STATE OF IOWA, Plaintiff - Appellee, vs. KEITH WILSON KELLEY, SR., Defendant - Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 8-753 / 06-1356
Filed October 29, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KEITH WILSON KELLEY, SR.,
Defendant-Appellant.
_______________________________________________________________
Appeal from the Iowa District Court for Scott County, Douglas C.
McDonald, District Associate Judge.
Defendant appeals his conviction for assault with intent to commit sexual
abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney
General, Michael J. Walton, County Attorney, and Mark Gellerman, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Potterfield, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
2
ROBINSON, S.J.
I.
Background Facts & Proceedings
Jackie, who was then sixteen years old, arranged to spend the night of
February 2, 2006, at a friend’s apartment because other members of her family
left town overnight to attend a funeral. While at the apartment, her friend’s father,
the defendant, Keith Kelley, asked her how many times she had had sex, and
said if she was twenty-two years old he would chase her.
Jackie testified that at about 11:15 p.m. she was trying to go to sleep in
the living room, when Kelley asked her to rub his feet. She refused his request
and went to sleep. Jackie stated that at around 12:15 a.m. Kelley woke her up
and again asked her to rub his feet. Kelley then began rubbing Jackie’s leg.
Jackie told him to get off of her, but he continued, and placed his hand on her
inner thigh. Jackie stated she needed to get up to charge her cell phone, and
Kelley let her get up.
Jackie laid down in a bedroom, but Kelley smacked her on the butt, and
she went back out to the living room. Kelley asked, “Is it okay if I jack off?” and
Jackie told him, “No.” Kelley asked her to get him some toilet paper, which she
did, and when she came back he had his pants down past his knees. Kelley
began masturbating, and asked Jackie to watch, but she refused. Kelley then
said he was sorry and asked Jackie not to tell anyone. Jackie called a friend,
Ashley, and tearfully stated Kelley had touched her in her private area.
Kelley was charged with assault with intent to commit sexual abuse, in
violation of Iowa Code section 709.11 (2005). Kelley’s daughter testified she and
3
Jackie went to a friend’s home that evening where they drank alcohol and Jackie
became intoxicated. She testified she and Jackie both went right to sleep after
they got back to the apartment. Kelley testified the girls were intoxicated when
they came back to the apartment that evening.
He stated he was trying to
convert the sofa into a bed for Jackie when she grabbed him around the neck
from the back, and he grabbed her outer thigh in an effort to get her off. He also
stated he accidentally touched the side of her “boob,” and then she let go of him.
The district associate court found Jackie to be the more credible witness,
finding there was no reason she would fabricate such a story. The court found
Kelley’s testimony that Jackie grabbed him around the neck was not credible in
light of his daughter’s testimony that Jackie went to sleep immediately when she
got back to the apartment. The court concluded:
THE COURT CONCLUDES beyond a reasonable doubt that the
Defendant is guilty of the crime of Assault With Intent to Commit
Sexual Abuse, a violation of Iowa Code Section 709.11, by
touching the victim in an inappropriate manner, asking her to
engage in inappropriate physical and sexual activity, and making
her believe that she was in imminent danger of having a sex act
committed on her against her will. The Defendant had the apparent
ability to perform such activity.
The court sentenced Kelley to a term of imprisonment not to exceed two years,
suspended, and placed him on probation for a period of two years.
Kelley
appeals his conviction.
II.
Merits
Kelley contends there is not sufficient evidence in the record to support his
conviction.
He claims the evidence does not establish beyond a reasonable
doubt that he acted with the specific intent to commit sexual abuse. He asserts
4
there is no evidence he intended to commit a sex act with Jackie by force,
against her will, or without her consent. He claims the court’s decision is not
supported by substantial evidence.
We review challenges to the sufficiency of the evidence for the correction
of errors at law. State v. Schmidt, 480 N.W.2d 886, 887 (Iowa 1992). A guilty
verdict is binding on appeal, unless there is not substantial evidence in the record
to support it, or the verdict is clearly against the weight of the evidence. State v.
Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998).
Substantial evidence
means evidence that could convince a rational fact finder that the defendant is
guilty beyond a reasonable doubt. Id.
Kelley was convicted under section 709.11, which provides, “Any person
who commits an assault, as defined in section 708.1, with the intent to commit
sexual abuse . . . is guilty of an aggravated misdemeanor if no injury results.”
The crime of assault with intent to commit sexual abuse requires specific intent.
State v. McNitt, 451 N.W.2d 824, 824 (Iowa 1990). The issue of whether the
facts in a specific case support a finding of intent to commit sexual abuse is for
the fact-finder to decide. State v. Polly, 657 N.W.2d 462, 468 (Iowa 2003).
Jackie said before Kelley touched her he made statements of a sexual
nature to her. She testified, “He asked me how many times I got fingered and
how many times I had sex and how many times I gave head.” She said he also
told her that if she was twenty-two years old he would chase her. Also, she
stated he masturbated in her presence, and asked her to watch. These facts
5
provide substantial evidence to support a finding beyond a reasonable doubt that
Kelley had the specific intent to engage in a sex act with Jackie.
Furthermore, Jackie testified that Kelley’s acts were committed without her
consent and against her will and that she refused his request to rub his feet and
then began rubbing her leg. She said she told him to go and get off of her, but
he put his hand on her inner thigh. She further testified that when she tried to go
into another room he struck her on the buttocks and when he asked if he could
masturbate, she told him, “No,” but he continued to do so anyway.
Jackie’s
testimony provides substantial evidence to support a finding beyond a
reasonable doubt that she was placed in fear he would engage in a sex act with
her against her will, and he had the apparent ability to execute the act.
We conclude there is substantial evidence in the record to support the
conclusion of the district associate court that Kelley was guilty of assault with
intent to commit sexual abuse. We affirm Kelley’s conviction.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
