Former Swim Instructor Acquitted of Child Sex Abuse

Washington County Circuit Court in downtown Hillsboro.
(Emily E. Smith/The Oregonian)

By Emily E. Smith | The Oregonian/OregonLive 

Jurors acquitted a former Sunset Athletic Club swim instructor of child sex abuse Thursday after his defense attorney argued that the teenager had suffered a "wardrobe malfunction" when he took his class of 6-year-olds into the sauna.

Mitchell Kelly, now 18, was arrested last summer on accusations that he coaxed two girls into various positions and touched them sexually while he was exposed.

But the defense described Kelly as a kind, sweet teenager who was active in his community. He played in the school marching band, sang in musicals, held after-school jobs and had ambitions to become an Eagle Scout – the highest rank in the Boy Scouts of America.

But more importantly, defense lawyer Timothy Bowman argued, were the thin, tattered shorts Kelly wore on the day of the incident.

"Those shorts clear him," Bowman said. "Makes all of the other pieces click into place."

Sunset Athletic Club, Millwood Hills, west of Portland, Oregon

On the witness stand Wednesday in Washington County Circuit Judge Jim Fun's courtroom, the teen said he'd just finished his junior year at Sunset High School and was working as a lifeguard and swim teacher at the Bethany club on June 23.

That day, Kelly took two boys and two girls into the sauna after their pool time. He liked to show them other parts of the club's aquatic area during class while he talked to them about water safety, he said.

Sunset Athletic Club hot tub where abuse didn't occur

Inside the steam room, the boys were busy chatting and goofing off while Kelly instructed the girls on some yoga poses, he said. The girls were up on the benches as he tried to guide them into a tabletop pose on hands and knees, a downward dog pose with their rear ends in the air and finally a push-up position.

The defendant testified he was shirtless and wearing only some shorts that he'd been using as swim trunks. Days earlier, the zipper on the shorts had broken, and his mother had sewn it partially closed, he said.

As he was helping the girls, he said, he heard one of them say, "Ew! What's that?"

"I have no idea what she's talking about," Kelly testified. "I look down and I am exposed to these children."

He realized then that his button had come undone and his shorts had fallen down, he said.

The defendant paused, tearing up. He continued: "I turned to the wall, I buttoned myself up and I ended class."

The girl continued asking him questions about what she'd seen, Kelly said.

"I remember telling her, 'Your parents will tell you when you're older,'" he testified.

The teen was embarrassed, he said, and didn't know what to do. So, he went to teach his next class.

Mitchell Kelly

But soon, sheriff's deputies arrived and asked to speak with him.

Kelly indicated to deputies that he might have touched the girls inappropriately and was possibly aroused, according to deputies. But his lawyer argued that those statements were the result of coercion and twisting his words.

I have only one question regarding this trial and that is, 'how could a kid who couldn't afford a pair of functional swimming trunks, afford such a great lawyer'?

On cross-examination, prosecutor Paul Maloney questioned Kelly's truthfulness. In tears, Kelly blurted the Scout Oath: "On my honor I will do my best ... To keep myself physically strong, mentally awake, and morally straight."

"There is an alternative explanation to this being an accident," Maloney told jurors in his closing arguments. "It's that this was on purpose."

Kelly took the children into a secluded place where they weren't supposed to be, he said, and both girls described the same set of facts.

"They are worthy of your belief," he said.

Kelly faced four Measure-11 charges: two counts each of first-degree sexual abuse and using a child in a display of sexual conduct.

Jurors deliberated for much of Thursday afternoon before reaching a verdict. They found him not guilty on all counts.

-- Emily E. Smith