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State v. Glagola11/10/2003
Appellant Carol Glagola appeals the decision of the Stark County Court of Common Pleas that found her guilty of reckless homicide with a firearm specification. The following facts give rise to this appeal.
On July 27, 2002, appellant fatally shot her paraplegic live-in boyfriend, David Benna, with a .357 caliber Smith & Wesson revolver. Benna and appellant lived together with appellant's thirteen-year-old son, Ryan, in Brewster. On the day in question, Benna and appellant had been arguing about a prospective trip to Florida and the absence of his Smith & Wesson revolver. Appellant had removed the gun from the residence and placed it in their motor vehicle.
At some point after 9:30 p.m., appellant went outside to retrieve the gun from the vehicle. The fatal shooting occurred while Benna was laying on the floor in a sleeping bag. Following the shooting, appellant placed the gun on top of a trash can and called 911. Brewster Police Officers, Denise Rossiter and Steven Sloan, responded to the call. Upon entering the residence, both officers noticed the smell of alcohol on appellant. Appellant informed the officers that she shot Benna.
The officers arrested appellant and transported her to the Massillon City Jail. On the way to the jail, appellant talked continuously. Appellant's statements were recorded on an in-car video tape machine. While in the cruiser, appellant told Officer Rossiter that the shooting was not a big deal. Appellant also stated that, "I just did it like a fuck-off thing." Appellant continued with her comments. At one point she said, "Yeah, I shot him what's the BFD, what's the problem?" Appellant also inquired about the whereabouts of the gun and asked, "Where's the .357 I shot the asshole with?"
Benna died the following day from the gunshot wound. Upon hearing that Benna died, appellant continued to act normal as if nothing had happened. On the day following the shooting, appellant told the police that she and Benna had not been arguing. Instead, appellant claimed Benna forgot the gun in the vehicle and she went to retrieve it for him. Appellant stated the shooting occurred when she flipped the gun as she handed it to Benna. The gun discharged and the bullet struck Benna in the abdomen.
Appellant also spoke with Dave Sereno, a reporter with The Canton Repository. Appellant informed Sereno that the shooting was an accident and the gun fired as she was handing it to Benna. Appellant also informed Sereno that she had not been arguing with Benna and that she had a couple of drinks prior to the shooting but was not drunk.
On September 10, 2002, the Stark County Grand Jury indicted appellant for one count of murder with a firearm specification. Appellant entered a plea of not guilty and this matter proceeded to trial on December 16, 2002. At trial, appellant claimed the shooting was an accident. Appellant's son, Ryan, testified that the shooting occurred when appellant pulled the gun away from Benna, in order to determine whether it was loaded, and Benna pulled on the barrel of the gun. Ryan estimated that appellant was approximately three feet from Benna when the gun fired.
Criminalist Michael Short, of the Stark County Crime Lab, testified about a variety of tests he performed on the evidence in this case. Short determined that Benna was more than four and one-half feet from the barrel of the gun when it fired due to the lack of gunshot residue on Benna's clothing. At the close of trial, pursuant to the state's request, the court instructed the jury on the lesser offense of reckless homicide.
Following deliberations, the jury returned its verdict finding appellan
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