[Cite as State v. Hall, 2024-Ohio-1235.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO,

Appellee,

 - vs -

TIMOTHY G. HALL,

Appellant.

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CASE NO. CA2023-06-047

O P I N I O N

4/1/2024

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS

Case No. 19CR035473

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant 

Prosecuting Attorney, for appellee.

Russell S. Bensing, for appellant.

HENDRICKSON, J.

{¶ 1} Appellant, Timothy G. Hall, appeals the decision of the Warren County Court 

of Common Pleas summarily denying his petition for postconviction relief without a 

hearing after a jury found him guilty of four counts of rape and three counts of sexual 

battery that he perpetrated against his then preteen and teenaged stepdaughter, E.A., in 

1995, 1997, and 1998. For the reasons outlined below, we affirm the trial court's decision.
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Facts and Procedural History

{¶ 2} On July 1, 2019, the Warren County Grand Jury returned an indictment 

charging Hall with ten counts of first-degree felony rape in violation of R.C. 

2907.02(A)(1)(b), 2907.02(A)(1)(c), or 2907.02(A)(2). The indictment also charged Hall 

with seven counts of third-degree felony sexual battery in violation of R.C. 2907.03(A)(5). 

The charges arose after it was alleged Hall had engaged in "sexual conduct" with two 

minor children, his adopted daughter, A.Z., and his stepdaughter, E.A., during different 

periods of the 1990s.

The Changing Definition of "Sexual Conduct" Under R.C. 2907.01(A)

{¶ 3} The Ohio Revised Code has provided several different definitions of "sexual 

conduct" under R.C. 2907.01(A). Effective January 1, 1974, the term "sexual conduct"

was initially defined to mean:

vaginal intercourse between a male and female, anal 

intercourse, fellatio, and cunnilingus between persons 

regardless of sex. Penetration, however slight, is sufficient to 

complete vaginal or anal intercourse.

{¶ 4} However, effective September 3, 1996, the term "sexual conduct" was 

revised to mean:

vaginal intercourse between a male and female; anal 

intercourse, fellatio, and cunnilingus between persons 

regardless of sex; and the insertion, however slight, of any 

part of the body or any instrument, apparatus, or other object 

into the vaginal or anal opening of another. Penetration, 

however slight, is sufficient to complete vaginal or anal 

intercourse.

(Emphasis added.)

{¶ 5} The definition of "sexual conduct" was revised in 1996 so that the offense 

of felonious sexual penetration found under former R.C. 2907.12 would merge into the 

offense of rape. See Doe v. Leis, 1st Dist. Hamilton No. C-050591, 2006-Ohio-4507, ¶ 
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12 (noting that after September 3, 1996 "conduct that would formerly have constituted 

felonious sexual penetration was defined as 'sexual conduct' under R.C. 2907.01[A] and 

became prohibited conduct under the rape statute"); State v. Bolling, 2nd Dist. 

Montgomery No. 20225, 2005-Ohio-2509, ¶ 28 (noting that the felonious sexual 

penetration statute found under former R.C. 2907.12 "was repealed effective September 

3, 1996, and the former conduct constituting [the offense of felonious sexual penetration] 

was redefined as 'sexual conduct' and included in the new and current rape statute"); and 

State v. Rowland, 10th Dist. Franklin No. 01AP-368, 2001 Ohio App. LEXIS 4306, *9, fn. 

2 (Sept. 25, 2001) (noting that the purpose and effect of redefining the term "sexual 

conduct" was to "specifically clarify that what formerly was defined as 'felonious sexual 

penetration' [was] now rape").

{¶ 6} Effective March 10, 1998, the term "sexual conduct" under R.C. 2907.01(A) 

was revised again to mean:

vaginal intercourse between a male and female; anal 

intercourse, fellatio, and cunnilingus between persons 

regardless of sex; and, without privilege to do so, the insertion, 

however slight, of any part of the body or any instrument, 

apparatus, or other object into the vaginal or anal opening of 

another. Penetration, however slight, is sufficient to complete 

vaginal or anal intercourse.

(Emphasis added.) There have been no further revisions to the definition of the term 

"sexual conduct" under R.C. 2907.01(A) relevant to this appeal.

Hall's Five-Day Jury Trial

{¶ 7} On August 24 through August 28, 2020, the matter proceeded to a five-day 

jury trial. When the trial started, Hall faced seven charges related to his alleged sexual 

abuse of his adopted daughter, A.Z. Those charges were set forth in Counts 1, 2, 3, 4, 5, 
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7, and 8 of the indictment.1 Count 1 charged Hall with raping A.Z. between July 1, 1991 

through June 30, 1993 in violation of R.C. 2907.02(A)(1)(b). Pursuant to that statute, no 

person shall engage in "sexual conduct" with another who is not the spouse of the 

offender when "[t]he other person is less than thirteen years of age, whether or not the 

offender knows the age of the other person." Counts 2, 4, and 7 charged Hall with raping 

A.Z. between July 1, 1991 through June 30, 1993, July 1, 1993 through June 30, 1995, 

and July 1, 1994 through June 30, 1996 in violation of R.C. 2907.02(A)(2). Pursuant to 

that statute, "[n]o person shall engage in sexual conduct with another when the offender 

purposely compels the other person to submit by force or threat of force." Counts 3, 5, 

and 8 charged Hall with sexually battering A.Z. between July 1, 1991 through June 30, 

1993, July 1, 1993 through June 30, 1995, and July 1, 1994 through June 30, 1996 in 

violation of R.C. 2907.03(A)(5). Pursuant to that statute, no person shall engage in 

"sexual conduct" with another, not the spouse of the offender, when "[t]he offender is the 

other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or 

person in loco parentis of the other person."

{¶ 8} Hall also faced seven charges related to his sexual abuse of his 

stepdaughter, E.A. Those charges were set forth in Counts 9, 10, 11, 12, 13, 14, and 15 

of the indictment. Count 9 charged Hall with raping E.A. between June 1, 1995 through 

October 1, 1995 in violation of R.C. 2907.02(A)(1)(b), the same Revised Code section 

Hall was alleged to have violated in Count 1. Count 10 charged Hall with raping E.A. 

between June 1, 1995 through October 1, 1995 in violation of R.C. 2907.02(A)(2), the 

same Revised Code section Hall was alleged to have violated in Counts 2 and 4. Count 

1. We note, just as we did in our original decision affirming Hall's conviction on direct appeal, that Count 6, 

which alleged Hall had raped A.Z. sometime between July 1, 1994 and June 30, 1996 in violation of R.C.

2907.02(A)(1)(c), was nolled by the state prior to trial.
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11 charged Hall with sexually battering E.A. between June 1, 1995 through October 1, 

1995 in violation of R.C. 2907.03(A)(5), the same Revised Code section Hall was alleged 

to have violated in Counts 3, 5, and 8. Count 12 charged Hall with raping E.A. between 

June 1, 1997 through October 1, 1997 in violation of R.C. 2907.02(A)(2), the same 

Revised Code Section Hall was alleged to have violated in Counts 2, 4, and 10. Count 

13 charged Hall with sexually battering E.A. between June 1, 1997 through October 1, 

1997 in violation of R.C. 2907.03(A)(5), the same Revised Code section Hall was alleged 

to have violated in Counts 3, 5, 8, and 11. Count 14 charged Hall with raping E.A. between 

August 1, 1998 through December 31, 1998 in violation of R.C. 2907.02(A)(2), the same 

Revised Code section Hall was alleged to have violated in Counts 2, 4, 10, and 12. Count 

15 charged Hall with sexually battering E.A. on August 1, 1998 through December 31, 

1998 in violation of R.C. 2907.03(A)(5), the same Revised Code section Hall was alleged 

to have violated in Counts 3, 5, 8, 11, and 13.

{¶ 9} On the first day of trial, August 24, 2020, the jury heard testimony regarding 

Hall's alleged sexual abuse of his adopted daughter, A.Z. This included A.Z. testifying to 

several instances where Hall had allegedly digitally penetrated her vagina both prior to 

and after she turned 13 years old. Upon the first day of trial coming to an end, and once 

the jury left the courtroom, the trial court addressed the parties and noted a potential issue 

regarding the pre-September 3, 1996 definition of "sexual conduct" applicable to Hall's 

alleged sexual abuse of A.Z. set forth in Counts 1, 2, 3, 4, 5, 7, and 8 of the indictment. 

