review from the Iowa Court of Appeals.
from the Iowa District Court for Marion County, Martha L.
Mertz and Gregory A. Hulse, Judges.
seeks further review of his conviction for burglary in the
second degree, contending he did not enter the premises with
the specific intent to commit sexual abuse.
C. Smith, State Appellate Defender, and Melinda J. Nye,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, Tyler J. Buller and Sheryl
Soich, Assistant Attorneys General, and Edward Bull, County
Attorney, for appellee.
appeal, we must primarily decide if one person's consent
to engage in a sexual encounter with another, obtained
through the other actor's fraudulent misrepresentations
that he is someone else, constitutes a valid consent to
engage in the sexual encounter. We conclude such deception
does not establish consent to engage in a sexual encounter.
We affirm the judgment of the district court and the decision
of the court of appeals.
Factual Background and Proceedings.
April 2015, Michael Kelso-Christy created a fake Facebook
profile of a man, S.P., who had attended his high school.
Posing as S.P., Kelso-Christy began to send Facebook messages
to women who also attended school with S.P. The messages
informed women that S.P.'s profile had been hacked and
that he had created a new one. Then, Kelso-Christy would
attempt to solicit nude photographs or proposition the women
April 26, Kelso-Christy sent one such Facebook message to
S.G. The two began a conversation, as S.G. knew S.P. from
high school. Posing as S.P., Kelso-Christy gave S.G. his
phone number and the two began texting. The conversation
turned sexual in nature.
repeatedly asked S.G. to send him nude photographs of
herself, which she ultimately did. Then, Kelso-Christy, still
posing as S.P., suggested the two have a sexual encounter
wherein S.G. would be blindfolded and restrained in
handcuffs. S.G. agreed and invited S.P. to her home.
instructed S.G. to blindfold herself and wait for his
arrival, which she did. When Kelso-Christy arrived, he did
not say anything, but rather quickly handcuffed S.G. and
proceeded to have intercourse. Afterwards, he immediately
left S.G.'s home without undoing the blindfold or
handcuffs. S.G. eventually freed herself and saw a text
message from S.P. saying his brother was in the hospital and
he could not stay. S.G. grew suspicious when S.P. stopped
responding to text messages and the Facebook profile was no
longer active. S.G. also did not see any Facebook posts by
others indicating that S.P.'s brother was hospitalized.
The next day, S.G. sent a message to the original S.P.
Facebook account and determined that someone had been
immediately contacted the sheriff's office and reported
her assault. S.G. repeatedly affirmed she only consented to
an encounter with S.P., whom she knew personally, and never
consented to any encounter with Kelso-Christy. An
investigation linked Kelso-Christy's phone number to the
one given to S.G., and a latent print matching
Kelso-Christy's left thumbprint was found on the condom
wrapper used during the encounter. Pursuant to a valid
warrant, officers searched Kelso-Christy's home and found
a list of women's names in his bedroom that included
S.G.'s. Kelso-Christy was arrested and charged by trial
information with burglary in the first degree and sexual
abuse in the third degree. The State and Kelso-Christy
reached a plea arrangement in which the State reduced the
charges to only burglary in the second degree, and
Kelso-Christy agreed not to resist a ten-year prison sentence
if he was found guilty.
to trial, Kelso-Christy filed a motion to dismiss the charge.
He asserted the stipulated evidence lacked any indicia that
he entered S.G.'s residence with the specific intent to
commit sexual abuse. Kelso-Christy argued S.G. consented to
the sex act, and any concealment of his true identity was
mere fraud in the inducement. The district court overruled
the motion. It concluded S.G. only consented to have an
encounter with S.P. The district court reasoned that consent
to a sex act inherently requires knowledge of the actual
identity of the partner. Thus, the court concluded that
Kelso-Christy's deception amounted to fraud in fact,
which vitiated any prior consent given by S.G.
agreed to a trial on the minutes of testimony. The minutes
indicated S.G. would testify that she only consented to
engage in a sexual encounter with S.P. The minutes also
provided that S.P. would testify that he never created a
separate Facebook account and that he had been contacted by
other men who were angry with him for soliciting sex from
their wives and girlfriends.
district court found Kelso-Christy guilty of burglary in the
second degree in violation of Iowa Code section 713.5 (2015).
The court concluded (1) Kelso-Christy entered S.G.'s
residence, (2) the residence was an occupied structure, (3)
Kelso-Christy did not have authority or permission to enter
the residence, (4) the residence was not open to the public,
(5) one or more persons was present in the structure, and (6)
Kelso-Christy entered the residence with the specific intent
to commit sexual abuse. The district court sentenced
Kelso-Christy to ten years in prison and imposed a $1000
appealed. He asserted the record lacked sufficient evidence
to find he acted with the specific intent to commit sexual
abuse. We transferred the case to the court of appeals. The
court found S.G. consented to a sexual encounter with a
specific former classmate and, instead, experienced an
entirely different act-an act to which she plainly did not
consent. Accordingly, the court held there was sufficient
evidence to conclude Kelso-Christy entered S.G.'s home
with the specific intent to commit sexual abuse.
