David McCoy told two young men, P.K. and G.M., that he worked in film, television, or broadcasting and invited them to his apartment for supposed job interviews and training. During lengthy interviews, McCoy kept their identification documents, asked increasingly personal questions, and said he needed to conduct physical examinations to determine whether they were fit for the jobs.
McCoy represented at various times that he was a physician, pediatrician, or Harvard-trained psychologist. In the purported examinations, he had the men remove clothing, touched their groin and genital areas, and touched their buttocks. Both victims testified that they were uncomfortable or resisted. Other-acts witnesses described a similar pattern in which McCoy claimed medical training and used purported examinations to obtain sexual contact.
A jury convicted McCoy of two counts of unlawful sexual contact under section 18-3-404(1)(g). On appeal, McCoy argued that the statute applied only to conduct within a physician-patient relationship and that the evidence was therefore insufficient because he was not a physician. A divided court of appeals affirmed. The majority reviewed the unpreserved sufficiency claim de novo and read the statute broadly to cover any actor; Judge Webb specially concurred, concluding that unpreserved claims should receive plain-error review. The Colorado Supreme Court affirmed, but adopted a narrower statutory construction than the court of appeals.
Issue #1
Whether an appellate court reviews an unpreserved claim of insufficient evidence de novo or only for plain error.
Holding
An unpreserved sufficiency-of-the-evidence claim may be raised for the first time on appeal and must be reviewed de novo, including when the claim depends on a preliminary question of statutory interpretation.
Reasoning
A sufficiency challenge asserts that the prosecution failed to prove every element of the offense beyond a reasonable doubt. Because due process forbids a criminal conviction unsupported by legally sufficient evidence, plain-error review cannot properly permit affirmance of a conviction when the State did not establish that the defendant committed a crime.
Colorado's criminal rules do not require a defendant to move for judgment of acquittal or for a new trial to preserve a sufficiency challenge. Crim. P. 33(a), in particular, says that a party need not include every appellate issue in a new-trial motion to preserve it. A challenge to the completed body of prosecution evidence also differs from an ordinary trial-error objection, which can allow the trial court to avert or correct an error during trial.
A defendant who contests the prosecution's proof at trial has effectively challenged its sufficiency. Longstanding Colorado authority, the pre-Lacallo court-of-appeals cases, and substantial authority from other jurisdictions support allowing sufficiency claims for the first time on appeal. Even jurisdictions describing their review as plain-error review generally recognize that a conviction on insufficient evidence necessarily is plain error.
The same rule applies where statutory interpretation is necessary to decide sufficiency. If the defendant's conduct does not fall within the charged statute as properly construed, an appellate court cannot affirm the conviction solely because the defendant did not present that statutory argument below. The prosecution bears responsibility for knowing the elements of the offense it charges and for proving them beyond a reasonable doubt.
The People's concerns about surprise, judicial efficiency, gamesmanship, and finality did not justify a preservation requirement. Requiring a post-trial objection could improperly give the prosecution a second opportunity to introduce evidence it should have offered before resting; appellate courts are equally equipped to decide legal questions de novo; and finality must yield to the overriding interest in avoiding unjust convictions. The Court therefore overruled contrary court-of-appeals decisions, including Lacallo and Heywood.
Issue #2
Whether section 18-3-404(1)(g) applies only in a physician-patient relationship, to any actor whatsoever, or to health-treatment providers and those who purport to be such providers.
Holding
The statute applies to doctors, other actual health-treatment providers, and people who hold themselves out as health-treatment providers, when they knowingly subject a victim to sexual contact during an actual or purported examination or treatment that lacks a bona fide medical purpose or is substantially inconsistent with reasonable medical practices.
Reasoning
The statutory text was ambiguous. Its reference to 'any actor' and to conduct inconsistent with reasonable medical practices could suggest coverage beyond licensed physicians. But its references to treatment, examination, and medical purposes could also reasonably be read to focus on inappropriate medical examinations, rather than all conduct involving touching or inspection.
