from the Iowa District Court for Dallas County, Randy V.
McGee Jr. challenges the sufficiency of the evidence
underlying his criminal convictions.
C. Smith, State Appellate Defender, and Brenda J. Gohr,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., and Mullins and McDonald, JJ.
convicted Kevin McGee Jr. of third-degree sexual abuse and
possession of a firearm as a felon. The jury also made a
conclusion sufficient for application of the minimum sentence
contained in Iowa Code section 902.7 (2017)-that McGee
represented he had a firearm at the time he committed the
crime of sexual abuse. On appeal, McGee challenges the
sufficiency of the evidence as to the possession charge and
the jury's finding that he represented he had a firearm
when he committed sexual abuse.
Background Facts and Proceedings
the evidence presented at trial, a rational jury could make
the following factual findings. On July 20, 2017, A.H. was
hanging out with her friend, E.R., when McGee messaged her
through social media and asked if she wanted to go hang out
at a hotel. Although she had never met McGee before, A.H.
responded in the affirmative. McGee picked up the girls and
drove them to a hotel in West Des Moines. When they arrived,
McGee did not have a key to the hotel room. They located
McGee's cousin, D.C., but he did not have a key either.
McGee paid E.R. to climb over a fence and enter the room
through a window. After doing so, E.R. let A.H. and McGee in,
and the three of them hung out in the hotel room. The girls
sat on the bed closest to the window, and McGee sat on the
counter. Also sitting on the counter near McGee was, among
other things, a handgun. McGee was a convicted felon at this
point, D.C. entered the room and starting "dry
humping" the girls but eventually stopped. After this
episode, D.C. left, and McGee and the girls decided to go to
a gas station. Before leaving for the gas station, McGee
removed the handgun from the counter and placed it underneath
the mattress of the bed closest to the window. The evidence
is undisputed that McGee handled the gun. At the gas station,
McGee bought the girls beverages and cigarettes. He also
secretly purchased condoms. The three returned to the hotel
where they continued to hang out.
McGee asked A.H. to lay down with him on the bed near the
window. A.H. complied. Eventually, McGee began trying to
remove A.H.'s shorts and swimsuit bottoms. A.H. resisted.
McGee was able to remove A.H.'s shorts and swimsuit, upon
which he put a condom on and began having intercourse with
A.H., despite A.H. telling McGee "no" several
times. McGee eventually changed his condom and continued,
then he removed that condom and continued intercourse
unprotected until he finished. E.R. was on the other bed at
this time and observed the assault. A.H. testified she just
laid there and did not resist or say anything, as she was
scared because "[t]here was a gun under the mattress. He
could have reached for it any time." A.H. also testified
McGee did not threaten her with the gun or reach for it
during the assault. After finishing, McGee advised the girls
to meet him outside to go get something to eat and then he
left the room. A.H. had E.R. help her get dressed. They tried
to locate McGee thereafter, but he had apparently left the
hotel. The hotel room was not registered to McGee or his
cousin. A.H. called the police and reported the sexual
assault later that morning.
State charged McGee with three counts of sexual abuse in the
third degree and one count of possession of a firearm as a
felon. The State amended its trial information to allege
McGee to be subject to the minimum-sentence requirement of
Iowa Code section 902.7. Following the State's
case-in-chief at trial, McGee moved for judgment of acquittal
on all counts and the allegations concerning the
minimum-sentence requirement. The court denied the motion.
McGee did not present evidence but again moved for judgment
of acquittal before final submission to the jury. The motion
was denied. The jury found McGee guilty of one count of
sexual abuse in the third degree and possession of a firearm
as a felon. The jury also found McGee represented that he had
a firearm at the time of the commission of the crime of
was sentenced to a term of incarceration not to exceed ten
years with a mandatory minimum of five years on the
sexual-abuse charge and a term of incarceration not to exceed
five years on the possession charge, to be served
concurrently. McGee appeals.