[Cite as State v. Stober, 2014-Ohio-5629.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

PUTNAM COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 12-13-13 

 v. 

JEREMY STOBER, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Putnam County Common Pleas Court 

Trial Court No. 2012-CR-0089 

Judgment Affirmed 

Date of Decision: December 22, 2014 

 

APPEARANCES: 

 

F. Stephen Chamberlain for Appellant 

Todd C. Schroeder for Appellee 
Case No. 12-13-13 

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WILLAMOWSKI, P.J. 

{¶1} Defendant-appellant, Jeremy Stober (“Stober”), brings this appeal 

from the judgment of the Court of Common Pleas of Putnam County denying his 

petition for post-conviction relief without a hearing. For the reasons set forth 

below, the judgment is affirmed. 

{¶2} On September 17, 2012, Stober was indicted in an eight count 

indictment for one count of Tampering with Evidence in violation of R.C. 

2921.12(A)(1), a felony of the third degree, four counts of Gross Sexual 

Imposition in violation of R.C. 2907.05(A)(1), all felonies of the fourth, one count 

of Sexual Battery in violation of R.C. 2907.03(A)(7), a felony of the third degree, 

one count of Importuning in violation of R.C. 2907.07(B)(1), a felony of the fifth 

degree, and one count of Attempted Sexual Battery in violation of R.C. 

2923.02(A) and R.C. 2907.03(A)(9), a felony of the fourth degree. State v. Stober, 

3d Dist. Putnam No. 12-13-09, 2014-Ohio-1568, ¶ 2. Stober was arraigned on 

September 18, 2012, and entered pleas of not guilty to all counts. Id. at ¶ 3. A 

jury trial was held from February 25-28, 2013. Id. at ¶ 6. The jury found Stober 

guilty of one count of sexual battery, one count of importuning, and three counts 

of gross sexual imposition. Id. at ¶ 35. On March 18, 2013, Stober was sentenced 

to an aggregate prison term of ten and one-half years. Id. at ¶ 36. Stober appealed 
Case No. 12-13-13 

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from this judgment. On April 14, 2014, this court affirmed the convictions, but 

remanded the matter for a new sentencing hearing. Id. at ¶ 161. 

{¶3} On November 13, 2013, Stober filed a petition to vacate or set aside 

judgment of conviction pursuant to R.C. 2953.21. Doc. 6. The petition alleged 

that trial defense counsel was ineffective and that the prosecutor engaged in 

misconduct. On November 20, 2013, the trial court entered its judgment denying 

the petition. Doc. 7. Stober filed his notice of appeal from this judgment on 

December 18, 2013. Doc. 14. On appeal Stober raises the following assignments 

of error. 

First Assignment of Error 

The trial court abused its discretion when it dismissed [Stober’s] 

post-conviction relief petition (PCR) without a hearing, 

prejudicing [Stober] and violating his 5th, 6th & 14th 

Amendment rights to the U.S. Constitution and violating his 

rights under Article I, Section 1, 10 & 16 of the Ohio 

Constitution. 

Second Assignment of Error 

The trial court abused its discretion when it determined that 

witness Dale Nienberg’s affidavit and the testimony contained 

therein would not provide a basis for acquittal at trial and most 

likely would not have been admissible at trial, prejudicing 

[Stober] and violating his 5th, 6th & 14th Amendment rights to 

the U.S. Constitution and violating his rights under Article I, 

Section 1, 10 & 16 of the Ohio Constitution. 
Case No. 12-13-13 

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Third Assignment of Error 

The trial court abused its discretion when it erred in 

determining that trial counsel’s non-use of witness Dale 

Nienberg was reasonable trial strategy, prejudicing [Stober] and 

violating his 5th, 6th & 14th Amendment rights to the U.S. 

Constitution and violating his rights under Article I, Section 1, 

10 & 16 of the Ohio Constitution. 

Fourth Assignment of Error 

The trial court abused its discretion when it erred in 

determining that the failure of trial counsel not to consult with 

or utilize a mental health expert was reasonable trial strategy 

and the PCR petition did not establish admissibility of expert 

testimony, prejudicing [Stober] and violating his 5th, 6th & 14th 

Amendment rights to the U.S. Constitution and violating his 

rights under Article I, Section 1, 10 & 16 of the Ohio 

Constitution. 

