v. McEntee , 2019 COA 139 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 5, 2019
2019COA139
No. 17CA0040, People v. McEntee — Crimes — Unlawful Sexual
Contact
In this case, a division of the court of appeals concludes for
the first time that the phrase “another person,” as used in section
18-3-404(1.5), C.R.S. 2018, does not require the participation of an
additional person beyond the victim and the defendant. Rather,
from the perspective of the victim, the defendant is “another
person.” Therefore, sufficient evidence supported the defendant’s
conviction.
COLORADO COURT OF APPEALS 2019COA139
Court of Appeals No. 17CA0040
El Paso County District Court No. 15CR1774
Honorable William B. Bain, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joseph Lee McEntee,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE TOW
Bernard, C.J., and Hawthorne, J., concur
Announced September 5, 2019
Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted defendant, Joseph Lee McEntee, of unlawful
sexual contact. He appealed the judgment of conviction, and we
affirmed. People v. McEntee, (Colo. App. No. 17CA0040, Nov. 1,
2018) (not published pursuant to C.A.R. 35(e) (McEntee I).
¶2 Our supreme court granted McEntee’s petition for writ of
certiorari on one issue — whether the State failed to prove beyond a
reasonable doubt the necessary elements of felony unlawful sexual
contact pursuant to section 18-3-404(1.5), C.R.S. 2018 — and
denied the petition as to all other issues. The supreme court
vacated that single part of the judgment1 and remanded the case to
us for reconsideration in light of its recent decision in McCoy v.
People, 2019 CO 44.
¶3 After reconsidering that issue, we affirm the judgment.
I. Background
¶4 In May or June 2014, McEntee approached his adolescent
neighbor, L.S., and asked if he could see his “dick.” L.S. told
McEntee no, but McEntee moved closer and touched L.S.’s penis
1Because the supreme court denied certiorari on all other issues,
all other aspects of the decision in McEntee I remain undisturbed.
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while trying to unzip his pants. L.S. then grabbed McEntee’s hand
and moved it away from him. McEntee tried again, placing his
hand on L.S.’s pants over his penis for what L.S. described as “five
minutes probably.”
¶5 At the time of the incident, L.S. was fourteen years old, was
“real small,” and had been diagnosed with “pervasive development
delay.”
¶6 McEntee was charged with unlawful sexual contact in
violation of section 18-3-404(1.5). At the conclusion of the People’s
case-in-chief, McEntee’s counsel moved for a judgment of acquittal,
“rest[ing] on the record at this time.” The court denied the motion,
and a jury ultimately convicted him as charged. The trial court
sentenced him to sex offender intensive supervised probation for an
indeterminate term of ten years to life.
¶7 McEntee now appeals his conviction.
II. Felony Unlawful Sexual Contact
¶8 McEntee contends that the evidence was insufficient to
support his conviction for unlawful sexual contact under section
18-3-404(1.5). Specifically, he argues that because the State did
not prove that McEntee induced or coerced L.S. to engage in sexual
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contact “with another person” for McEntee’s own sexual
gratification, the conviction cannot stand. We discern no basis for
reversal.
A. Standard of Review
¶9 McEntee does not raise a traditional attack on the factual
sufficiency of the evidence (i.e., that the quantum and weight of the
evidence fail to prove one or more of the undisputed elements of the
crime charged). Rather, his claim is grounded upon an issue of
statutory interpretation of one element of the crime. Specifically, he
argues that the statute under which he was charged and tried
applies to sexual contact involving a third person, other than the
victim and the defendant. As such, his claim is an attack on the
legal sufficiency of the charge.
¶ 10 McEntee never raised this issue either before or during trial.
Nevertheless, we review sufficiency claims raised for the first time
on appeal de novo. McCoy, ¶ 19.