Specifically, as the trial court stated:

The definition of sexual conduct seems drastically different in 

1996, the jury instruction for that. * * * This is for offenses 

committed before 7/1/96. It says sexual conduct means 

vaginal intercourse between a male and female, anal 

intercourse, fellatio, cunnilingus between persons regardless 

of sex. Penetration, however, slight, is sufficient to complete 

vaginal-anal intercourse. * * * There's no mention of insertion 
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of other objects into the vaginal or other cavities of the body. 

Is — is there something I'm missing here?

The state responded and asked the trial court to hold off on discussing that issue until the 

next morning so that both parties could have the opportunity to research the matter 

further. The trial court agreed and recessed for the day.

{¶ 10} The second day of trial began on August 25, 2020 with Hall arguing that 

"the law's pretty clear that, as a matter of law," the state could not move forward on Counts 

1, 2, 3, 4, 5, 7, and 8 related to Hall's alleged sexual abuse of A.Z. between July 1, 1991 

through June 30, 1996 given that A.Z. testified to only digital penetration rather than 

vaginal or anal intercourse. To support this argument, Hall correctly noted that prior to 

September 3, 1996, "felonious sexual penetration was digital penetration and rape was a 

separate charge." Therefore, according to Hall, as a matter of law, the state could not go 

forward "on the charges of rape that [were] based on digital penetration before 1996 when 

the law changed," because "by definition, the improper crime was presented to the grand 

jury."

{¶ 11} To this, the trial court responded to Hall's argument and stated, in pertinent 

part, the following:

Listen, the bottom line is I'm not in a position as I sit here right 

at this moment after I've heard less than half of one witness 

to make any determinations on that. * * * I don't know what the 

rest of the evidence is going to be. There may be evidence 

that does match this. * * * I think a Rule 29 at the close of the 

State's case would be the appropriate time to deal with this 

issue, and not in the middle of the first witness. * * * That's 

why I think it's just premature.

{¶ 12} Following this exchange, as well as further discussion about the release of 

certain grand jury testimony to Hall, the state resumed its direct examination of A.Z. 

Shortly thereafter, as the state's direct examination of A.Z. progressed, the trial court 

requested a sidebar with the parties, following which the trial court excused the jury from 
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the courtroom. Once the jury had exited from the courtroom, the trial court addressed the 

parties again and noted that, because the definition of "sexual conduct" had changed 

effective September 3, 1996, it was in a "spot" given that it "didn't hear anything else with 

the continuation of this particular alleged victim" that would support a finding that Hall had 

engaged in "sexual conduct" with A.Z. as that term was originally defined in 1974. The 

trial court then noted that it felt the need to correct this issue now before the trial 

progressed any further because the testimony offered by A.Z. does not "fit" into the preSeptember 3, 1996 definition of "sexual conduct" applicable to Counts 1, 2, 3, 4, 5, 7, and 

8 of the indictment. To this, the state agreed and noted that "we're stuck" with the original 

"1974 definition of sexual conduct, in terms of the allegations that cover the time period 

of [A.Z.]" The trial court then stated:

Okay. So then the question now becomes, do I allow you to 

continue with — with your case in chief with [A.Z.] as 404(B)? 

That's — that's where I'm at right now. * * * Or do I simply * * 

* give an instruction and tell the jury, look, this is what's 

happened. The definition of sexual conduct pre-1996 was 

different and it's it doesn't fit up with what's — what's been 

testified to so — that I'm dismissing those charges, and then 

give a strong instruction with regard to 404(B). That's where 

I'm at.

{¶ 13} Continuing, the trial court then noted that it was "trying to salvage some —

something here" when considering everyone had "invested a lot of time and energy to get 

to this point and I haven't heard any other alternatives." Hall responded and argued that 

he did not think it was "fixable" and that there was no curative instruction the trial court 

could provide to the jury "that would cure the taint and the prejudice that has occurred"

given the nature of A.Z.'s testimony. Hall also argued that a curative instruction would not 

be sufficient because:

if you tell this jury why, that the, quote, that some people might 

consider to be a technicality of law because the [state] didn't 

properly indict the case, that jury is irreparably tainted. You 
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can't fix that with a curative instruction.

{¶ 14} Hall instead argued that "it has to be a new jury. And we have to start over, 

whether we like it or not." The trial court disagreed with Hall and instead determined that 

it would make a "course correction" by dismissing Counts 1, 2, 3, 4, 5, 7, and 8 related to 

Hall's alleged sexual abuse of A.Z. and provide the jury with a limiting instruction on the 

manner in which it could consider A.Z.'s testimony as "other-acts" evidence under Evid.R. 

404(B). Despite the trial court noting its intentions, Hall nevertheless continued arguing 

against the trial court allowing the trial to continue with only a curative instruction being 

provided to the jury because, at that point, the jury had already heard A.Z.'s testimony 

and "[y]ou can't unring the bell." But, like before, the trial court responded to Hall's 

argument by stating the jury "would be entitled to hear that anyway under 404(B)." 

{¶ 15} Changing tactics, Hall then argued, in pertinent part, the following:

Okay. In a different context. Context means everything. 

Coming in as a 404(B) to say this is uncharged criminal 

conduct, you can't consider for any other reason for the —

other than the pattern under 404(B).

Here, they will have heard it first saying, the State is 

presenting this evidence in the context of guilt beyond a 

reasonable doubt. Those are two separate standards that —

and the — and to say that a jury — and these are laypeople.

I mean, they've got — I - I have tried to explain these issues 

to people who are laypeople. They don't understand. These 

are — look at the lawyers in here. Look at the wealth of legal 

knowledge and wisdom we have and look at how we're 

struggling with it.

And you're going to tell me that a jury isn't going to struggle 

with that or wonder why?

{¶ 16} Unpersuaded, the trial court responded and stated, "[t]hey'd probably 

struggle with it less because they're not lawyers and they would simply say, oh, the Judge 

said this. I'm going to — I'm going to take that — to the bank." Hall then responded, 
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"[b]ut the bottom line is, Judge, if you want to — if you want to assure that Tim Hall gets 

a clean and fair due process, it's got to be a mistrial. A curative instruction doesn't make 

it." The trial court then took a short recess to consider the matter further. A brief time

later, the trial resumed with the trial court stating:

All right. We're back on the record outside the presence of 

the jury. The Court is probably a little hasty in taking this 

recess and allowing this — this motion to be made at this point 

in time.

I don't know why, like in any other case, we wouldn't allow the 

State to continue to proceed. I think we all know where this is 

heading. But the appropriate time for a Rule 29 motion to 

dismiss those counts of the indictment would be at the close 

of the State's case.

I'm giving everybody advance notice that, based on what the 

Court has heard and the — and the concessions appears to 

be made that it would be the Court's intention to grant that 

motion at that time. But it's not right now.

So knowing where this is going with [A.Z.] and those counts 

relating to her, I'm going to allow the State to continue 

presenting their case in chief, and then let's move this along. 

We know where this is going, and then I will make a ruling on 

the — the Rule 29 and we'll go from there. Motion for mistrial 

is denied.

{¶ 17} The jury was then returned to the courtroom and A.Z.'s testimony on direct 

examination continued. Following A.Z. testimony about several telephone calls, 

voicemails, and text messages that she had received from Hall wherein Hall admitting to 

inappropriately touching her as a child, the state concluded its direct examination of A.Z. 

and the trial court recessed for lunch. The trial thereafter resumed with Hall's crossexamination of A.Z., during which Hall questioned A.Z. about a litany of topics. This 

included, among things, Hall questioning A.Z. regarding the manner in which she got the 

"ball rolling" with the investigation into her allegations of sexual abuse against Hall; 

several photographs depicting A.Z. with Hall and his wife, B.H., during loving, family 
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moments like when A.Z.'s husband asked A.Z. to marry him while at Hall's and B.H.'s 

house in 2003; and why A.Z. left out certain, specific details in her written statement 

outlining her allegations against Hall that she had provided the Springboro Police 

Department. This also included Hall questioning A.Z. about why she did not simply go to 

her mother's house that was just a short distance away rather than endure Hall's alleged 

sexual abuse, why A.Z. did not tell anybody that Hall was sexually abusing her during 

Hall's and her mother's divorce proceedings, and why the teacher that A.Z. claims she 

reported Hall's sexual abuse during her sophomore year of high school, N.J., did not 

report A.Z.'s allegations despite N.J. being a "mandatory reporter." 