The legislative history resolved the ambiguity. When the General Assembly revised the sexual-offense statutes in 1975, legislators explained that this provision was intended to protect victims who were induced to submit without force because a doctor, healer, or pretended medical provider falsely characterized sexual contact as medical care. The legislature deliberately removed the word 'medical' before 'treatment' so that the statute would also reach faith healers and persons using the ruse of medical treatment.
This construction gave effect to the provision's protective purpose without adopting the court-of-appeals majority's unlimited reading of 'any actor.' Reading the statute to cover all actors without limitation could sweep in consensual adult sexual conduct, raising serious constitutional problems. A reasonable limiting construction was therefore preferable and consistent with legislative intent.
The legislature's later amendment of the sexual-assault provision, section 18-3-402(1)(g), adding language about one 'purporting to offer a medical service,' did not compel a broader reading of the unlawful-sexual-contact provision. Given the original legislative history, the Court would not infer from the absence of a parallel amendment that the legislature deliberately intended section 18-3-404(1)(g) to regulate wholly unrelated conduct.
Issue #3
Whether section 18-3-404(1)(g), as construed, is facially unconstitutionally overbroad.
Holding
No. The statute does not reach a substantial amount of constitutionally protected conduct.
Reasoning
The overbreadth doctrine is principally concerned with laws that substantially restrict First Amendment-protected speech or exert an impermissible chilling effect. Courts use facial invalidation sparingly and should adopt a reasonable narrowing construction when one preserves the statute's constitutionality.
Under the Court's construction, the statute does not criminalize private, consensual sexual behavior between adults. It instead reaches a person who falsely induces a victim to submit to sexual contact by presenting the contact as health treatment or a medical examination. Because that limited conduct does not encompass a substantial amount of protected activity, McCoy's facial overbreadth challenge failed.
Issue #4
Whether section 18-3-404(1)(g), as construed, is unconstitutionally vague.
Holding
No. The statute gives ordinary people adequate notice of the prohibited conduct and does not invite arbitrary enforcement.
Reasoning
A criminal law is impermissibly vague only if it fails to provide fair notice of what it punishes or lacks standards sufficient to prevent arbitrary enforcement. The statute, read in its proper context, clearly prohibits using a false claim of medical examination or treatment to induce sexual contact that is not medically legitimate.
The Court found it inconceivable that someone in McCoy's position lacked notice that falsely claiming medical expertise and conducting sexual touching under the pretense of a physical examination was unlawful. The statute therefore provided sufficient clarity to satisfy due process.
Issue #5
Whether the prosecution presented sufficient evidence to support McCoy's two convictions under section 18-3-404(1)(g).
Holding
Yes. Viewed in the light most favorable to the prosecution, the evidence was substantial and sufficient for a reasonable juror to find McCoy guilty beyond a reasonable doubt.
Reasoning
On de novo sufficiency review, the court considers all direct and circumstantial evidence in the light most favorable to the prosecution and asks whether a reasonable mind could find guilt beyond a reasonable doubt. McCoy did not dispute that he knowingly engaged in sexual contact; the central question was whether his conduct fit the statute's health-provider-or-pretended-provider framework.
Both victims testified that McCoy claimed to be medically trained or to be a doctor and said that physical examinations were necessary to determine their fitness for the supposed jobs. During those examinations, he directed them to remove clothing and touched their genital areas or the adjacent groin area. He reassured G.M. that he knew what he was doing and invoked concern about G.M.'s health to secure his submission.
The other-acts evidence showed a repeated and distinctive practice: McCoy recruited young men with supposed job opportunities, claimed medical knowledge, and used fraudulent physical examinations to obtain sexual contact. This evidence supported the inference that he intentionally held himself out as a health provider and knew that his representations would cause the victims to submit to the purported examinations.
No evidence suggested that the examinations served any bona fide medical purpose or conformed to reasonable medical practices. The total evidence therefore allowed a reasonable jury to conclude that McCoy used the guise of medical examination to obtain unwanted sexual contact, satisfying the statutory elements.