Fifth Assignment of Error 

The trial court abused its discretion when it erred in 

determining that the inappropriate actions alleged of the 

prosecutor are factually unsupported and are not prosecutorial 

misconduct, prejudicing [Stober] and violating his 5th, 6th & 

14th Amendment rights to the U.S. Constitution and violating 

his rights under Article I, Section 1, 10, & 16 of the Ohio 

Constitution. 

Sixth Assignment of Error 

The trial court abused its discretion when it failed to 

acknowledge the cumulative effect of trial counsel’s errors when 

it decided trial counsel was not ineffective and there was no 

grounds supporting Prosecutorial Misconduct, prejudicing 

[Stober] and violating his 5th, 6th & 14th Amendment rights to 

the U.S. Constitution and violating his rights under Article I, 

Section 1, 10, & 16 of the Ohio Constitution. 
Case No. 12-13-13 

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{¶4} In the first assignment of error, Stober alleges that the trial court erred 

in denying him a hearing. Post-conviction relief is a remedy sought by a 

defendant who has been convicted of a crime. State v. Calhoun, 86 Ohio St.3d 

279, 1999-Ohio-102, 714 N.E.2d 905. Petitions for post-conviction relief are 

governed by R.C. 2953.21. 

(A)(1)(a) Any person who has been convicted of a criminal 

offense * * * and who claims that there was a denial or 

infringement of the person’s rights as to render the judgment 

void or voidable under the Ohio Constitution or the Constitution 

of the United States * * * 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. The petitioner may file a 

supporting affidavit and other documentary evidence in support 

of the claim for relief. 

* * * 

(C) * * * Before granting a hearing on a petition filed under 

division (A) of this section, the court shall determine whether 

there are substantive grounds for relief. * * * If the court 

dismisses the petition, it shall make and file findings of fact and 

conclusions of law with respect to such dismissal. 

R.C. 2953.21. “[B]efore a hearing is granted, ‘the petitioner bears the initial 

burden to submit evidentiary documents containing sufficient operative facts to 

demonstrate the lack of competent counsel and that the defense was prejudiced by 

counsel’s ineffectiveness.’” Calhoun, supra at 283 (quoting State v. Jackson, 64 

Ohio St.2d 107, 112, 413 N.E.2d 819 (1980)). A trial court’s decision to grant or 

deny a post-conviction petition filed pursuant to R.C. 2953.21 is reviewed using 
Case No. 12-13-13 

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an abuse of discretion standard. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio6679, 860 N.E.2d 77. An “abuse of discretion connotes more than an error of 

judgment; it implies that the trial court’s decision was arbitrary, unreasonable, or 

unconscionable” State v. Gutierrez, 3d Dist. Hancock No. 5-10-14, 2011-Ohio3126, ¶11. 

{¶5} In this case, Stober filed the affidavit of attorney Karl Rissland 

(“Rissland”) in support of his petition for post-conviction relief. Doc. 6. Rissland 

indicated that he was an experienced trial attorney and appellate attorney in sexual 

assault cases. Id. He indicated that he fully reviewed the record and had reviewed 

evidence outside of the record. Id. In the affidavit, Rissland states that based 

upon his review, the failure of Stober’s trial counsel to present the testimony of 

Dale Nienberg (“Nienberg”) was unreasonable and prejudicial. Id. Nienberg had 

allegedly overheard a conversation in which the primary accuser was advised by a 

friend to make up an allegation against Stober in order to get him in trouble. Id. 

Nienberg was not a sympathetic witness towards Stober, so his testimony would 

have been credible. Id. Rissland stated that in a case where the convictions solely 

rested on the credibility of the victim, the failure to bring out a motive of the 

victim to lie was ineffective assistance of counsel. Id. Rissland also alleged that 

trial counsel was ineffective for failing to call a psychological expert to explain to 
Case No. 12-13-13 

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the jury how the victim’s past history of sexual assault affected her perception of 

what happened. Id. 

{¶6} Additionally, Stober presented an affidavit of Nienberg as to what his 

trial testimony would have been had defense counsel called him. Id. Nienberg 

stated in his affidavit that he overheard three students discussing Stober and one of 

them suggested to another that she should “just make something up about him.” 