{¶ 18} Once Hall's cross-examination of A.Z. concluded, the state then continued 

with its case-in-chief by calling to the stand A.Z.'s mother, S.H. The second day of trial 

concluded with Hall's cross-examination of S.H. The third day of trial, August 26, 2020, 

consisted of E.A. testifying about the sexual abuse Hall had perpetrated against her both 

before and after she turned 13 years old. This included E.A. testifying to an incident 

where she remembers Hall having raped her at their home on Eyler Drive in Clearcreek 

Township, Warren County, Ohio in the summer of 1995 when she was 12 years. E.A. 

also testified about Hall raping her at their home on Fairway Drive in Springboro, Warren 

County, Ohio in the summer of 1997 and the fall of 1998 when she was 14 and 15 years 

old, respectively. The fourth day of trial began with the state calling two detectives to the 

stand to testify, Detective Kevin Barton with the Clearcreek Township Police Department 

and Detective Terry Dunkel with the Springboro Police Department. Once their testimony 

concluded, the state rested and moved for the admission of its exhibits, the majority of 

which were admitted into evidence without objection. 

{¶ 19} Following the admission of the state's exhibits, Hall then moved for a 

Crim.R. 29(A) motion for acquittal on Counts 1, 2, 3, 4, 5, 7, and 8 on the indictment 
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related to his alleged sexual abuse of A.Z. To support this claim, Hall argued that "the 

definition that was not met, legal definition of penetration by a penis." The state agreed 

that "there was a change in the law" regarding the definition of "sexual conduct" that 

limited it to "vaginal intercourse, anal intercourse and two forms of sexual oral 

intercourse." Because of this change in the law, the state noted that it did not "really have 

a good argument" and agreed that "the testimony — that [A.Z.] does not meet that 

standard." Upon hearing this, the trial court granted Hall's Crim.R. 29(A) motion for 

acquittal on Counts 1, 2, 3, 4, 5, 7, and 8 of the indictment related to Hall's alleged sexual 

abuse of A.Z. between July 1, 1991 through June 30, 1996. In so holding, the trial court 

initially stated that, "[t]he Court finds that the testimony of [A.Z.] related solely to digital 

penetration, and that all of the offenses relating to her occurred prior to July 1st of 1996." 

The trial court then stated:

There are no allegations concerning [A.Z.] post that date. It's 

clear that the definition of sexual conduct, which is alleged in 

all of those counts that have been moved by the defense to 

be dismissed deal with digital penetration only. And, therefore, 

they do not — they do not satisfy the legal definition of sexual 

conduct as alleged in the indictment for rape or sexual battery. 

So, therefore, Counts 1, 2, 3, 4, 5, 7 and 8 will be dismissed.

{¶ 20} Following its decision on Hall's Crim.R. 29(A) motion for acquittal, the trial 

court then denied Hall's renewed motion for a mistrial that he had filed with the trial court 

on the morning of the third day of trial. In so holding, the trial court stated:

At this time, and again, the Court has obviously struggled with 

this this week and — and, again, in — there — there's several 

different ways that I can look at it.

I believe that — that allowing the State — again, if I look at it, 

that I grant your motion and we come back and we try this 

case again, the Court believes that the — the next jury is going 

to hear the exact same testimony, only in — in a 404(B) 

context versus the — those additional counts from the 

indictment.
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So I — the Court believes that I would be in the exact same 

position, just with a different jury at that time. I don't think that 

at this point it time, there's been any demonstration that the 

prejudicial effect outweighs the probative value. Clearly prior 

acts, other acts are permitted under evidence rule 404(B).

So, at this time, the Court is going to deny your request for a 

mistrial.

{¶ 21} Upon denying Hall's renewed motion for a mistrial, the trial court then 

recessed for lunch. After returning from lunch recess, the state formally rested and moved 

for the admission of its exhibits. Once this happened, the trial court addressed the jury 

and stated, "All right. Thank you. All right. Ladies and gentlemen of the jury, I need you 

to pay close attention right at this moment." The trial court then instructed the jury as 

follows.

The Court has withdrawn from your consideration Counts 1, 

2, 3, 4, 5, 7 and 8. You are not to speculate as to why the 

Court has withdrawn them. Evidence relating to those counts 

was received about the commission of other acts, other than 

the remaining offenses with which [Hall] is charged in this trial, 

specifically the allegations made by [A.Z.], that evidence was 

allowed for a limited purpose. It was not received and you 

may not consider it to prove the character of [Hall] in order to 

show that he acted in conformity with that character in this 

case with the remaining charges.

If you find at the close of the case that the evidence of the 

other acts is true and that [Hall] committed them, you may 

consider that evidence only for the purpose of deciding 

whether it tends to prove [Hall's] motive, opportunity, intent, 

preparation, plan, knowledge, identity or absence of mistake 

or accident.

{¶ 22} For the remainder of the fourth and fifth days of trial, which took place on 

August 27 and 28, 2020, Hall proceeded with his defense case-in-chief by calling an 

additional five witnesses to the stand. These witnesses included A.Z.'s high school 

chemistry teacher, N.J., Hall's biological daughter, A.L., Hall's sister-in-law, C.H., and 

Hall's wife, B.H. Hall did not testify in his defense. As part of her testimony, Hall's wife, 
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B.H., testified that she never saw anything that would have been a "red flag" regarding 

how Hall treated A.Z. or E.A. when they were children. B.H. also testified that she did not 

see or hear anything that she felt was "unusual" with Hall. B.H. further testified that she 

did not see any "signs of any distress or anything" with A.Z. or E.A. B.H. additionally 

testified that she did not see anything that would have led her to believe Hall was sexually 

abusing any child, including A.Z. and E.A. B.H. also testified that for E.A. to say the things 

she is now claiming that E.A. has "got some deep-seeded mental health issues that she 

needs to probably get addressed." B.H. testified the same was true as it relates to A.Z. 

Following B.H.'s testimony, Hall rested his defense case-in-chief and moved to admit his 

exhibits, of which all but two were admitted into evidence by the trial court without 

objection.

{¶ 23} The trial then moved on to the presentation of the parties' closing 

arguments. During his closing argument, Hall maintained his original defense strategy 

that he introduced to the jury as part of his opening statement. That is, Hall argued that 

the allegations levied against him by both A.Z. and E.A. were false and that, while he did 

admit to having "sexual contact" with A.Z. and E.A. by inappropriately touching them both 

one time when they were children, he had never engaged in "sexual conduct" with either 

A.Z. or E.A. as was alleged in the indictment. This included the following as it relates to 

the manner in which the jury could consider A.Z.'s testimony as "other-acts" evidence 

under Evid.R. 404(B):

Now, got to talk to you a little about — this is what we call 

evidence Rule 404(B). It's in your instructions as alleged 

other acts. It's important that you pay strict attention to that 

rule and here's why.

It is a very, very limited instruction on what you're allowed to 

consider it for, and this relates to [A.Z.'s] allegations. You may 

only consider that evidence for a very limited, narrow purpose 

that relates to — not character, not character. You cannot use 
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that information to say, because [Hall's] admitted to two — two 

illegal acts that he's not charged for, that that means he 

committed rape. You cannot do that.

Hall also stated:

You're only allowed to use [A.Z.'s testimony] for that limited 

purpose of opportunity, plan, whether or not you think — and 

that requires you to get to the place of thinking that there's 

some truth, truth in what [A.Z.] says.

So you can't convert that belief that relates to [A.Z.] into a 

reason to find [E.A.'s] charges founded. In other words, to find 

[Hall] guilty because you've got to look at the independent 

evidence as it relates to [E.A.'s] claim.

The instructions lay that out for you, somewhat legalese. But 

when you look at it, I think that you will understand what that 

instruction means.

{¶ 24} Once the parties' closing arguments were complete, the trial court provided 

its final instructions to the jury. This included the following instruction regarding the way 

the jury could consider A.Z.'s testimony as "other-acts" evidence under Evid.R. 404(B).

Evidence was received about the commission of other acts, 

other than the offenses with which [Hall] is now charged in this 

trial. Specifically, I am referring to the allegations of [A.Z.]

That evidence was received only for a limited purpose. It was 

not received and you may not consider it to prove the 

character of [Hall] in order to show that he acted in conformity 

with that character in this case regarding the remaining counts 

involving [E.A.]

