A man charged with raping a 100-year-old woman during a break-in at her southeast Wichita home last fall may be charged with murder in her death three weeks after the attack.
Prosecutors have asked Sedgwick County District Judge David Dahl to grant a new preliminary hearing in the case against Kasey Nesbitt in light of an autopsy report that says the woman’s death from a blood clot is a homicide. The clot developed in her body and traveled to her lungs.
Martha Schell of Wichita died Oct. 21 at a local nursing home and rehabilitation center, 21 days after she was sexually assaulted. Prosecutors in their request for another preliminary hearing, filed May 26, announced their intention to add a count of felony first-degree murder to charges of rape and aggravated burglary already pending against Nesbitt.
In the document, Assistant District Attorney Robert Short says Schell’s death “was a homicide caused by complications from the injuries suffered in the sexual assault.”
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Nesbitt’s initial preliminary hearing took place Dec. 9 – five months before the autopsy report was available. A second hearing is set for 3 p.m. on Thursday, according to court records.
A judge at such proceedings hears testimony and then decides whether there is sufficient evidence to try a case on the count or counts charged.
Nesbitt, 36, has pleaded not guilty to Schell’s rape and the aggravated burglary of her home.
Sedgwick County District Attorney Marc Bennett said Monday the decision to amend the charges against Nesbitt coincides with the release May 12 of Schell’s autopsy report. The documents list her cause of death as “bilateral pulmonary thromboemboli due to deep vein thromboses,” or a blood clot that dislodges from part of the body and moves to the lungs.
The coroner, in her report, wrote that “immobilization is a common predisposing factor for the development of deep vein thromboses” and that Schell was “chairfast” and had “very limited mobility” after her Sept. 30 attack.
Before, she lived independently and moved about with a walker.
Secondary, or contributing, causes of death listed in Schell’s autopsy report are “recent assault,” obesity, dementia and advanced age. “Homicide” is the manner of death.
Whether to charge Nesbitt with murder came down to the coroner’s ruling, Bennett said.
“Was the doctor going to rule that the rape was the cause of death and contributory to that or not? And obviously that was a possibility, so when she ruled that it did, the question was ‘Do we ignore that finding, or do we make that a part of the case here?’ And we elected to charge the case based upon this newest information.
“It’s a simple analysis of the facts as they become available. Obviously this took awhile, but you can’t rush the evidence. It has to come in,” Bennett said.
An attorney listed in court records for Nesbitt did not immediately return a phone call or e-mail message seeking comment.
The case is not the first in Sedgwick County in which a cause of death from a medical condition suffered after an assault has prompted homicide charges. Last year, prosecutors upped charges against David L. White to first-degree murder after a coroner tied Byron Shipman’s fatal aneurysm to “the emotional stress” of being robbed at gunpoint after dropping his grandchildren off at a south Wichita apartment complex on March 25, 2013.
Shipman, 73, died at his home six hours after the hold-up, following complaints of stomach pains to his wife.
White, who pleaded no contest to voluntary manslaughter and other charges in the case, is serving a 24-year prison sentence. He is 28.
“It’s exactly the same kind of situation” as in Schell’s death, Bennett said.
The coroner’s office considered Shipman’s cause and manner of death “for a long time and then finally made the determination, and then we took a look at it and said, ‘Well, do we have a causal connection between that act and the death?’ ” he said.
In Schell’s death, “you’ve got the immobility” resulting from the attack, and “you’ve got the injuries associated with the attack – the broken back, the … profound bruising to the right arm … which again speaks to the cause and effect,” Bennett said.
Nesbitt remains in Sedgwick County Jail on bonds totaling $350,000. In addition to the rape case, he is being held on separate attempted robbery, burglary and theft charges, jail records show.
Schell, who lived alone, told police she was awakened the night of the attack by the sound of someone breaking into her home through its back door. According to a police affidavit, she told a detective she was “thrown around” and “hit on the back side of her head behind her ear.”
Forensic medical testing confirmed the sexual assault.
She sought help at a neighbor’s home the next morning. Wichita police have said the rape was a “kind of a crime of opportunity” for the burglary.
DNA evidence linked Nesbitt to the assault, according to the police affidavit. He was arrested and jailed about a week later.