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State v. Demarco

Court of Appeals of Ohio, Eleventh District, Portage

November 13, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
DAVID A. DEMARCO, Defendant-Appellant.

         Criminal Appeal from the Portage County Court of Common Pleas. Case No. 2015 CR 00381.

          Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant Prosecutor (For Plaintiff-Appellee).

          Kimberly Anne Valenti, (For Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, David A. Demarco, appeals from the May 17, 2016 judgment of conviction entered by the Portage County Court of Common Pleas following a jury trial. The trial court's judgment is affirmed.

         Procedural History

         {¶2} On May 28, 2015, appellant was indicted by the Portage County Grand Jury on one count of Discharge of a Firearm on or Near a Prohibited Premises, a third-degree felony, in violation of R.C. 2923.162(A)(3). The indictment alleged appellant discharged a firearm "upon or over a public road or highway, and the violation created a substantial risk of physical harm to any person or caused serious physical harm to property." The charge included a firearm specification under R.C. 2929.14 & R.C. 2941.145. Appellant was represented by counsel and entered a plea of not guilty.

         {¶3} The trial court granted appellant's motion for a competency and sanity evaluation. A hearing was held on September 21, 2015. The parties stipulated to the report that concluded appellant was competent to stand trial and was sane at the time of the offense.

         {¶4} Trial counsel filed a motion to withdraw as counsel on September 28, 2015. The trial court granted the motion and appointed new counsel to represent appellant because of his indigent status.

         {¶5} Another hearing regarding appellant's competency was held on January 15, 2016. Appellant refused to undergo another competency evaluation. The trial court indicated it would proceed pursuant to the prior determination that appellant was competent to stand trial and was sane at the time of the offense.

         {¶6} A jury trial was held on February 9 and February 10, 2016. On February 9, 2016, appellant stated on the record that he wished to represent himself at trial; however, he refused to sign a waiver of counsel. Appellant represented himself on the first day of trial and had stand-by counsel. Appellant elected to have counsel take an active role in his representation on the second day of trial.

         {¶7} A motion for acquittal was made pursuant to Crim.R. 29 both at the close of the state's case and at the close of all the evidence. Both motions were denied by the trial court.

         {¶8} Appellant was found guilty on Count 1 and guilty of the firearm specification. The jury also found the state did prove, beyond a reasonable doubt, that appellant created a substantial risk of physical harm to any person or caused serious physical harm to property.

         {¶9} On May 16, 2016, appellant was sentenced to a term of two years in prison on Count 1 and three years in prison on the specification, to be served consecutive to each other. Appellant received a jail time credit of 363 days. He was also ordered to pay a fine and court costs. Appellant was represented by counsel at his sentencing hearing.

         {¶10} On August 2, 2016, appellant filed a motion for leave to file a delayed appeal with a notice of appeal attached. This court granted the motion on September 26, 2016.

         Trial Testimony

         {¶11} The jury heard the following testimony at trial.

         {¶12} Ronald Ruggles testified for the state. Ronald testified that he lives at 3321 McClintocksburg Road, located in the city of Diamond, Ohio, which is in Portage County. Ronald affirmed that McClintocksburg Road is a "regular public roadway." He lives there with his fiancé, Samantha Reese, and his two daughters. His daughter A.R. is 4 years old and his daughter LR. is 2 months old.

         {¶13} On the night of May 16, 2015, Ronald was awakened by what "sounded like something was falling off a shelf in [A.R.'s] room."

         {¶14} The next morning he noticed a hole in the siding of the house that led into A.R.'s room. When he and Samantha went into the room and pulled A.R.'s bed away from the wall, they discovered the hole went through the drywall, into the house, and into the box spring of A.R.'s bed. They called the police.

         {¶15} Sergeant Harry Muir testified that he is employed with the Portage County Sheriffs Office, and he is certified by the state of Ohio as a firearms instructor. He holds certifications in semi-automatic pistol, semi-automatic carbine, sub-machine gun, and shotgun.

         {¶16} On May 17, 2015, he responded to the call at 3321 McClintocksburg Road with Deputy Burris. They were called for a report that a house had been shot with a bullet.

         {¶17} They observed a small hole, about the size of the end of Sergeant Muir's pinky finger, in the side of the house that went through the drywall in the baseboard trim and into the box spring of A.R.'s bed. Sergeant Muir cut open the cloth padding at the bottom side of the box spring, and recovered a bullet sitting in the cotton padding inside the box spring itself. The bullet measured .38 caliber.

         {¶18} Samantha Reese testified that A.R. had been sleeping right above where the bullet went through the wall.

         {¶19} To determine the trajectory of the bullet, the police used the bottom rod of a metal clothes hanger. Sergeant Muir testified: "When we put the rod through the - -through the outside hole and Deputy Burris confirmed that it had gone through the inside hole; however, it was a flat trajectory, meaning that it had been shot from relatively close range and the trajectory of the bullet was flat rather than a long arch, so it was essentially a straight shot."

         {¶20} Deputy Burris took a photo in the direction the rod was pointing. When he was shown that photograph, Sergeant Muir testified: "Yes, I am pictured. I'm standing beside the cruiser. * * * I had him line me up with the direction of the rod. So I had him - - I had him direct me * * * ...


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