[Cite as State v. Schall, 2015-Ohio-2962.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

VINTON COUNTY 

STATE OF OHIO, : 

 

Plaintiff-Appellee, : 

 Case No. 14CA695 

v. : 

 DECISION AND

ROBERT W. SCHALL, : JUDGMENT ENTRY

 

 Defendant-Appellant. : RELEASED 07/20/2015 

 

 

APPEARANCES:1

Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant. 

 

Hoover, P.J. 

 {¶ 1} Defendant-appellant, Robert W. Schall, appeals his convictions and sentence in the 

Vinton County Common Pleas Court after a jury found him guilty of four counts of aggravated 

murder each with a firearm specification, one count of aggravated burglary with a firearm 

specification, one count of aggravated arson, and one count of aggravated robbery with a firearm 

specification. Schall’s appellate counsel has advised us that he has reviewed the record and can 

discern no meritorious claims on appeal. Appellate counsel has thus moved to withdraw under 

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After independently 

reviewing the record, we agree that no meritorious claims exist for appeal. Accordingly, we find 

this appeal to be wholly frivolous, grant the request to withdraw, and affirm the judgment of the 

trial court. 

I. Facts and Procedural Background 

 

1

 The State of Ohio has not entered an appearance or otherwise participated in this appeal. Appellant also has not 

entered a personal appearance in this appeal. 
Vinton App. No. 14CA695 2

 {¶ 2} On the evening of October 7, 2011, the Laurelville Fire Department was dispatched 

to the scene of a structure fire in Eagle Township, Vinton County, Ohio. When first responders 

arrived, a mobile home was fully engulfed in flames, with fire coming out of both ends of the 

home. Assistant Fire Chief Robert Miller was informed that a body might be present inside the 

mobile home and requested the presence of law enforcement. With the help of a couple of 

firemen, Miller searched the mobile home and found a badly burned and charred body. 

 {¶ 3} When officials removed the body from the mobile home, they observed obvious 

trauma to the head. The deceased was eventually identified as Michael Hunt; and an autopsy 

revealed that Hunt had been shot once in the head. An investigation led by the Ohio State Fire 

Marshal’s Office and the Vinton County Sheriff’s Office immediately ensued. Using cell phone 

records, investigators identified Schall and his longtime girlfriend Celena Danner as suspects. 

After law enforcement was unable to verify an alibi, arrest warrants were issued for Schall and 

Danner. Following his arrest, Schall confessed that he and Danner travelled to Hunt’s mobile 

home armed with a .22 caliber rifle. Schall confronted Hunt about a $160 debt that Hunt 

allegedly owed him. Schall stated that when Hunt reached for a shotgun, he shot Hunt five times 

in the head. Schall stated that after he shot Hunt, he took money and pills from Hunt’s pockets, 

took the shotgun, and set a couch on fire. Schall directed law enforcement to the location of the 

rifle. 

 {¶ 4} The Vinton County Grand Jury indicted Schall on November 16, 2011. The 

indictment charged Schall with the following seven offenses: Count One, aggravated murder in 

violation of R.C. 2903.01(A), with three separate aggravating circumstance specifications and 

one firearm specification; Count Two, aggravated murder in violation of R.C. 2903.01(B), with 

three separate aggravating circumstance specifications and one firearm specification; Count 
Vinton App. No. 14CA695 3

Three, aggravated murder in violation of R.C. 2903.01(B), with three separate aggravating 

circumstance specifications and one firearm specification; Count Four, aggravated murder in 

violation of R.C. 2903.01(B), with three aggravating circumstance specifications and one firearm 

specification; Count Five, aggravated burglary, a first-degree felony in violation of R.C. 

2911.11(A)(1) with a firearm specification; Count Six, aggravated arson, a first-degree felony in 

violation of R.C. 2909.02(A)(1); and Count Seven, aggravated robbery, a first-degree felony in 

violation of R.C. 2911.01(A)(1) with a firearm specification. 

 {¶ 5} Ultimately, the State voluntarily sought, and the trial court issued, an order 

dismissing all of the aggravated circumstance specifications for each of the aggravated murder 

charges. Meanwhile, defense counsel’s motion to suppress Schall’s confession was overruled by 

the trial court following an evidentiary hearing on the matter. 