Id. He stated that the apology mentioned at trial was not about what he overheard, 

but about the way he had misunderstood the method of the investigation by the 

school. Id. He reiterated that “any statements regarding ‘misunderstood’ and misstatements’ were not in reference to what [he] overheard in the Fall, 2011 

concerning the 3 students.” Id. The trial court reviewed these affidavits and 

determined that the failure to call Nienberg as a witness was reasonable trial 

strategy and was not the result of ineffective assistance of counsel. Doc. 7. 

{¶7} The first issue raised by the petition was whether counsel was 

effective in his representation of Stober. 

In evaluating whether a petitioner has been denied effective 

assistance of counsel, this court has held that the test is “whether 

the accused, under all the circumstances, * * * had a fair trial 

and substantial justice was done.” State v. Hester (1976), 45 

Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of 

the syllabus. When making that determination, a two-step 

process is usually employed. “First, there must be a 

determination as to whether there has been a substantial 

violation of any of defense counsel’s essential duties to his client. 

Next, and analytically separate from the question of whether the 
Case No. 12-13-13 

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defendant’s Sixth Amendment rights were violated, there must 

be a determination as to whether the defense was prejudiced by 

counsel’s ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 

391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on 

other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 

1154.

On the issue of counsel’s ineffectiveness, the petitioner has the 

burden of proof, since in Ohio a properly licensed attorney is 

presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio 

St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; * * * 915 State v. 

Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d 

at 822. 

Calhoun, supra at 289. “A defendant must thus satisfy the judgment of the 

reviewing court, informed by the entire record, that the probability of a different 

result is ‘sufficient to undermine confidence in the outcome’ of the proceeding. 

United State v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 

157 (2004) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 

80 L.Ed.2d 674.). 

{¶8} In this case, Stober alleged that his counsel was ineffective for failing 

to call Nienberg as a witness to a conversation he overheard in which H.Z., the 

victim of three of the offenses for which he was convicted, was advised to make 

something up about Stober in order to get rid of him as a teacher. This testimony 

was desired to challenge the victim’s credibility by showing she had a motive to 

lie. The three charges where H.Z. was the victim were Count 5 - importuning, 

Count 6 – gross sexual imposition, and Count 7 – gross sexual imposition. 
Case No. 12-13-13 

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Notably other than some text messages that were sexual in nature after the 

investigation had started and the volume of messages between Stober and H.Z., 

the only evidence of the events forming the basis of the convictions was H.Z.’s 

testimony. However, the testimony of Nienberg, while potentially damaging to 

the credibility of H.Z., does not demonstrate that the result probably would have 

been different if Nienberg had testified. The trial court determined that the failure 

to have Nienberg testify was not prejudicial. Viewing the record as a whole and 

the allegations outside the record, this court does not find that the trial court 

abused its discretion in making this decision. 

{¶9} Stober also alleged that counsel was ineffective for failing to call an 

expert on sexual abuse to explain how H.Z.’s history of abuse would cause her to 

misinterpret what had happened. Stober claims that this would have helped the 

jury understand. However, there is no evidence presented as to what the actual 

expert would have testified if he or she had been called. All that was presented 

was the affidavit of an attorney as to what testimony would have been helpful, not 

that the expert would have testified that way in this case. Thus, the trial court did 

not abuse its discretion in finding that the alleged failures of trial counsel were not 

prejudicial and thus did not rise to the level of ineffective assistance of counsel. 

Since Stober failed to set forth sufficient operative facts to support his claim of 

ineffective assistance of counsel, the trial court did not err in failing to hold a 
Case No. 12-13-13 

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hearing on his petition for post-conviction relief. The first assignment of error is 

overruled. 

{¶10} In the second assignment of error, Stober claims that the trial court 

erred by finding that Nienberg’s testimony would not have provided a basis for 

acquittal and likely would not have been admissible at trial. As discussed above, 

the proposed testimony of Nienberg was not exculpatory in that it did not indicate 

that the crimes did not occur. Instead, the testimony merely went to the credibility 

of the victim and provided her with a motive to lie. Nienberg’s testimony did not 

even rise to the level of showing that H.Z. did lie, just that she was encouraged to 

do so.1

 Thus, this court does not find that the trial court abused its discretion in 

finding that the testimony would have been the basis of acquittal. The second 

assignment of error is overruled. 

