Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas. Case
No. 2015 CR 00381.
V. Vigluicci, Portage County Prosecutor, and Kristina Reilly,
Assistant Prosecutor (For Plaintiff-Appellee).
Kimberly Anne Valenti, (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
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.
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
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.
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
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
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.
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.
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.
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.
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.
The jury heard the following testimony at trial.
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.
On the night of May 16, 2015, Ronald was awakened by what
"sounded like something was falling off a shelf in
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
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.
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.
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.
Samantha Reese testified that A.R. had been sleeping right
above where the bullet went through the wall.
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."
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 * * * ...