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State v. Sallay

Court of Appeal of Iowa

June 26, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
DERRELL EARL SALLAY, Defendant-Appellant.

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

Derrell Sallay appeals from his convictions of third-degree kidnapping and willful injury, both as an habitual offender.

Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brian Williams, Assistant County Attorney, for appellee.

Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

POTTERFIELD, J.

Derrell Sallay appeals from his convictions of third-degree kidnapping and willful injury, both as an habitual offender. He challenges the sufficiency of the evidence that he intended to cause serious injury as to both charges and the element of removal or confinement as to the kidnapping charge. He also contends the verdicts are contrary to the weight of the evidence. Finally, Sallay argues the district court failed to give adequate reasons for his sentencing. Finding substantial evidence to sustain the convictions, no abuse of discretion in the denial of the motion for new trial, and sufficient reasons for the sentencing, we affirm.

I. Background Facts and Proceedings.

A reasonable jury could find the following facts. Derrell Sallay and S.E. had an on-again, off-again relationship for about ten years and occasionally lived together. Sallay knew S.E. had surgery to remove a brain tumor in January 2011. S.E. and Sallay renewed their relationship in April 2011 and began living together in May 2011. S.E.'s three children and a roommate, Missy, were also living in the residence.

Shortly after midnight, on September 12, 2011, S.E. received a phone call from Sallay telling her to pick him up at a bar. About the time S.E. was leaving the apartment, Missy received a call from Sallay on her phone telling her to "[t]ell that bitch to hurry up." S.E. went to Rumors Bar to get Sallay; she found him inside, "fighting—arguing—arguing with his brother. Kind of fighting him."

Sallay was angry when S.E. picked him up. Once the two were in the vehicle, Sallay started to call S.E. names, accused her of sleeping with others, and punched her in the side of her face. S.E. drove back to her apartment, and Sallay continued to yell at her. S.E. got out of the van, and Sallay "came up behind me and started hitting me again." Sallay punched her repeatedly on both sides of her head.

S.E. was bleeding from her mouth as she made her way up the interior stairs to their apartment, [1] but Sallay grabbed her leg and pulled her down the stairs. S.E. "was hanging on to the railing and beating the wall for Missy to come help" her. The noise woke up a neighbor who overheard the "blood curdling scream and some pounding." The neighbor testified, "It really did sound like somebody was dying." S.E. estimated she was hit at least ten or fifteen times, primarily in the "[h]ead area."

During the struggle on the stairs, S.E.'s keys and phone were knocked from her hands. When they were later recovered by police, those items were splattered with S.E.'s blood.

Though S.E. attempted to minimize the situation when she testified at trial, the evidence presented and S.E.'s statements on the day of the incident provide substantial evidence that Sallay dragged S.E. to the bottom of the stairs, leaving rug burns down S.E.'s back, and a trail of blood splatter on the stairs, wall, and carpet. Sallay dragged S.E. outside, pushed her down, and was screaming at her. S.E. testified he "was obviously going to hit me again" so she got into a "fetal position" on her back, "with [her] feet in the air trying to protect" herself. She told him, "[S]top. You're going to kill me. You know I just had surgery."

Missy came out of the apartment building and saw a "frantic" and crying S.E. on the ground[2] with "blood all over her face." Missy stated Sallay made eye contact with her and his demeanor was "not any way I ha[d] ever seen him before." She went back inside with the children and called the police.

The police arrived, but Sallay and S.E. were gone. The police began to search the woods for S.E. S.E.'s sisters arrived and helped with the search. After less than an hour, S.E. was found. Sergeant Kye Ritcher testified S.E. was "stunned, " stumbling, and "out of it." S.E.'s sister, Jennifer, testified, "She walked out of the woods like a zombie . . . . Her mouth wasn't closed. Her eyes were glazed." Her face was bloody and covered in dirt. At some point, S.E.'s bra was torn in the front. It was later collected as evidence, blood soaked and covered in burs from the woods. S.E. was crying as she told police and her sisters that Sallay had dragged her into the woods. S.E. also tried to tell ...


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