B. Analysis
¶ 11 When interpreting a statute, our goal is to give effect to the
intent of the General Assembly. People v. Coleman, 2018 COA 67,
¶ 41; see also § 2-4-203(1), C.R.S. 2018. We do so by first
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examining the statute’s plain language, giving each word or phrase
its ordinary meaning. Coleman, ¶ 41. If the statute’s plain
language is unambiguous, we apply the statute as written. Id. But
if the statute contains an ambiguity, we employ other tools of
statutory interpretation to decipher the statute’s meaning. Id.; see
also § 2-4-203.
¶ 12 The statute under which McEntee was charged reads in
relevant part as follows:
Any person who knowingly, with or without
sexual contact, induces or coerces a child by
any of the means set forth in section 18-3-
402[, C.R.S. 2018,] to expose intimate parts or
to engage in any sexual contact, intrusion, or
penetration with another person, for the
purpose of the actor’s own sexual gratification,
commits unlawful sexual contact.
§ 18-3-404(1.5) (emphasis added). The phrase “with another
person” is ambiguous. It could mean, as McEntee argues, an
additional person beyond the victim and the defendant.
However, it is equally logical to read it as “a person other than
the victim himself.” In other words, from the perspective of the
victim, the perpetrator is “another person.”
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¶ 13 “Where a statute is ambiguous so that the words chosen do
not inexorably lead to a single result, resort to the legislative history
to ascertain legislative intent is appropriate.” State v. Nieto, 993
P.2d 493, 501 (Colo. 2000); see also § 2-4-203(1)(c). But neither
party has provided us with relevant legislative history, such as
statements made during the debate over passage of the language in
1989. In fact, McEntee states in a footnote in his opening brief that
“undersigned counsel was not able to locate any discussion relating
to C.R.S. § 18-3-404(1.5)” in the legislative history pertaining to the
passage of S.B. 89-246, 57th Gen. Assemb., 1st Reg. Sess. (Colo.
1989), which enacted the statute. The People present nothing to
the contrary. Thus, there appears to be no legislative history that
would be of assistance.
¶ 14 Nor can any guidance be gleaned from the limited case law
interpreting or applying this statute. Although this statute has
been in effect for nearly thirty years, there are only a few published
appellate cases that address charges under this particular
subsection. None of them involved a third person.
¶ 15 In People v. Walker, 321 P.3d 528 (Colo. App. 2011), aff’d in
part and vacated in part on other grounds, 2014 CO 6, the defendant
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was convicted of three counts of unlawful sexual contact under
section 18-3-404(1.5) for coercing three young boys into exposing
themselves so the defendant could take nude photographs or videos
of them.
¶ 16 In People v. Madden, 111 P.3d 452 (Colo. 2005), the defendant
was charged with attempted third degree sexual assault2 after he
pushed an underage girl against the window of a trolley, kissed her
neck, and told her to remove her pants. Id. at 456. Significantly,
though the defendant was charged under section 18-3-404(1.5), the
jury was instructed on the elements set forth in section 18-3-
404(1). Id. at 455 n.5. The decision does not explain why the
variance occurred. Id. Nevertheless, the Colorado Supreme Court
held that the “crime charged in the information” sufficiently placed
the defendant on notice of what he would have to defend against,
and thus the variance was not fatal. Id. at 456. It is telling, albeit
not dispositive of the issue before us, that the supreme court at no
point raised concern or confusion as to whether, as charged, the
2 Prior to July 1, 2000, the crime of unlawful sexual contact was
called sexual assault in the third degree. See Ch. 171, sec. 20,
§ 18-3-404, 2000 Colo. Sess. Laws 700-01.
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statute would have been applicable to the facts at hand, despite the
absence of a third party.
¶ 17 While these opinions are instructive, neither Walker nor
Madden resolves the question before us, as the specific
interpretation of “another person” was not at issue in those cases.
So, we turn to familiar rules of statutory interpretation.
¶ 18 “[W]e must interpret a statute so as to effectuate the purpose
of the legislative scheme.” Johnson v. People, 2016 CO 59, ¶ 18.
