2019 COA 139
Colo. Ct. App.2019Background
- In 2014, defendant Joseph McEntee asked his 14‑year‑old neighbor (diagnosed with pervasive developmental delay) if he could see the boy’s genitals, touched the boy’s penis, and persisted after the boy pushed his hand away.
- McEntee was charged under Colo. Rev. Stat. § 18‑3‑404(1.5) (unlawful sexual contact/exposure of a child “to engage in any sexual contact… with another person” for the actor’s sexual gratification).
- A jury convicted McEntee; the trial court sentenced him to sex‑offender intensive supervised probation (indeterminate 10 years to life).
- On appeal McEntee argued the statute required a third person beyond victim and defendant; the Colorado Court of Appeals initially affirmed; the Colorado Supreme Court granted cert on that statutory‑interpretation issue and remanded for reconsideration in light of McCoy v. People.
- On remand the Court of Appeals held the phrase “with another person” is to be read from the victim’s perspective (the defendant is “another person” to the victim), so the statute does not require a third party and the evidence was legally sufficient to support the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 18‑3‑404(1.5)’s phrase “with another person” requires a third person beyond the victim and defendant | The State: phrase can be viewed from the victim’s perspective so the actor qualifies as “another person”; statute covers coercion of a child to expose or engage in sexual contact with the actor alone | McEntee: “with another person” requires participation by an additional person besides defendant and victim; statute thus not implicated here | Court: phrase ambiguous but properly read from victim’s perspective; no third person required; conviction upheld |
Key Cases Cited
- People v. Walker, 321 P.3d 528 (Colo. App. 2011) (applied § 18‑3‑404(1.5) to convictions for coercing minors to expose themselves)
- People v. Madden, 111 P.3d 452 (Colo. 2005) (upheld charging/information sufficiency where variance in instruction existed under related sexual‑offense provisions)
- State v. Nieto, 993 P.2d 493 (Colo. 2000) (legislative history may be consulted when statute is ambiguous)
- People v. Stewart, 55 P.3d 107 (Colo. 2002) (prosecutor has discretion to charge under multiple overlapping statutes when conduct violates more than one provision)
- Frazier v. People, 90 P.3d 807 (Colo. 2004) (rule of lenity applies only when legislative intent cannot be discerned)