     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.

                                    1
 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


                                    2
  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


                                     3
  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.”




                                     4
¶ 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


                                      5
  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.

                                     6
  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


                                     7
  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


                                     9
  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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