If you find that the evidence of other acts as alleged by [A.Z.] 

are true, and that [Hall] committed them, you may consider 

that evidence only for the purposes of deciding whether it 

proves [Hall's] motive, opportunity, intent or purpose, absence 

of mistake or accident, or preparation or plan to commit the 

offenses charged in this trial. That evidence cannot be 

considered for any other purpose.

{¶ 25} After the trial court completed its final jury instructions, the jury was then 

released for deliberations. Three hours and five minutes later, the jury returned to the 

courtroom with a verdict finding Hall guilty of sexually abusing E.A. as alleged in Counts 
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9, 10, 11, 12, 13, 14, and 15 of the indictment. Approximately two months later, on 

November 24, 2020, the trial court held a sentencing hearing. During that hearing, the 

trial court merged Counts 9, 10, and 11 together, Counts 12 and 13 together, and Counts 

14 and 15 together as allied offenses of similar import. Following the trial court's merger, 

the state elected to proceed with sentencing Hall on Counts 9, 12, and 14. The state's 

election effectively consolidated the seven offenses that Hall had been found guilty into 

the 1995 rape of E.A. at the house on Eyler Drive in Clearcreek Township, Warren County, 

Ohio, and the 1997 and 1998 rapes of E.A. at the house on Fairway Drive in Springboro, 

Warren County, Ohio. Following the state's election, the trial court then proceeded with 

its sentencing decision and sentenced Hall to a mandatory term of life in prison. The trial 

court also designated Hall a sexual predator and notified Hall that he would be subject to 

a mandatory five-year postrelease control term if he was ever released from prison. 

Hall's Direct Appeal and the Ohio Supreme Court's Decision Declining Review

{¶ 26} On December 14, 2020, Hall filed a direct appeal from his conviction to this 

court. To support his appeal, Hall raised six assignments of error for this court's 

consideration. Within his six assignments of error, Hall argued the trial court erred by 

denying his motion for a mistrial because A.Z. was allowed to testify as a "victim" of his 

alleged sexual abuse at trial, which "[e]ven the best curative instruction could not 

eliminate the inflammatory prejudice caused to [him]." Hall also argued the trial court 

erred by admitting A.Z.'s testimony as "other-acts" evidence pursuant to Evid.R. 404(B), 

as well as in the manner in which the trial court instructed the jury it could consider A.Z.'s 

testimony under Evid.R. 404(B). 

{¶ 27} However, upon review, this court disagreed with each of Hall's arguments 

raised in support of his six assignments of error and affirmed Hall's conviction in its 

entirety on April 4, 2022. State v. Hall, 12th Dist. Warren No. CA2020-12-087, 2022-Ohio-
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1147. In so holding, this court noted that "[n]obody," not the trial court, Hall, or the state, 

knew prior to A.Z. taking the stand on the first day of trial that it was only after September 

3, 1996 that the definition of "sexual conduct" set forth in R.C. 2907.01(A) included digital 

penetration. Id. at ¶ 202. This court also noted that, although not perfect, Hall 

nevertheless received a fair trial. Id. at ¶ 187. Shortly after this court issued its opinion, 

Hall appealed this court's decision to the Ohio Supreme Court. The Ohio Supreme Court, 

however, declined to accept Hall's appeal for review on August 17, 2022. State v. Hall, 

167 Ohio St.3d 1490, 2022-Ohio-2788.

Hall's Petition for Postconviction Relief and the Trial Court's Dismissal

{¶ 28} On April 15, 2022, less than two weeks after this court issued our opinion 

affirming Hall's conviction on direct appeal, Hall filed a pro se petition for postconviction 

relief. Although not explicit, Hall filed his petition pursuant to R.C. 2953.21(A)(1)(a)(i). 

Pursuant to that statute, any person who has been convicted of a criminal offense, and 

who claims that there was such a denial or infringement of the person's rights as to render 

the judgment "void or voidable" under the Ohio Constitution or the United States 

Constitution, "may file a petition in the court that imposed sentence, stating the grounds 

for relief relied upon, and asking the court to vacate or set aside the judgment or sentence 

or to grant other appropriate relief[.]" To support his postconviction relief petition, Hall 

presented seven grounds for relief, all seven of which were based upon his trial counsel's 

alleged ineffective assistance of counsel in violation of the Sixth Amendment to the United 

States Constitution and Section 10, Article I of the Ohio Constitution. 

{¶ 29} However, given Hall's arguments advanced in his appellate brief, only three 

of those grounds are relevant to this appeal. The first of those three stated grounds 

provided, in pertinent part, the following: (1) ineffective assistance of counsel for failing to 

"prepare an effective defense prior to trial," to "present an effective defense including trial 
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strategy," to "protect and preserve" Hall's "legal rights for future appeals," and to "raise 

an objection" and "motion" prior to trial challenging the state's ability to move forward on 

Counts 1, 2, 3, 4, and 7 of the indictment as it related to his alleged sexual abuse of his 

adopted daughter, A.Z., all of which was to have occurred prior to the September 3, 1996 

definition of "sexual conduct" set forth in R.C. 2907.01(A) came into effect, where none 

of the pretrial information supported those counts and Hall's trial counsel "missed it."

2

{¶ 30} Whereas the second and third stated grounds provided (2) ineffective 

assistance of counsel for failing to "adapt a strategy" upon learning the charges related 

to Hall's alleged sexual abuse of A.Z. would likely be dismissed at the end of the state's 

case-in-chief, as well as for failing to object to the trial court's instructions it provided to 

the jury as it relates to the manner in which the jury could consider A.Z.'s testimony as 

"other-acts" evidence pursuant to Evid.R. 404(B); and (3) ineffective assistance of 

counsel for failing to adapt a varying trial strategy despite a "fundamentally changed set 

of circumstances" after learning the charges related to Hall's alleged sexual abuse of A.Z. 

would likely be dismissed at the end of the state's case-in-chief, and for providing the jury 

with "incomprehensible instructions" during closing argument regarding how it could 

consider A.Z.'s testimony as "other-acts" evidence pursuant to Evid.R. 404(B), which 

"grievously undermined" Hall's right to fair trial and "adversely influenced the jury."

{¶ 31} To support those three stated grounds for relief, Hall attached to his 

postconviction relief petition this court's decision affirming his conviction on direct appeal, 

as well as affidavits from Hall and his wife, B.H., wherein they both averred that, while 

driving home following the first day of trial, one of Hall's attorneys stated to them over the 

2. We note that, for reasons unknown, Hall's first ground for relief addresses only Counts 1, 2, 3, 4, and 7 

of the indictment without making any reference to the other two counts related to his alleged sexual abuse 

of A.Z. set forth in Count 5 and Count 8 of the indictment.
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phone, "Wow! I wish we would have found that," in reference to the lack of digital 

penetration in the pre-September 3, 1996 definition of "sexual conduct" set forth in R.C. 

2907.01(A). 

{¶ 32} On May 26, 2022, the state filed a motion to dismiss Hall's petition for 

postconviction relief, or, in the alternative, motion for summary judgment. Just over three 

months later, on August 30, 2022, the trial court issued a decision and entry summarily 

dismissing Hall's postconviction relief petition without a hearing. In so holding, the trial 

court initially determined that Hall's "assertions of ineffective assistance of counsel are 

barred by the doctrine of res judicata." The trial court also noted that, even if Hall's 

ineffective assistance of counsel claims were not barred by the doctrine of res judicata, 

"this Court would still find [Hall's] ineffective assistance of counsel argument fails, as [Hall] 

cannot show that trial counsel's representation fell below an objective standard of 

reasonableness, and that there is a reasonable probability that, but for the defective 

representation, the outcome of the proceeding would have been different." This is in 

addition to the trial court finding "the affidavits relied upon by [Hall] in his postconviction 

petition lack credibility" and must be "weighed cautiously" given that both Hall and his 

wife, B.H., "have a clear interest in [Hall's] success in this petition." The trial court 

thereafter concluded by finding Hall's petition for postconviction relief must be summarily 

dismissed without a hearing because "the petition is barred by the doctrine of res judicata 

and the petition, supporting affidavits, documentary evidence, files, and record do not set 

forth sufficient operative facts to establish substantive grounds for the relief requested."

Hall's Appeal and Single Assignment of Error for Review

{¶ 33} On September 30, 2022, Hall filed a notice of appeal from the trial court's 

decision summarily denying his petition for postconviction relief without a hearing. 

