444 P.3d 766
Colo. Ct. App.2015Background
- Defendant David McCoy was convicted by a jury of four counts of unlawful sexual contact based on two separate episodes in which he examined and touched two male victims (P.K. and G.M.) while inducing them to come to his home under the guise of television-industry work and, in one case, by claiming to be a physician.
- At trial McCoy argued generally for acquittal but did not present the specific statutory interpretation later advanced on appeal (that § 18-3-404(1)(g) applies only in a physician–patient or bona fide medical-exam context).
- On appeal McCoy raised (1) a sufficiency-of-the-evidence challenge based on that statutory construction, and (2) facial constitutional challenges to § 18-3-404(1)(g) for overbreadth and vagueness.
- The court considered whether unpreserved sufficiency claims require plain-error review and concluded Colorado law does not demand plain-error treatment for such claims; it reviewed sufficiency de novo under Jackson v. Virginia principles.
- Applying the statute’s plain language, the court held § 18-3-404(1)(g) applies to “any actor” (not only medical professionals or bona fide medical settings), found the evidence sufficient to support convictions, and rejected McCoy’s facial overbreadth and vagueness challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation / Standard of Review for sufficiency | Prosecution: McCoy failed to preserve his statutory construction argument at trial; thus plain-error review should apply | McCoy: No preservation required for a sufficiency challenge; de novo review governs | Court: Colorado law does not require preservation of sufficiency claims; reviewed sufficiency de novo |
| Scope of § 18-3-404(1)(g) (statutory interpretation) | People: Statute’s plain terms reach any actor who knowingly subjects a victim to sexual contact during an examination or treatment that is not bona fide | McCoy: Statute should be read to apply only within physician–patient relationships or bona fide medical exams/treatment | Court: Statute is clear and unambiguous; it applies to “any actor” and is not limited to medical professionals or actual medical treatment |
| Sufficiency of evidence under § 18-3-404(1)(g) | People: Testimony that McCoy caused the victims to submit to examinations and touched intimate parts supports convictions | McCoy: If statute requires physician–patient or medical-exam context, evidence is insufficient because he was not a physician | Court: Evidence, viewed in light most favorable to prosecution, was sufficient—jury could find the examinations were induced and not bona fide medical treatment |
| Facial constitutional challenges (overbreadth/vagueness) | People: Statute is lawful on its face; protects victims and gives adequate notice | McCoy: Statute is overbroad (sweeps protected consensual role-play) and vague (fails notice / invites arbitrary enforcement) | Court: McCoy lacks standing for overbreadth (no First Amendment stake); statute is not vague in all applications and is constitutional on its face |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (Due Process standard for appellate sufficiency review)
- United States v. Olano, 507 U.S. 725 (1993) (plain error and forfeiture principles)
- Morse v. People, 168 Colo. 494 (Colo. 1969) (appellate consideration of unpreserved sufficiency claims on the record)
- People v. Terry, 720 P.2d 125 (Colo. 1986) (interpretation of similar statutory language in sexual-assault context)
- People v. Lacallo, 338 P.3d 442 (Colo. App. 2014) (division holding unpreserved sufficiency claims subject to plain-error review)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (Supreme Court vagueness analysis of the ACCA residual clause; discussed and distinguished)
- People v. Davis, 352 P.3d 950 (Colo. 2015) (double jeopardy / sufficiency-related review discussed)