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State v. Kelso-Christy

Supreme Court of Iowa

May 4, 2018

STATE OF IOWA, Appellee,

         On review from the Iowa Court of Appeals.

          Appeal from the Iowa District Court for Marion County, Martha L. Mertz and Gregory A. Hulse, Judges.

         Defendant 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.

          Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Tyler J. Buller and Sheryl Soich, Assistant Attorneys General, and Edward Bull, County Attorney, for appellee.


         In this 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.

         I. Factual Background and Proceedings.

         In 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 for sex.

         On 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.

         Kelso-Christy 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.

         Kelso-Christy 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 impersonating him.

         S.G. 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.

         Prior 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.

         Kelso-Christy 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.

         The 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 fine.

         Kelso-Christy 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.

         II. Standard of Review.

         We 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.

         III. Analysis.

         To 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.[1]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.

         A. Mens Rea and Sexual Abuse.

         The 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.

         B. Specific Intent to Commit Sexual Abuse.

         1. Sexual abuse.

         Sexual 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)).

         The 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.

         At the 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.

         As in 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.

         2. Spe ...

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