Kelso-Christy applied for further review, which we granted.
Standard of Review.
review the sufficiency of the evidence for correction of
errors at law. State v. Robinson, 859 N.W.2d 464,
467 (Iowa 2015). Pursuant to this review, "we examine
whether, taken in the light most favorable to the State, the
finding of guilt is supported by substantial evidence in the
record." State v. Meyers, 799 N.W.2d 132, 138
(Iowa 2011). Substantial evidence exists when the evidence
"would convince a rational fact finder the defendant is
guilty beyond a reasonable doubt." Id.
support the conviction in this case, the State was required
to prove six elements beyond a reasonable doubt: (1) the
defendant entered a structure; (2) the structure was
occupied; (3) the structure was not open to the public; (4)
the defendant did not have permission to enter the structure;
(5) one or more persons were present in the structure at the
time of entry; and (6) the defendant entered the structure
with an intent to commit a felony, assault, or theft therein.
Iowa Code § 713.1, .5. The parties do not dispute that
the State has proven the first five elements.Accordingly, we
only consider whether Kelso-Christy entered S.G.'s
residence with the specific intent to commit sexual abuse.
Kelso-Christy primarily argues his nefarious actions in
arranging the encounter with S.G. did not vitiate her consent
and that the State failed to submit any evidence that he
entered her house with the intent to commit sexual abuse.
Mens Rea and Sexual Abuse.
focal point of the crime of sexual abuse is consent.
Id. § 709.1(1). This critical element does not
inquire into the mind of the defendant to create a
specific-intent crime, but turns on the intentions and mental
state of the victim. See State v. Riles-El, 453
N.W.2d 538, 539 (Iowa Ct. App. 1990) ("[S]exual abuse is
a general intent crime."); see also State v.
Booth, 169 N.W.2d 869, 874 (Iowa 1969) ("[T]he
crime of rape requires no specific intent. The statutory
definition makes the proof of certain acts alone sufficient
and the general criminal intent is supplied by the
performance of such acts."). In this case, however, the
defendant was not convicted of sexual abuse. Instead, he was
charged and convicted of burglary based upon the entry into
an occupied structure with the intent to commit sexual abuse.
Thus, the crime of burglary was committed only if the
offender intended to engage in a nonconsensual sex act when
entering the residence of S.G. Accordingly, our inquiry is
ultimately directed at the intent of the defendant, but we
nevertheless examine that intent to see if the facts support
a finding of intent to engage in a sex act without the
consent of the other person.
Specific Intent to Commit Sexual Abuse.
abuse is "[a]ny sex act . . . done by force or against
the will of the other." Iowa Code § 709.1(1).
Beyond the "against the will of the other"
standard, the legislature has codified specific, additional
instances of nonconsent. See id. §§
709.1-.4. By utilizing both broad and specific
conceptualizations of sexual abuse, the legislature sought to
"capture both case-specific circumstances of an
'actual failure of consent' as well as circumstances
when the legislature has declared 'consent as
incompetent' or nonexistent." Meyers, 799
N.W.2d at 143 (quoting Model Penal Code & Commentaries
§ 213.1 cmt. 4, at 301 (1980)).
purpose of criminalizing sexual abuse is to protect the
freedom of choice to engage in sex acts. Id. We have
previously explained that "the 'against the will of
another' standard seeks to broadly protect persons from
nonconsensual sex acts, even under circumstances showing the
victim had no opportunity or ability to consent."
Id. Indeed, in furtherance of the statute's
clear purpose, we inquire into whether the victim gave
meaningful consent and consider the "circumstances
indicating any overreaching by the accused, together with
circumstances indicating any lack of consent by the other
person." Id. at 146.
same time, we are mindful that "the [sex abuse] statute
as a whole expresses no limit on the conduct or circumstances
that can be used to establish nonconsent." Id.
at 143. For example, in Meyers, we considered
whether the "against the will" element
"includes circumstances in which pervasive psychological
coercion vitiates the consent of the victim."
Id. at 140. Although the statute did not
specifically provide for "rape by psychological
coercion" within chapter 709, we explained "the
legislature never intended to limit the circumstances that
could be used to vitiate consent under the 'by force or
against the will' standard." Id. at 144.
Rather, the "against the will" element is
deliberately broad and consciously designed to capture all
circumstances when "there is an actual failure of
consent." Id. at 143 (quoting Model Penal Code
& Commentaries § 213.1 cmt. 4, at 301). Accordingly,
we held "psychological force or inability to consent
based on the relationship and circumstance of the
participants may give rise to a conviction under the
'against the will' element of" sexual abuse.
Id. at 146.
other cases that do not involve conduct that is expressly
identified as sexual abuse within section 709.1 or section
709.4, we apply the "against the will of the other"
standard to the case-specific circumstances to determine
whether there was an actual failure of consent. We look to
Kelso-Christy's state of mind to determine the
sufficiency of evidence that he intended to engage in a sex
act in the absence of consent.