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Colorado Supreme Court Announces That Claims of Insufficient Evidence Not Preserved at Trial Are Subject to De Novo Review on Appeal

by Douglas Ankney

In two separate cases, the Supreme Court of Colorado announced that claims challenging the sufficiency of evidence are to be reviewed de novo on appeal even when the claims were not preserved at trial.

In the first case, David Lewis McCoy invited “P.K.” and “G.M.” to his apartment for job interviews. During the interviews, McCoy — claiming to be medically trained — told the victims he needed to examine them to ensure they were physically fit for the work. The two male victims alleged that McCoy “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.”

McCoy was convicted of unlawful sexual contact. He appealed, arguing C.R.S. § 18-3-404(1)(g) (“§ 404”) prohibits only conduct occurring in a doctor-patient relationship during a medical examination. As such, the People failed to present sufficient evidence to convict because McCoy is not a doctor. The People countered that McCoy had failed to preserve this claim and argued the claim could be reviewed only under the plain error standard. The court of appeals affirmed the trial court’s judgment, but one judge agreed with the People that the claim could be reviewed only under the plain error standard. The Colorado Supreme Court granted McCoy’s petition for certiorari.

The Court first addressed the question of which standard of review applies, observing that: “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.” People v. Randell, 297 P.3d 989 (Colo. 2012). But in 2014, some divisions began holding that unpreserved sufficiency claims must be reviewed only for plain error and not de novo. People v. Lacallo, 338 P.3d 442 (Colo. 2014). 

The Court further observed that “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 (1970). When a defendant challenges the sufficiency of the evidence, the defendant is asserting that the prosecution has failed to prove he or she is guilty of a crime. De novo review of the claim protects an essential component of due process in 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 (1979).

The Court also observed that nothing in Colorado’s Rules of Criminal procedure requires a defendant to file a motion for judgment of acquittal or a motion for new trial to preserve the sufficiency of evidence claim. And since the defendant effectively challenges the sufficiency of the evidence by contesting that evidence at trial, there is no purpose served in requiring a party to pursue some other objection challenging the evidence as a whole. People v. McCullough, 298 P.3d 860 (Colo. 2013). The doctrine of stare decisis also supports de novo review in that the Supreme Court has consistently opined that preservation is not required. Morse v. People, 452 P.2d 3 (Colo. 1969).
Having concluded that de novo review, and not plain error, is the correct standard, the Court then determined whether the People had met their evidentiary burden. Because § 404 is open to more than one interpretation, the Court reviewed the legislative history to determine legislative intent. Several legislators had stated that § 404 was amended to cover not only doctors, but also faith healers and others who pretended to be doctors while using the ruse of a medical examination to commit a sexual offense. Thus, the Court interpreted § 404 to cover doctors and any other people who hold themselves out to be health treatment providers of any kind.

The Court concluded that the People had met their evidentiary burden in convicting McCoy. Accordingly, the Court affirmed the decision of the court of appeals. See: McCoy v. People, 2019 CO 44 (2019).

In the second case, Bob Junior Maestas broke into an elderly man’s garage and was charged with, inter alia, second degree burglary as the entry was “with intent to commit therein the crime of obstructing a peace officer.” Maestas was convicted. He appealed, arguing the evidence was insufficient to convict because the crime of obstructing a police officer is not sufficient to establish the burglary element of entering “with intent to commit therein the crime against another person or property.” C.R.S. § 18-4-203(1).

The court of appeals assumed, without deciding, that the trial court had erred by permitting Maestas to be convicted of second degree burglary based on the predicate offense of obstructing a peace officer. But since the error was not preserved, the majority of the court reviewed under the plain error standard, which requires, among other things, that the error be “obvious.”

Since the law on the claim was unsettled at the time of the trial, the court of appeals determined the error couldn’t be obvious. Thus, the majority affirmed.

But, Judge Lichtenstein dissented because Maestas’ “conviction [was] not based on any legally cognizable crime,” and it is the court’s “imperative to correct [a] fundamentally unjust conviction and unjust incarceration.”

The Supreme Court granted further review. The Court, citing the reasoning of the McCoy decision, reversed the judgment and remanded to the court of appeals with instructions to conduct a de novo review of Maestas’ claim. See: Maestas v. People, 442 P.3d 394 (Colo. 2019). 

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