Thus, “we read the scheme as a whole, giving consistent,
harmonious, and sensible effect to all of its parts.” Id.
¶ 19 McEntee suggests that to read sections 18-3-404(1.5) and 18-
3-404(1)(a) harmoniously requires reading “with another person” in
subsection (1.5) to implicate an additional person beyond the victim
and the defendant. In other words, he suggests that construing
this phrase to the contrary would eliminate any distinction between
these subsections. We disagree.
¶ 20 These subsections may be read harmoniously. Section 18-3-
404(1)(a) only applies to sexual contact, whereas section 18-3-
404(1.5) also encompasses the exposure of intimate parts, “with or
without sexual contact.” Furthermore, section 18-3-404(1)(a) does
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not contemplate the victim’s age or status as a child. In contrast,
section 18-3-404(1.5) only applies to situations where the victim is
a “child” under the age of eighteen years. Allowing section 18-3-
404(1.5) to encompass crimes involving only the perpetrator and
the victim does not eliminate these distinctions.
¶ 21 In fact, if McEntee’s view of the statute were correct, it would
not be a crime for an individual, for that individual’s sexual
gratification, to force or coerce a child to expose himself or herself to
that individual. No other provision in the criminal code prohibits
this conduct. We simply cannot believe that the legislature did not
intend to address such conduct when this provision was enacted.3
See McCoy, ¶ 38 (noting that in interpreting a statute, “we read [the
legislative] scheme as a whole, giving consistent, harmonious, and
sensible effect to all of its parts, and we must avoid constructions
3 Because we conclude that the legislature’s intent is clear,
McEntee’s invocation of the rule of lenity is unavailing. The rule of
lenity, which requires ambiguities to be construed in favor of the
defendant, “is to be applied only when we are unable ‘to discern the
intent of the General Assembly.’” People v. Voth, 2013 CO 61, ¶ 22
n.5 (quoting Frazier v. People, 90 P.3d 807, 811 (Colo. 2004)).
8
that would render any words or phrases superfluous or lead to
illogical or absurd results”).
¶ 22 McEntee also cites to section 18-3-405(1), C.R.S. 2018, for the
same concern. But section 18-3-405(1) may also be read
harmoniously with section 18-3-404(1.5). In contrast to section 18-
3-404(1.5), section 18-3-405(1) only applies to situations where “the
victim is less than fifteen years of age and the actor is at least four
years older than the victim.” Section 18-3-404(1.5), on the other
hand, does not require any age difference between the perpetrator
and the victim. Moreover, section 18-3-405 encompasses only
sexual contact — not mere exposure.
¶ 23 We note that under the circumstances of this case, it appears
that McEntee could have been charged under either section 18-3-
404(1.5) or section 18-3-405(1). To the extent that his conduct is
defined as criminal by multiple sections under this interpretation of
“with another person,” and could have been prosecuted accordingly,
the prosecution had discretion to prosecute him “under any one or
all of the sections or enactments subject to the limitations provided
by [section 18-1-408, C.R.S. 2018].” § 18-1-408(7); see also People
v. Stewart, 55 P.3d 107, 118 (Colo. 2002) (“Generally, the
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prosecution has discretion to determine what charges to file when a
defendant’s conduct violates more than one statute.”).
¶ 24 For these reasons, we hold that the phrase “another person,”
as used in section 18-3-404(1.5), is to be viewed from the
perspective of the victim. As such, the perpetrator is “another
person” in relation to the victim. So interpreted, section 18-3-
404(1.5) can still be read harmoniously with other overlapping
statutes. Consequently, section 18-3-404(1.5) does not require the
participation of an additional person beyond the victim and the
defendant. Therefore, sufficient evidence supported McEntee’s
conviction.
III. Conclusion
¶ 25 The judgment is affirmed.
CHIEF JUDGE BERNARD and JUDGE HAWTHORNE concur.
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