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State of Iowa v. Kevin James Sellers

January 9, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
KEVIN JAMES SELLERS, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.

The opinion of the court was delivered by: Mullins, J.

The defendant appeals the judgment and sentence entered by the district court, following a trial to the court on the minutes of evidence, resulting in his conviction for attempted murder and two counts of willful injury causing serious injury. AFFIRMED.

Considered by Doyle, P.J., and Mullins and Bower, JJ.

Kevin James Sellers appeals the trial court's judgment and sentence finding him guilty, after a trial to the court on the minutes, of one count of attempted murder and two counts of willful injury causing serious injury. For the reasons stated below we find there was sufficient evidence to support the trial court's verdict. The trial court's judgment and sentence are affirmed.

I. BACKGROUND AND PROCEEDINGS.

On December 15, 2011, Sellers was charged with second degree murder. Sellers entered a plea of not guilty and as a result of negotiations the trial information was amended on May 2, 2012, to charge Sellers with attempted murder in violation of Iowa Code section 707.11 (2011), two counts of willful injury causing serious injury in violation of section 708.4(1), and he was alleged to be a habitual offender under section 902.8. On that same day, May 2, 2012, Sellers filed a written waiver of jury trial and appeared before the district court for a trial on the minutes. After reviewing the minutes of evidence, the district court found Sellers guilty of all three charges and adjudged him to be a habitual offender. Sellers then asked the court to proceed immediately to sentencing and waived his right to a presentence investigation report and his right to additional time to file posttrial motions. The district court sentenced Sellers to serve a maximum of twenty-five years for the attempted murder count, and fifteen years for each of the willful injury counts. The three sentences were ordered to run consecutively for a total term of fifty-five years.

The charges arose out of events that occurred in August, 2011. The minutes of evidence established a timeline of events that ultimately concluded with Laura Welch's death. Sellers and Welch resided together in a Des Moines apartment. In March of 2006, and again in April 2006, police were dispatched to the couple's apartment, and upon arrival they found the couple in the midst of a domestic dispute. On the first occasion Welch informed them that Sellers had punched her in the face, and they observed that she had a cut on her nose and one of her eyes was swollen shut. On the second occasion police could hear yelling coming from within the apartment, and after having a locksmith open the door, Welch informed them that she had called 911 and she was the person they could hear crying. At that same time, Sellers was yelling at the officers and threatening them. The minutes of evidence also include statements by a neighbor that in June, 2011, she heard loud banging noises coming from the apartment, and when she opened her apartment door she saw Welch crawling in the hallway. The next day she observed blood and hair in the hall where Welch had been crawling.

On August 25, 2011, five days before Welch's death, neighbors witnessed Welch returning home, and as she approached Sellers he kicked her in the chest with such force that Welch fell to the ground and began to cry. This event was the basis for one of the two counts of willful injury causing serious injury of which Sellers was found guilty. In a statement made to police after Welch's death, Sellers admitted to having a confrontation with Welch in which he "pushed" her with his foot. According to his statement Welch had left to purchase beer and Sellers thought that she was taking too long. When she returned he took the sack of beer from her and pushed her with his foot for emphasis. The minutes of evidence reflect that Welch had serious injuries to her small bowel that had been inflicted in the days leading up to her death, likely the result of this push.

On August 29, 2011, Sellers and Welch were celebrating Welch's birthday. Around midnight neighbors were awakened by the sounds of an argument coming from the couple's apartment. Later, in the early hours of August 30, neighbors continued to hear arguing and the sounds of a fight, including the sound of a loud hit. At 10:18 on the morning of August 30, Sellers called 911 and reported that Welch was not breathing. When medics arrived they discovered that Welch was not breathing and did not have a pulse. She was taken to the hospital, transferred to intensive care and placed on life support. She died at 10:25 p.m. after family members made the decision to withdraw life support.

An autopsy determined that Welch had suffered a subdural hemorrhage, a hemorrhage in the subarachnoid space on the right temporal lobe, and traumatic axonal injury all within hours of her death. Welch also had a contusion on her forehead consistent with being struck with a fist. The medical examiner determined that the cause death was multiple blunt force trauma and that the manner of death was a homicide. Welch also had bruises on her arm and shoulder consistent with fingertips, numerous rib fractures, and multiple linear lacerations to her stomach all of which had occurred within hours of her death.

The injuries to her stomach and ribs were serious and the basis for the other count of willful injury causing serious injury, of which Sellers was found guilty.

The minutes of evidence contain several different versions of events as recounted by Sellers. He told the 911 dispatcher that he had no idea Welch was not breathing. He told the first responders at the scene that he and Welch had slept in the same bed and he could hear her snoring all night long and into the morning, but later she was not snoring and he could not wake her. He told police at the scene he and Welch had gotten very drunk the night before and he could not remember how the night ended, but that when he awoke in that morning at 6:00 a.m. he noticed Welch was on the floor and breathing. Later he awoke again and noticed she was not breathing, and he gave her CPR before calling 911. On the afternoon of August 31, Sellers told police a similar story.

Several months later, after the medical examiner determined that Welch's death was a homicide, Sellers was interviewed again. He admitted that he had assaulted Welch on various occasions in the past but maintained that he did not have memory of what happened the night before Welch's death. Sellers did admit that it would be pretty hard to cause Welch's injuries and that the most probable explanation was that he was responsible for them. At the conclusion of this interview Sellers was arrested.

In November and December 2011, Sellers was an inmate at the Polk County Jail and in the same pod as Larry Cox. Sellers discussed the circumstances around his arrest with Cox on two occasions. Sellers told Cox that he did remember what happened the night of August 29 and that he was not truthful with police. Sellers told Cox that he and Welch had an argument, Sellers assaulted her and knocked her unconscious, and later, when he woke up, Welch was still unconscious on the floor, and Sellers spent the next few hours thinking of a way to explain her injuries. Sellers also stated that he had pressured Welch's family to discontinue life support for Welch out of fear that she would regain consciousness and remember what had occurred. After Sellers told these things to Cox, Cox returned to his cell, wrote down the conversation, and ...


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