Following some delay, this court accepted Hall's appeal as timely and issued a scheduling 
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order directing when the record and the briefs of the parties were to be filed. Pursuant to 

that scheduling order, the parties filed their respective briefs with this court on October 9, 

November 30, and December 21, 2023. Oral argument was thereafter held before this 

court on February 20, 2024. Hall's appeal now properly before this court for decision, 

Hall has raised one assignment of error for review. In that single assignment of error, Hall 

argues the trial court erred by summarily denying his postconviction relief petition without 

a hearing. We disagree.

Petition for Postconviction Relief Standard of Review

{¶ 34} "In Ohio, persons convicted of criminal offenses may petition a trial court for 

postconviction relief if they fit into one of four categories." State v. Miller, Slip Opinion No. 

2023-Ohio-3448, ¶ 19 (Kennedy, C.J., concurring in the judgment). Those four categories 

are set forth in R.C. 2953.21(A)(1)(a)(i) through (iv). Relevant here is the first category, 

which "permits a person convicted of a criminal offense to petition the trial court to vacate 

his conviction when he believes 'there was such a denial or infringement of [his] rights as 

to render the judgment void or voidable under the Ohio Constitution or the Constitution of 

the United States.'" State v. Johnson, Slip Opinion No. 2024-Ohio-134, ¶ 1, quoting R.C. 

2953.21(A)(1)(a)(i). When a criminal defendant challenges his conviction through a 

postconviction relief petition, like Hall does in this case, the trial court may hold an 

evidentiary hearing on the issues raised by the petition. State v. Harding, 12th Dist. 

Madison No. CA2019-05-012, 2020-Ohio-1067, ¶ 4, citing R.C. 2953.21(D) thru (F). 

However, "[a]n evidentiary hearing is not automatically guaranteed each time a defendant 

makes a petition for postconviction relief." State v. Vore, 12th Dist. Warren Nos. CA2012-

06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 11. Rather, "[t]he trial court, before 

granting a hearing on a petition filed under R.C. 2953.21(A)(1)(a)(i), is required to 

'determine whether there are substantive grounds for relief.'" Miller, quoting R.C. 
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2953.21(D). 

{¶ 35} "A petition presents substantive grounds for relief when it contains 

allegations that are sufficient to state a constitutional claim and the files and records of 

the case do not affirmatively disprove the claim." State v. Blanton, 171 Ohio St.3d 19, 

2022-Ohio-3985, ¶ 24, citing State v. Milanovich, 42 Ohio St.2d 46, 50 (1975); and R.C. 

2953.21(F). "In determining whether the petition states a substantive ground for relief, 

the trial court must consider the entirety of the record from the trial proceedings as well 

as any evidence filed by the parties in postconviction proceedings." State v. Bunch, 171 

Ohio St.3d 775, 2022-Ohio-4723, ¶ 24, citing R.C. 2953.21(D). "If the record on its face 

demonstrates that the petitioner is not entitled to relief, then the trial court must dismiss 

the petition." Id., citing R.C. 2953.21(D) and (E). That is to say, "'[a] trial court properly 

denies a defendant's petition for postconviction relief without holding an evidentiary 

hearing where the petition, the supporting affidavits, the documentary evidence, the files, 

and the records do not demonstrate that petitioner set forth sufficient operative facts to 

establish substantive grounds for relief.'" State v. Barron, 12th Dist. Warren No. CA2022-

09-059, 2023-Ohio-1249, ¶ 10, quoting State v. Calhoun, 86 Ohio St.3d 279 (1999), 

paragraph two of the syllabus. However, "[i]f the record does not on its face disprove the 

petitioner's claim, then the court is required to 'proceed to a prompt hearing on the 

issues.'" Bunch, quoting R.C. 2953.21(F); see also State v. Hatton, 169 Ohio St.3d 446, 

2022-Ohio-3991, ¶ 28 ("[t]he defendant is entitled to an evidentiary hearing when the 

allegations in the motion demonstrate substantive grounds for relief"). 

{¶ 36} "A trial court's decision to summarily deny a postconviction petition without 

holding an evidentiary hearing will not be reversed absent an abuse of discretion." State 

v. Harding, 12th Dist. Madison No. CA2019-05-012, 2020-Ohio-1067, ¶ 6. "The standard 

is deferential, requiring the trial court to engage in more than mere error in law or 
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judgment." State v. Jones, 12th Dist. Butler No. CA2022-04-036, 2022-Ohio-3864, ¶ 9. 

This court must instead "find that the trial court's ruling was unreasonable, arbitrary, or 

unconscionable." State v. Payton, 12th Dist. Fayette No. CA2022-01-001, 2022-Ohio2829, ¶ 7. "A decision is unreasonable where a sound reasoning process does not 

support it." State v. Miller, 12th Dist. Butler No. CA2016-01-007, 2016-Ohio-7360, ¶ 7. 

"[A]n 'arbitrary' decision is one made 'without consideration of or regard for facts [or] 

circumstances.'" State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, ¶ 12, quoting 

Black's Law Dictionary 125 (10th Ed.2014). "An unconscionable decision may be defined 

as one that affronts the sense of justice, decency, or reasonableness." State v. Wane, 

12th Dist. Butler Nos. CA2020-01-010, CA2020-01-011, CA2020-01-014, and CA2020-

01-015, 2020-Ohio-4874, ¶ 22. Therefore, for this court to find an abuse of discretion, 

"the trial court's judgment must be so profoundly and wholly violative of fact and reason 

that 'it evidences not the exercise of will but perversity of will, not the exercise of judgment 

but defiance thereof, not the exercise of reason but rather of passion or bias.'" State v. 

Weaver, 171 Ohio St.3d 429, 2022-Ohio-4371, ¶ 24, quoting State v. Jenkins, 15 Ohio 

St.3d 164, 222 (1984). 

The Application of the Doctrine of Res Judicata

{¶ 37} To support his single assignment of error, Hall initially argues the trial court 

erred by misapplying the doctrine of res judicata when summarily dismissing his petition 

for postconviction relief without a hearing. We disagree.

{¶ 38} "It is well established that a trial court may dismiss a postconviction relief 

petition on the basis of the doctrine of res judicata." State v. Davis, 12th Dist. Butler No. 

CA2012-12-258, 2013-Ohio-3878, ¶ 30. "The doctrine of res judicata precludes a 

convicted defendant 'from raising and litigating in any proceeding, except an appeal from 

that judgment, any defense or any claimed lack of due process that was raised or could 
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have been raised' at trial or on direct appeal." Hatton, 2022-Ohio-3991 at ¶ 22, quoting 

State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. "So a court reviewing a 

postconviction-relief petition generally may not decide a claim that could have been 

presented at trial and raised on direct appeal." Blanton, 2022-Ohio-3985 at ¶ 2, citing 

State v. Perry, 10 Ohio St.2d 175, 180 (1967). There is a twist, however, when it comes 

to petitions for postconviction relief that are based on the alleged ineffective assistance 

of counsel. Id. As noted by the Ohio Supreme Court, "res judicata does not bar a 

postconviction ineffective-assistance-of-counsel claim when either (1) the petitioner had 

the same attorney at trial and on appeal or (2) he must rely on evidence outside the trial 

record to establish his claim for relief." Id., citing State v. Cole, 2 Ohio St.3d 112, 113-114 

(1982). That is to say:

if the petitioner's appellate counsel is different from his trial 

counsel and the matter could have been subject to appeal on 

the record, res judicata will bar that postconviction claim for 

relief. A different outcome results if the petitioner had the 

same attorney at trial and on appeal or he must rely on 

evidence outside the trial record to establish his claim for 

relief. * * * In that circumstance, res judicata does not serve to 

bar a claim of ineffective assistance of counsel in a 

postconviction petition.

(Internal citation deleted.) State v. Grate, 5th Dist. Ashland No. 22-COA-029, 2023-Ohio2103, ¶ 30. Therefore, while it is generally true that res judicata will bar a claim that could 

have been presented at trial and raised on direct appeal, res judicata does not, in and of 

itself, "bar all ineffective-assistance claims that were previously raised in a direct appeal." 

Blanton at ¶ 38. 