{¶11} Next, Stober claims that the trial court erred by finding that the 

decision not to have Nienberg testify was reasonable trial strategy. This court 

acknowledges that the testimony of Nienberg might have been helpful to Stober as 

to the charges related to H.Z. However, the testimony may or may not have been 

admissible and, as discussed previously, the failure to call Nienberg to testify was 

not prejudicial. Even if it were unreasonable trial strategy, without a showing of 

prejudice, it is not reversible error. The third assignment of error is overruled. 

 

1

 Additionally, there may have been a hearsay issue in getting the overheard statement admitted at court as 

Nienberg would be testifying to what a third party stated outside of court. 
Case No. 12-13-13 

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{¶12} Stober alleges in the fourth assignment of error that the failure to call 

a mental health expert was not reasonable trial strategy. As previously discussed, 

this court has no way of knowing exactly how an expert would testify in this case 

given the facts of this case. Without this knowledge, there is no way to determine 

if the testimony would be helpful. Therefore, the trial court did not abuse its 

discretion in holding that the failure to call a mental health expert was a reasonable 

trial strategy. The fourth assignment of error is overruled. 

{¶13} In the fifth assignment of error, Stober alleges that the trial court 

erred in holding that the prosecutor did not engage in misconduct by attempting to 

convince Nienberg that he misunderstood what was said. The prosecutor then 

brought in testimony during its case in chief which indicated that Nienberg had 

retracted his statement regarding what he overheard, even though Nienberg had 

not testified at that time. Stober claims that the alleged misconduct was the 

attempt to convince Nienberg to “reconsider” his testimony prior to the trial. 

“When reviewing a claim of prosecutorial misconduct, the pertinent inquiry for an 

appellate court is 1) whether the prosecutor’s actions were actually improper, and 

2) if so, were defendant’s substantial rights adversely affected.” State v. Dixson, 

3d. Dist. Seneca No. 13-13-53, 2014-Ohio-4539, ¶43. Reversal of a judgment for 

prosecutorial misconduct is only warranted if the misconduct permeates the entire 

atmosphere of the trial and interferes with the defendant’s right to a fair trial. Id. 
Case No. 12-13-13 

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{¶14} Here the alleged misconduct primarily occurred before trial when the 

prosecutor allegedly attempted to persuade Nienberg that he was mistaken in what 

he thought he overheard. The only conduct that occurred during the trial was the 

prosecutor eliciting the testimony from another witness that would have 

potentially challenged what Nienberg would have stated if he had testified. 

However, Nienberg did not testify. Thus, any of the alleged misconduct by the 

prosecutor prior to the trial was not a part of the trial. The attempt to discredit 

Nienberg’s testimony before he testified was irrelevant because he did not testify. 

Thus, the alleged misconduct did not interfere with Stober’s right to a fair trial. 

The fifth assignment of error is overruled. 

{¶15} Finally, Stober alleges that the cumulative effect of the errors was 

such as to deny him a fair trial. The doctrine of cumulative error provides that “a 

conviction will be reversed where the cumulative effect of errors in a trial deprives 

a defendant of the constitutional right to a fair trial even though each of numerous 

instances of trial court error does not individually constitute cause for reversal.” 

State v. Garner, 74 Ohio St.3d 64, 1995-Ohio-168, 656 N.E.2d 623. “To find 

cumulative error, a court must first find multiple errors committed at trial and 

determine that there is a reasonable probability that the outcome below would 

have been different but for the combination of the harmless errors.” In re J.M., 3d. 

Dist. Putnam No. 12-11-06, 2012-Ohio-1467, ¶36. There is no question that this 
Case No. 12-13-13 

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trial was not error free or that the defense attorney may have made other choices. 

However, “there can be no such thing as an error-free trial and * * * the 

Constitution does not guarantee such a trial.” United States v. Hasting, 461 U.S. 

499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). The only guarantee is that 

the trial will be fair. State v. Bell, 112 Ohio App.3d 473, 481, 679 N.E.2d 44 (3d 

Dist. 1996). After reviewing the record before this court, we do not find that 

Stober was denied a fair trial. Thus, the cumulative effect of any errors was not 

prejudicial and the sixth assignment of error is overruled. 

{¶16} Having found no prejudicial error in the particulars assigned and 

argued, the judgment of the Court of Common Pleas of Putnam County is 

affirmed. 

Judgment Affirmed 

ROGERS and SHAW, J.J., concur in Judgment Only. 

/jlr