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Kelly v. State

Court of Appeals of Iowa

August 1, 2018

MICHAEL KELLY, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.

         The applicant appeals from the dismissal of his third application for postconviction relief.

          Stephen P. Dowil of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman, P.C., West Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee State.

          Considered by Potterfield, P.J., McDonald, J., and Blane, S.J. [*]

          POTTERFIELD, PRESIDING JUDGE.

         Michael Kelly appeals the dismissal of his third application for postconviction relief (PCR).

         I. Background Facts and Proceedings.

         In 2005, Kelly was charged with sexual abuse in the third degree. At the jury trial in his opening statement, Kelly's trial counsel set forth the defense's trial strategy, stating: "We're not saying there wasn't sex. We're not here today to deny that [Kelly] had sex with [N.B.]. The question is whether it was consensual sex . . . ." N.B. testified that she was incapable of consenting to the sex act due to her extreme intoxication. Kelly did not testify.

         The jury found Kelly guilty. As we summarized in a later opinion:

From the evidence presented at trial, a jury could have found the following facts: On the evening of December 4, 2004, N.B. attended a party at her coworker's apartment. Michael Kelly, an acquaintance of N.B.'s, also attended. N.B. drank heavily at the party to the point of extreme intoxication. When N.B. began to stumble about and pass out, N.B.'s friends put her in a bedroom to sleep, alone.
N.B. awoke the next morning confused, hung-over, in pain, and lying next to Kelly. N.B. became aware she had had sex the night before. N.B. also determined she was missing about eighty dollars from her pants pocket. She asked Kelly what had happened the night before, and he responded: "Don't you remember?" N.B. then said to Kelly, "I'm not a virgin anymore, am I?" Kelly answered: "Shit happens." Kelly told her he would help her get her money back. N.B. then drove home.
Kelly called N.B. later to tell her he had gotten her money. The two met at a convenience store, and Kelly gave N.B. the money. Kelly and N.B. exchanged a kiss, which N.B. described as a "peck." Later in the evening, after talking to family, friends, and a victims' hotline, ...

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