{¶ 39} Rather, a petitioner who presents a postconviction ineffective assistance of 

counsel claim, and who demonstrates through evidence outside the trial record that their 

ineffective assistance of counsel claim either was not, or could not have been, fairly 

adjudicated in the petitioner's direct appeal, the petitioner is provided "a second
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opportunity to litigate the claim." (Emphasis sic.). Blanton, 2022-Ohio-3985 at ¶ 38. This 

necessarily means that "claims that rely on evidence outside the record may be heard on 

postconviction review even if similar claims have been previously raised and adjudicated 

against the petitioner in his direct appeal." Id. at ¶ 41. This would include, for example, 

a petitioner's ineffective assistance of counsel claim "regarding counsel's failure to 

present evidence." Id. It would not include, however, a petitioner's ineffective assistance 

of counsel claim "based on counsel's failure to object to obviously prejudicial evidence"

as that claim could have fairly been "resolved on appeal based on evidence entirely within 

the trial record." Id. Therefore, "when the petitioner had a new attorney on appeal and 

the claim could have been litigated based on the trial record, res judicata applies and the 

postconviction claim is barred." Id. at ¶ 2. Conversely, where a petitioner has brought 

forth evidence outside the record of ineffective assistance of counsel, that showing is 

generally sufficient, "'if not to mandate a hearing, at least to avoid dismissal on the basis 

of res judicata.'" Id. at ¶ 31, quoting Cole at 114.

{¶ 40} In this case, Hall, whose trial counsel and counsel on direct appeal were not 

the same, brought forth evidence outside the trial record in support of his ineffective 

assistance of counsel claim. That evidence included, most notably, Hall's and his wife 

B.H.'s affidavits, wherein they both averred that, while driving home following the first day 

of trial, one of Hall's attorneys stated to them over the phone, "Wow! I wish we would 

have found that," in reference to lack of digital penetration in the pre-September 3, 1996 

definition of "sexual conduct" set forth in R.C. 2907.01(A). However, although presenting 

evidence that was undoubtably outside the trial record, Hall has not demonstrated that 

without the benefit of such evidence his ineffective assistance of counsel claim either was 

not, or could not have been, fairly adjudicated as part of his direct appeal to this court. 

That is to say, while potentially helpful to Hall had that evidence been a part of the trial 
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record, Hall's claim that his trial counsel was ineffective for failing to discover the preSeptember 3, 1996 definition of "sexual conduct" set forth in R.C. 2907.01(A) did not 

include digital penetration was in no way reliant upon any evidence outside of the trial 

record. This includes either Hall's or Hall's wife B.H.'s affidavits. 

{¶ 41} Rather, based on the record properly before this court, we find it clear that 

Hall could have instead, had he so chosen, raised that ineffective assistance of counsel 

claim as part of an appropriately worded assignment of error. Hall did not raise that issue 

as part of his direct appeal and the doctrine of res judicata bars Hall from doing so now 

as part of his petition for postconviction relief. See, e.g., State v. Brodie, 9th Dist. Medina 

No. 23CA0005-M, 2023-Ohio-3744, ¶ 13 (affirming trial court's decision dismissing 

appellant's petition for postconviction relief on the basis that his ineffective assistance of 

counsel claims were barred under the doctrine of res judicata given that each of the issues 

appellant raised in support of his ineffective assistance of counsel claim could have been 

raised either at trial or on direct appeal). 

{¶ 42} "The petitioner can avoid the bar of res judicata by submitting evidence 

outside the record on appeal that demonstrates that the petitioner could not have raised 

the claim based on information in the original record." State v. Froman, 12th Dist. Warren 

No. CA2020-12-080, 2022-Ohio-2726, ¶ 24. However, "[f]inding an item outside the 

record to attach to a petition does not turn an issue into a substantive post-conviction 

claim where it is essentially cumulative to evidence that was in the record on a topic that 

could have been raised on direct appeal." State v. Boyd, 7th Dist. Mahoning No. 23 MA 

0012, 2023-Ohio-4725, ¶ 41. Moreover, "[i]f the evidence outside the record is 'marginally 

significant and does not advance the petitioner's claim beyond a mere hypothesis and a 

desire for further discovery,' res judicata still applies to [bar] the claim." State v. Barron, 

12th Dist. Warren No. CA2022-09-059, 2023-Ohio-1249, ¶ 14, quoting State v. Cowans, 
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12th Dist. Clermont No. CA98-10-090, 1999 Ohio App. LEXIS 4157, *8-*9 (Sept. 7, 1999). 

Such is the case here. Therefore, contrary to Hall's claim otherwise, the trial court did not 

err in its application of the doctrine of res judicata when summarily dismissing Hall's

petition for postconviction relief without a hearing. To the extent Hall claims otherwise, 

such argument lacks merit.

Hall's Evidence Does Not Present Substantive Grounds for Relief

{¶ 43} Regardless, even if we were to find the doctrine of res judicata did not apply 

to bar Hall's ineffective assistance of counsel claim, it is important to note that "merely 

providing evidence outside the record is not sufficient to entitle a petitioner to a hearing." 

State v. Johnson, 12th Dist. Warren No. CA2022-09-063, 2023-Ohio-879, ¶ 21. That is 

to say, "simply overcoming the res judicata bar through the introduction of evidence 

outside the record is not sufficient," in and of itself, to necessitate the trial court holding a 

hearing on the matter. Blanton, 2022-Ohio-3985 at ¶ 31. 

{¶ 44} Rather, to be entitled to a hearing, "a petitioner 'must proffer evidence which, 

if believed, would establish not only that his trial counsel had substantially violated at least 

one of a defense attorney's essential duties to his client but also that said violation was 

prejudicial to the [petitioner].'" (Brackets sic.) Id., quoting Cole, 2 Ohio St.3d at 114. 

Therefore, in cases where the petitioner has brought forth evidence outside the record of 

ineffective assistance of counsel, which we will assume Hall did for purpose of this court's 

alternative analysis, a two-part inquiry applies to determine whether the petitioner is 

entitled to a hearing. Barron, 2023-Ohio-1249 at ¶ 17. That two-part inquiry provides (1) 

"Has the petitioner introduced competent evidence of ineffective assistance that was not 

included in the trial record?" and (2) "if so, does that evidence present substantive 

grounds for relief; that is, if believed, would the newly presented evidence—together with 

any evidence in the trial record—establish that counsel was ineffective?" Blanton at ¶ 33.
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{¶ 45} When applying this two-part inquiry to the case at bar, we must examine

Hall's postconviction ineffective assistance of counsel claim as it relates to the trial court's 

decision to summarily dismiss his petition without a hearing "rather than as it affects a 

decision on the merits of an appeal or on the merits of the postconviction petition." Bunch, 

2022-Ohio-4723 at ¶ 27. Thus, Hall's petition for postconviction relief "need not 

definitively establish counsel's deficiency" or whether it prejudiced Hall. Id.; State v. 

Belton, 6th Dist. Lucas No. L-20-1121, 2023-Ohio-294, ¶ 73 ("when the issue is whether 

to grant a hearing on a postconviction petition, rather than as to the merits of the 

postconviction petition,* * * the postconviction petition does not need to definitively 

establish that trial counsel was deficient, or that appellant was prejudiced"). Instead, to 

be entitled to a hearing, Hall's petition "must be sufficient on its face to raise an issue 

whether [he] was deprived of the effective assistance of counsel, and [his] claim depends 

on factual allegations that cannot be determined by examining the record from his trial." 

Id., citing Milanovich, 42 Ohio St.2d at paragraph one of the syllabus; and Cole, 2 Ohio 

St.3d at 114. "If the record on its face demonstrates that the petitioner is not entitled to 

relief, then the trial court must dismiss the petition." Barron, 2023-Ohio-1249 at ¶ 11, 

citing R.C. 2953.21(D) and (E)."

{¶ 46} To support his ineffective assistance of counsel claim, Hall relied upon his 

and his wife B.H.'s affidavits, wherein they both averred that, while driving home following 

the first day of trial, one of Hall's attorneys stated to them over the phone, "Wow! I wish 

we would have found that," in reference to lack of digital penetration in the pre-September 

3, 1996 definition of "sexual conduct" set forth in R.C. 2907.01(A). However, after a 

thorough review of the record, the allegations set forth within Hall's and B.H.'s affidavits, 

together with the evidence contained within the trial court record, do not present 

substantive grounds that would entitle Hall to relief. 
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{¶ 47} Rather, Hall's allegations set forth within his and his wife B.H.'s affidavits, 

together with the evidence contained within the record, merely establish what we already 

knew, and one of the issues that this court specifically addressed as part of Hall's direct 

appeal. That being, the complete lack of awareness on the part of Hall's trial counsel, the 

state, and even the trial court, that the charges related Hall's alleged sexual abuse to A.Z.

set forth in Counts 1, 2, 3, 4, 5, 7, and 8 would need to be dismissed at the time when 

A.Z. took the stand and testified in the manner that she did. It was only after A.Z.'s 

testimony was complete that the trial court was able to conclusively determine that those 

charges were, as a matter of law, not supported by sufficient evidence given the definition 

of "sexual conduct" applicable to those charges did not include digital penetration. 

