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IN THE COURT OF APPEALS OF IOWA No. 0-564 / 09-1934 Filed November 24, 2010

STATE OF IOWA, Plaintiff-Appellee, vs. KYLE GENE DEEMER, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Marshall County, Carl D. Baker, Judge.

Defendant appeals his convictions on two counts of first-degree murder. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Kyle Hanson and Becky S. Goettsch, Assistant Attorneys General, and Jennifer Miller, County Attorney, for appellee.

Heard by Vogel, P.J., Vaitheswaran, J., and Huitink, S.J.* Tabor, J., takes no part. *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).

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HUITINK, S.J. I. Background Facts & Proceedings Kyle Deemer (Deemer) was married to Jessica Deemer, and they had a son together. In June 2008, Jessica and the child moved out of their home due to marital problems and moved in with Deemer's first cousin, Bernie Deemer, and his wife, Salowa Deemer. While Jessica was living at their house, Bernie and Salowa heard Deemer threaten her. Deemer said something bad would happen to Jessica, such as that her brakes would fail. He stated he could not handle it if Jessica starting seeing somebody else and he said that if Jessica dated somebody else he would take that person out with a baseball bat. Salowa also heard Deemer say he would not allow the child to have any other father, and the child would be better off in foster care than with Jessica. Deemer made similar remarks to his coworkers. He stated he was going to kill Jessica or wanted to kill her. Deemer told Trevor Kent he wanted to get back together with Jessica and "if he ever caught her with somebody else, he would kill her." Jestin Larrington, who had been the best man when Deemer and Jessica got married, was at Deemer's house one day when Deemer said, "there's the gun I'm gonna shoot Jess with." On Friday, October 17, 2008, Jessica made arrangements to have Salowa watch her child for the weekend, stating she was going to Omaha, Nebraska, with a girlfriend. Actually, Jessica had been seeing a coworker, Bryce Mercer, and was going with him to Gladbrook, Iowa, to meet his parents. Deemer texted

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Jessica several times during the day of October 17, and found out she was not going to be around that weekend, but she would not tell him what she was doing. Deemer talked to Kent at about 5:00 p.m. on October 17, stating he was following Jessica and there was a guy in the car with her. Deemer stated he had first seen them in the parking lot for Principal Financial, where Jessica and Mercer both worked. Jessica called Salowa at 5:26 p.m. and stated Deemer was swerving at them. Salowa testified Jessica stated, "He hit us; we're in the ditch," and she screamed at the top of her lungs. Salowa lost Jessica's call at that time. Kevin Zimple was driving southbound on Highway 14 with his fianc

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