutionally vague when it “fails to give ordinary people

24
fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary

enforcement.” Johnson v. United States, 135 S. Ct. 2551, 2554 (2015). Thus, the vagueness

doctrine requires that a criminal statute “be framed with sufficient clarity to alert all who

are subject to its sanctions to the nature of the proscribed behavior and to inform them of

permissible standards of conduct, that they may conduct themselves accordingly.”

People v. Randall, 711 P.2d 689, 691 (Colo. 1985).

¶61 Here, we conclude that section 18-3-404(1)(g) sets forth with sufficient clarity the

nature of the prohibited behavior and informs those subject to its provisions of the

permissible standards of conduct. By its plain terms, the statute indicates that it is

unlawful for someone to deceive a victim into submitting to sexual contact by claiming

that such contact is appropriate as a form of medical examination or treatment when, in

fact, the contact is not for such a medical purpose. Moreover, it is inconceivable to us that

a person in McCoy’s position reasonably lacked notice that his deceptive conduct was

unlawful under the statute.

E. Sufficiency of the Evidence

¶62 Finally, having concluded that section 18-3-404(1)(g) passes constitutional muster,

we address McCoy’s contention that the evidence presented by the prosecution in this

case was legally insufficient to establish his guilt beyond a reasonable doubt. McCoy

argues that the prosecution failed to prove that he knowingly subjected the victims to

sexual contact and that he knew his conduct was practically certain to cause P.K. and

G.M. to submit to the sexual contact under the belief that they were receiving medical

examinations. We are unpersuaded.

25
¶63 We review the record de novo to determine whether the evidence presented was

sufficient in both quantity and quality to sustain a defendant’s conviction. Clark, 232 P.3d

at 1291. The prosecution has the burden of establishing a prima facie case of guilt through

the introduction of sufficient evidence. Id. We consider “whether the relevant evidence,

both direct and circumstantial, when viewed as a whole and in the light most favorable

to the prosecution, is substantial and sufficient to support a conclusion by a reasonable

mind that the defendant is guilty of the charge beyond a reasonable doubt.” Id. (quoting

People v. Bennett, 515 P.2d 466, 469 (1973)).

¶64 Here, we conclude that sufficient direct and circumstantial evidence supported

McCoy’s convictions.

¶65 As discussed above, section 18-3-404(1)(g) prohibits a doctor or other individual

who is, or holds himself or herself out to be, a health treatment provider of any kind, from

knowingly obtaining a victim’s submission to sexual contact by examining, treating, or

purporting to examine or treat the victim for other than a bona fide medical purpose or

in a manner substantially inconsistent with reasonable medical practices. McCoy does

not dispute that he knowingly subjected the victims to sexual contact, and thus the

contested issue is whether or not McCoy is an individual covered by the provision.

¶66 At trial, both victims and numerous witnesses who testified to other acts pursuant

to CRE 404(b) described their encounters with McCoy. G.M. testified that early in his

interactions with McCoy, McCoy said that he was a pediatrician. P.K. likewise testified

that McCoy had indicated that he was a physician (or, at another time, a Harvard-trained

psychologist). Both men testified further that (1) McCoy told them that he needed to

26
check their physical fitness to ensure that they were capable of performing the purported

jobs for which they were applying; (2) during the course of these physical examinations,

McCoy asked them to remove clothing and touched their genitals or the area immediately

next to their genitals; and (3) they told McCoy that they were uncomfortable with the

touching and examinations or otherwise resisted. McCoy persuaded G.M. to permit the

sexual contact by telling G.M. that he could not feel a pulse when he checked G.M.’s wrist

and saying that he was “worried” about G.M.’s health. He also told G.M. that he “knew

what he was doing.”

¶67 The CRE 404(b) witnesses told of a similar pattern of conduct by McCoy. They

testified that McCoy’s standard technique was to tell young men whom he was

purportedly recruiting for employment that he needed to conduct physical examinations

to ensure that they were able to do the jobs for which they were applying. Before and

during these physical examinations, McCoy repeatedly told the men that he was a doctor

or that he had been trained in a medical field, a fact he used to reassure them about the

sexual contact. And consistent with this pattern of conduct, McCoy told at least one of

the young men that he could help relieve the man’s depression, he informed another that

he had a hernia in his testicle and the only way to get rid of it was to massage it all the

time or have surgery, and all of the young men submitted to McCoy’s sexual contact

based on his representations.

¶68 The foregoing evidence amply supported the prosecution’s theory that McCoy

had induced the victims in this case to submit to sexual contact by falsely holding himself

out to be a doctor and that he had reason to know that by doing so the victims were

27
practically certain to submit to his sexual contact under the belief that they would be

receiving medical examinations.