Therefore, even when considering the entirety of the record from the trial court 

proceedings, in conjunction with the affidavits from Hall and his wife, B.H., Hall did not 

present any substantive grounds that would entitle him to relief.

{¶ 48} Regardless, even if we were to find Hall had presented an argument that 

could be considered a substantive ground for relief that would ordinarily necessitate the 

trial court holding a hearing on the matter, Hall has failed to establish that his trial counsel 

provided him with ineffective assistance based on the allegations set forth within his and 

his wife B.H.'s affidavits.

{¶ 49} "The standard by which we review claims of ineffective assistance of 

counsel is well established." State v. Carter, 72 Ohio St.3d 545, 557 (1995). To establish 

ineffective assistance, a defendant must show (1) that counsel's performance was 

deficient, and (2) that counsel's deficient performance prejudiced the defendant. 

Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984). Courts 

determine deficient performance by asking whether counsel's conduct "fell below an 

objective standard of reasonableness." Id. at 688. When making this determination, the 
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reasonableness of counsel's conduct must be judged based on "the facts of the particular 

case, viewed as of the time of counsel's conduct." Id. at 690. Only when counsel's errors 

were "so serious that counsel was not functioning as the 'counsel' guaranteed the 

defendant by the Sixth Amendment" has counsel engaged in deficient performance. Id. 

at 687. To establish prejudice, "[t]he defendant must show that there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the proceeding would 

have been different." Id. at 694. This requires the errors to be so significant as to 

"undermine confidence in the outcome." Id. "A defendant's failure to make a sufficient 

showing of either prong of the Strickland inquiry is fatal to his claim of ineffective 

assistance." State v. Lloyd, 171 Ohio St.3d 353, 2022-Ohio-4259, ¶ 31, citing id. at 697.

{¶ 50} Here, although couched in slightly different terms, Hall is essentially arguing 

that his trial counsel's failure to discover before trial that the pre-September 3, 1996,

definition of "sexual conduct" set forth in R.C. 2907.01(A) did not include digital 

penetration constituted deficient performance that fell below an objective standard of 

reasonableness. To support this claim, Hall argues the underlying reason the jury found 

him guilty of sexually abusing E.A. was due to the improper introduction of A.Z.'s

testimony into evidence. This is because, according to Hall, the introduction of A.Z.'s 

testimony into evidence "changed the dynamic of the trial" and left the jury "under the 

impression" that her testimony also "went to the allegations of rape against Hall." But, 

even if we were to agree with Hall as it relates to his trial counsel's performance, deficient 

or not, Hall cannot demonstrate that he suffered any resulting prejudice by his trial 

counsel's failure to discover that it was the original 1974 definition of "sexual conduct" 

that applied to Hall's alleged sexual abuse of A.Z. rather than the revised September 3, 

1996 definition set forth in R.C. 2907.01(A). 

{¶ 51} In this case, and what Hall seems to be forgetting, is that this court has 
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already affirmed the trial court's decision to admit A.Z.'s testimony as "other-acts"

evidence under Evid.R. 404(B) as part of his direct appeal. Hall, 2022-Ohio-1147 at ¶ 

188-198. In so holding, this court initially rejected Hall's argument that it was error for the 

trial court to admit A.Z.'s testimony as "other-acts" evidence under Evid.R. 404(B) 

because the state did not offer A.Z.'s testimony to prove any one of the permitted 

purposes set forth within that rule, i.e., motive, opportunity, intent, preparation, plan, 

knowledge, identity, or the absence of mistake or accident. Id. at ¶ 194. In reaching this 

decision, this court stated:

[A]lthough it is beyond dispute that the state was not offering 

A.Z.'s testimony as other-acts evidence when A.Z. initially 

took the stand, A.Z.'s trial testimony was undoubtably relevant 

and could have been introduced by the state at trial for at least 

two, if not more, of the permitted purposes set forth in Evid.R. 

404(B) had the charges related to Hall's alleged sexual abuse 

of A.Z. never been brought. This includes, but is not 

necessarily limited to, [showing] Hall's intent and the absence 

of mistake or accident. "Other-acts evidence is admissible to 

negate a defendant's claim of mistake or accident with respect 

to the commission of the alleged crime; such evidence tends 

'[t]o show, by similar acts or incidents, that the act in question 

was not performed inadvertently, accidentally, involuntarily, or 

without guilty knowledge.'" [State v. Hartman, 161 Ohio St.3d 

214, 2020-Ohio-4440, ¶ 52], quoting McCormick, Evidence, 

Section 190, 804 (4th Ed. 1994).

This is necessarily the case [here] given Hall's repeated 

denials to both A.Z. and E.A. that he had done anything more 

than what he admitted to within State's Exhibit 1, i.e., his 

"confession" and "love letter to his daughters" that he provided 

to police during the search of his home, wherein Hall 

acknowledged that he had touched both A.Z. and E.A. 

inappropriately when they were children. This is also the case 

given the statement Hall made during one of the telephone 

calls he had with A.Z. on April 18, 2019 claiming he did not 

remember doing any of the things that A.Z. and E.A. were 

alleging, but that if he "was ever wasted and accidentally did 

something that is one thing." This is in addition to Hall's 

statements during that same April 18, 2019 telephone call, as 

well as Hall's May 1, 2019 telephone call with E.A., wherein 

Hall claimed that maybe he did not remember anything that 

A.Z. and E.A. were alleging because he had been 
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sleepwalking or because he might be a paranoid 

schizophrenic with split personalities.

Hall, therefore, did not merely deny A.Z.'s and E.A.'s 

allegations ever occurred. Hall also defended against A.Z.'s 

and E.A.'s allegations by claiming if something had happened 

that it was accidental, inadvertent, or unintended because he 

was "wasted," sleepwalking, or possibly suffering from split 

personalities. Accordingly, because Hall placed his intent at 

issue by claiming his actions were accidental, innocent, or 

without his knowledge, A.Z.'s testimony was properly 

admissible as other-acts evidence under Evid.R. 404(B) to 

show, at the very least, intent and the absence of mistake or 

accident. See, e.g., [State v. Fannin, 12th Dist. Warren No. 

CA2020-03-022, 2021-Ohio-2462, ¶ 4, 28-31] (finding "otheracts evidence related to [one child victim] was properly 

admissible to show intent and absence of mistake" at trial 

where appellant was being tried for raping another child victim 

and defending against the charge by claiming the rape never 

happened, but "if it was happening in the middle of the night, 

he was not aware of it"). Hall's claim otherwise lacks merit.

Id., 2022-Ohio-1147 at ¶ 194-196.

{¶ 52} This court also rejected Hall's argument that it was error for the trial court to 

admit A.Z.'s testimony as "other-acts" evidence under Evid.R. 404(B) because, "without 

limiting the scope" of A.Z.'s testimony prior to her taking the stand, A.Z.'s testimony was 

highly prejudicial, thereby requiring its exclusion under Evid.R. 403(A). Id. at ¶ 197. In 

so holding, this court stated:

Without question, A.Z.'s testimony was prejudicial. All 

evidence presented by the prosecutor is prejudicial. State v. 

Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 107. But not 

all evidence unfairly prejudices a defendant. State v. White, 

12th Dist. Warren No. CA2018-09-107, 2019-Ohio-4312, ¶ 31. 

"Under Evid.R. 403(A), only evidence that is unfairly

prejudicial is excludable." (Emphasis sic.) State v. Smith, 

12th Dist. Butler No. CA2008-03-064, 2009-Ohio-5517, ¶ 60. 

"Unfairly prejudicial evidence is not merely unfavorable 

evidence; rather, it is evidence, which might result in an 

improper bias for a jury decision." State v. Mills, 12th Dist. 

Clermont No. CA2015-12-101, 2016-Ohio-6985, ¶ 18, citing 

State v. Bowman, 144 Ohio App.3d 179, 186 (12th Dist.2001).

"Weighing the probative value of the evidence against its 
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prejudicial effect is a highly fact-specific and context-driven 

analysis." Hartman, 2020-Ohio-4440 at ¶ 30. Therefore, 

despite Hall's claims, when considering the trial court found it 

proper to admit A.Z.'s testimony as other-acts evidence, the 

trial court clearly determined that the probative value of A.Z.'s 

testimony did not substantially outweigh the danger of unfair 

prejudice to Hall, thereby requiring its exclusion under Evid.R. 

403(A). See Evid.R. 403(A) ("[a]lthough relevant, evidence is 

not admissible if its probative value is substantially 

outweighed by the danger of unfair prejudice, of confusion of 

the issues, or of misleading the jury"). The trial court did not 

abuse its discretion in reaching this decision. That is to say, 

the trial court's decision finding the probative value of A.Z.'s 

testimony did not substantially outweigh the danger of unfair 

prejudice to Hall was not unreasonable, arbitrary, or 

unconscionable. Hall's claim otherwise again lacks merit. 

Accordingly, for the reasons outlined above, Hall's second 

assignment of error lacks merit and is overruled.

Hall, 2022-Ohio-1147 at ¶ 197-198.

{¶ 53} This court also affirmed the trial court's instructions it provided to the jury 

regarding the manner in which it could consider A.Z.'s testimony as "other-acts" evidence 

under Evid.R. 404(B) when determining whether Hall had sexually abused E.A. In so 

holding, this court initially rejected Hall's argument that the trial court erred by failing to 

give the jury a limiting instruction prior to A.Z. taking the stand and testifying to the "otheracts" evidence discussed more fully above. In reaching this decision, this court stated:

[A]s the record indicates, the trial court was unaware that the 

charges related Hall's alleged sexual abuse to A.Z., Counts 1, 

2, 3, 4, 5, 7, and 8, would need to be dismissed at the time 

when A.Z. took the stand and testified in the manner that she 

did. Nobody did. It was only after A.Z.'s testimony was 

complete that the trial court was able to conclusively 

determine that those charges were, as a matter of law, not 

supported by sufficient evidence given the definition of "sexual 

conduct" applicable to those charges did not include digital 

penetration. Therefore, because it was only after A.Z. testified 

that anybody — including Hall — knew the charges related to 

A.Z. would need to be dismissed, the trial court had no way of 

knowing it would need provide the jury with a limiting 

instruction regarding A.Z.'s testimony before A.Z. ever took 

the stand. Accordingly, Hall's claim alleging the trial court 

erred by failing to give the jury a limiting instruction regarding 
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other-acts evidence prior to A.Z. taking the stand lacks merit.

Hall, 2022-Ohio-1147 at ¶ 202.

{¶ 54} This court also rejected Hall's argument that the instructions the trial court 

provided to the jury regarding the A.Z.'s testimony was overbroad, confusing, and 

prejudicial. This included Hall's challenge to the trial court's instruction it provided to the 

jury after the state formally rested its case-in-chief, which provided:

The Court has withdrawn from your consideration Counts 1, 

2, 3, 4, 5, 7 and 8. You are not to speculate as to why the 

Court has withdrawn them. Evidence relating to those counts 

was received about the commission of other acts, other than 

the remaining offenses with which the Defendant is charged 

in this trial, specifically the allegations made by [A.Z.], that 

evidence was allowed for a limited purpose. It was not 

received and you may not consider it to prove the character 

of the Defendant in order to show that he acted in conformity 

with that character in this case with the remaining charges. 

If you find at the close of the case that the evidence of the 

other acts is true and that the Defendant committed them, you 

may consider that evidence only for the purpose of deciding 

whether it tends to prove the Defendant's motive, opportunity, 

intent, preparation, plan, knowledge, identity or absence of 

mistake or accident.

Id., at ¶ 203.

{¶ 55} This court further rejected Hall's challenge to the instruction the trial court 

provided to the jury regarding A.Z.'s testimony as part of its final jury instructions, which, 

like the trial court's earlier instruction set forth above, provided:

Evidence was received about the commission of other acts, 

other than the offense with which the Defendant is not 

charged in this trial. Specifically, I am referring to the 

allegations of [A.Z.] 

That evidence was received only for a limited purpose. It was 

not received and you may not consider it to prove the 

character of the Defendant in order to show that he acted in 

conformity with that character in this case regarding the 

remaining counts involving [E.A.]
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If you find that the evidence of other acts as alleged by [A.Z.] 

as true, and that the Defendant committed them, you may 

consider that evidence only for the purposes of deciding 

whether it proves the Defendant's motive, opportunity, intent 

or purpose, absence of mistake or accident, or preparation or 

plan to commit the offenses charged in this trial. That 

evidence cannot be considered for any other purpose.

Hall, 2022-Ohio-1147 at ¶ 204.

{¶ 56} Additionally, citing the Ohio Supreme Court's decision in Hartman, 2020-

Ohio-4440, we rejected Hall's argument that the instructions the trial court provided to the 

jury regarding A.Z.'s testimony were clearly prejudicial to him. In rejecting Hall's 

argument, this court determined that, unfortunately, the trial court's instructions regarding 

A.Z.'s testimony were not tailored to the facts of the case as required by Hartman at ¶ 70

("when a court issues a limiting instruction with respect to other-acts evidence, the 

instruction should be tailored to the facts of the case"). However, when taken in context, 

this court determined that portion of the Ohio Supreme Court's decision in Hartman was 

undoubtedly dicta and clearly intended to apply prospectively to jury trials coming after 

that case was released. In so holding, this court noted:

The Ohio Supreme Court specifically states as much in the 

next sentence noting that, "[g]oing forward, courts should 

explain, in plain language, the purposes for which the other 

acts may and may not be considered." (Emphasis added.) Id. 

at ¶ 70. Therefore, because the Ohio Supreme Court's 

decision in Hartman was released on September 22, 2020, 

which was nearly a full month after Hall's jury trial concluded, 

the Ohio Supreme Court's commentary in Hartman that, going 

forward, trial courts should use plain language to explain the 

purpose(s) that other-acts evidence may and may not be 

considered, could not have been applied by the trial court to 

the case at bar. The trial court applied the law as it existed at 

the time, which is all that the trial court could be expected to 

do.

Hall, 2022-Ohio-1147 at ¶ 206

{¶ 57} In reaching this decision, this court further noted that, although Hall did 
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initially state that it was his belief that the trial court's final instruction to the jury "needs to 

be tailored to what the State intends to offer that for," Hall did not object to the trial court's 

instruction on that basis. Hall instead stated, "that works" regarding the instruction the 

trial court provided to the jury after the state formally rested its case-in-chief, and "[n]o 

objection, Your Honor," when asked if he had any objection to the trial court's instruction 

it provided to the jury as part of its final jury instructions. Id. at ¶ 207. Therefore, this 

court determined that, just like the appellant in Hartman, because Hall did not object to 

the trial court's challenged instructions, no plain error occurred in this case. Id., citing 

Hartman, 2020-Ohio-4440 at ¶ 72.

{¶ 58} Based on the foregoing, even if this court were to find Hall's trial counsel's 

performance was deficient, because this court has already determined that the trial court 

did not err by admitting A.Z.'s testimony as "other-acts" evidence under Evid.R. 4040(B), 

Hall cannot establish that he was in any way prejudiced by his trial counsel's failure to 

discover before trial that digital penetration was not included in the pre-September 3, 1996 

definition of "sexual conduct" set forth in R.C. 2907.01(A). This is because, even had 

Hall's trial counsel made that discovery, the jury would still have heard A.Z.'s testimony 

and been permitted to consider it for at least two, if not more, of the permitted purposes 

set forth in Evid.R. 404(B) when determining whether Hall had sexually abused E.A. had 

the charges related to Hall's alleged sexual abuse of A.Z. never been brought. As noted 

above, this includes, but is not necessarily limited to, showing Hall's intent and the 

absence of mistake or accident with respect to Hall's sexual abuse of E.A.

Conclusion

{¶ 59} Therefore, because Hall cannot demonstrate that he suffered any resulting 

prejudice, the record on its face demonstrates that Hall is not entitled to relief, thereby

mandating the trial court to dismiss Hall's petition for postconviction relief without a 
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hearing. See Bunch, 2022-Ohio-4723 at ¶ 24, citing R.C. 2953.21(D) and (E). 

Accordingly, whether it be based upon the doctrine of res judicata, or on this alternative 

ground, because the trial court did not err by summarily dismissing Hall's petition for 

postconviction relief without a hearing, Hall's single assignment of error lacks merit and 

is overruled.

{¶ 60} Judgment affirmed.

S. POWELL, P.J., and PIPER, J., concur.