¶69 Accordingly, we conclude that the evidence presented at trial was substantial and

sufficient to permit a reasonable juror to conclude, beyond a reasonable doubt, that

McCoy persuaded the victims to submit to unwanted sexual contact by persuading them

that he was conducting a medical examination. Moreover, no evidence suggested that

McCoy had conducted the purported medical examinations for bona fide medical

purposes or in a manner consistent with reasonable medical practices.

III. Conclusion

¶70 For the foregoing reasons, 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 unpreserved sufficiency claims de novo (i.e.,

in the same manner as if the claims were preserved), including when such claims involve

preliminary questions of statutory construction. Reviewing McCoy’s contentions under

this standard here, we further conclude that section 18-3-404(1)(g) applies to a doctor or

other individual who is, or holds himself or herself out to be, a health treatment provider

of any kind, and who knowingly subjects the victim to sexual contact while examining,

treating, or purporting to examine or treat the victim for other than a bona fide medical

purpose or in a manner substantially inconsistent with reasonable medical practices.

Because this construction defeats McCoy’s assertions that section 18-3-404(1)(g) is

overbroad or void for vagueness, we turn to the merits of McCoy’s sufficiency challenge,

28
and we conclude that the evidence presented in this case was substantial and sufficient

to support McCoy’s convictions for unlawful sexual contact.

¶71 Accordingly, we affirm the division’s judgment, although our analysis differs

somewhat from that of the division.

JUSTICE SAMOUR concurs in the judgment only, and CHIEF JUSTICE COATS
and JUSTICE BOATRIGHT join in the concurrence in the judgment only.

29
JUSTICE SAMOUR, concurring in the judgment only.

¶72 I agree with the majority that we should affirm the judgment of the court of

appeals. However, I would do so for different reasons. Therefore, I concur in the

judgment only.

¶73 Like the majority, I would start with McCoy’s unpreserved statutory construction

argument, and I would apply de novo review to determine whether the trial court erred.

See People v. Perez, 2016 CO 12, ¶ 8, 367 P.3d 695, 697 (“We review questions of statutory

interpretation de novo.”). Assuming the trial court erred in failing to interpret section

18-3-404(1)(g), C.R.S. (2018), as McCoy now proposes, I would ask whether such error

requires reversal. For all the reasons articulated in my concurrence in the companion

case of Maestas v. People, 2019 CO 45, __ P.3d __, I would not apply an error-determining

standard (de novo review) to this reversal-determining question, as the majority does.

Instead, I would apply a reversal-determining standard to the reversal-determining

question. And I would conclude that plain error review is the correct standard of

reversal. However, as I explain in Maestas, I would apply the U.S. Supreme Court’s plain

error framework pursuant to Fed. R. Crim. P. 52(b). I would reach McCoy’s unpreserved

sufficiency challenge only if any error in the trial court’s failure to interpret section

18-3-404(1)(g) as he proposes now constitutes plain error.

¶74 Turning to the merits of McCoy’s appeal, I would hold that he has not

demonstrated that any error by the trial court in failing to interpret section 18-3-404(1)(g)

as he now urges rises to the level of plain error. As the majority explains, section

1
18-3-404(1)(g) is ambiguous and incapable of interpretation without resort to statutory

construction aids, including legislative history. Maj. op. ¶¶ 42–50. As such, any error in

the trial court’s interpretation of the statute, considered now at the time of review, see

Henderson v. United States, 568 U.S. 266, 273–77 (2013), is not clear or obvious, and thus

cannot be plain. See United States v. Olano, 507 U.S. 725, 734 (1993) (the word “plain” in

this context “is synonymous with ‘clear’ or, equivalently, ‘obvious’”).

¶75 Given the determination of no plain error, I would not address McCoy’s

unpreserved contention that, based on his proposed statutory interpretation, the

evidence presented at trial was insufficient to support his conviction.1

¶76 Accordingly, like the majority, I would affirm the judgment of the court of appeals.

However, I would do so on different grounds. For this reason, I concur in the judgment

only.

I am authorized to state that CHIEF JUSTICE COATS and JUSTICE BOATRIGHT

join in this concurrence in the judgment only.

1 McCoy does not contest the sufficiency of the evidence under the trial court’s
interpretation of section 18-3-404(1)(g), which he did not oppose. His sufficiency
assertion hinges on his unpreserved statutory interpretation. And, since the trial court’s
failure to sua sponte adopt that interpretation does not rise to the level of plain error,
there is no need to consider whether the evidence introduced was sufficient under such
interpretation.
2