 {¶ 6} A jury trial was conducted on April 16 and 17, 2013. Both the State and the defense 

presented evidence and arguments. The trial court instructed the jury; and the jury deliberated. 

After approximately two and a half hours of deliberation, the trial court received a written note 

from the jury indicating they were deadlocked. Upon motion of the defense, the trial court 

terminated the proceedings and declared a mistrial. 

 {¶ 7} A second trial was conducted on September 4 and 5, 2013. On the first day of this 

second trial, a jury was selected; the parties presented their opening statements; and the State 

began presenting its evidence. At the conclusion of the first day of trial, a juror went to the 

Vinton County Sheriff’s Office seeking a ride home. A sheriff’s deputy who had testified as a 

witness earlier in the day drove the juror home. The next morning, the State disclosed to the trial 

court the sheriff deputy’s contact with the juror. Defense counsel requested a mistrial. After 
Vinton App. No. 14CA695 4

interviewing the sheriff’s deputy and the juror, the trial court terminated the proceedings and 

declared a mistrial. 

 {¶ 8} A third jury trial was conducted on December 11 and 12, 2013. At this trial, the 

State presented evidence including the testimony of Miller describing the initial scene; his 

discovery of the body; his request for law enforcement; and his attempt to preserve evidence 

while firefighters worked to extinguish the fire. 

 {¶ 9} Denzel Williams, Jr., also testified during the State’s case-in-chief. Williams was a 

neighbor of Schall and Danner from Highland County, Ohio. On the evening of October 7, 2011, 

Williams agreed to watch Schall and Danner’s minor child so the pair could travel to Hunt’s 

residence in Vinton County to collect a debt. Williams indicated that the couple did not return 

until 9:00 a.m. the next morning to retrieve their daughter. After picking-up his daughter, Schall 

returned hours later and informed Williams that after he and Danner had left Hunt’s residence 

somebody had robbed and killed Hunt. Williams also testified that he had allowed Schall to store 

three guns in the attic of his home. Schall, an ex-felon, was apparently worried that if law 

enforcement came to question him about the events of October 7, he would be arrested for 

possessing the guns. Schall also asked Williams to tell law enforcement that he was home by 

10:30 p.m. or 11:00 p.m. on the night of October 7, 2011. Williams, however, told law 

enforcement that Schall and Danner were not home by 10:30 p.m. or 11:00 p.m. to pick-up their 

daughter. 

 {¶ 10} Roman Brandau, a fire and explosion investigator for the Ohio State Fire 

Marshal’s Office also testified. Brandau arrived at the scene in the early morning hours of 

October 8, 2011. From the burn patterns he observed during his examination of the fire, Brandau 

was able to conclude that the fire originated in the immediate area of the victim’s body, most 
Vinton App. No. 14CA695 5

likely on the couch. Brandau also testified that the victim’s cell phone records led to the 

identification of Schall and Danner as suspects, noting the high volume of calls made by Schall 

and Danner to Hunt on October 7. The State, through Brandau, also introduced and played for 

the jury the audio/video recording of Schall’s confession. Finally, Brandau 

concluded that the fire started as a result of an act of arson. It was Brandau’s opinion that Schall 

had shot Hunt and then intentionally started the fire, just as Schall had confessed. 

 {¶ 11} In addition to the above testimony, the trial court admitted into evidence 

numerous photographs of the mobile home and the burned body of the victim. The trial court 

also admitted into evidence a diagram of the mobile home; the audio/video recording of Schall’s 

confession; the .22 rifle recovered during the investigation; .22 caliber shells recovered in a 

search of Schall’s home; money and shot gun shells recovered from Schall’s home; a projectile 

recovered from the autopsy of the victim; the cell phone record subpoena; one page of the cell 

phone records; and the autopsy report.2

 {¶ 12} The defense also presented evidence at the jury trial. First, Danner was called as a 

witness by the defense upon cross-examination. Danner testified that she had resided with Schall 

since 2002, and that a daughter was born to them in 2007. She also testified that on the day of the 

incident she and Schall travelled to Hunt’s residence to collect money owed to them. She 

indicated that upon arrival everything seemed normal. The couple obtained a Percocet pill from 

Hunt and consumed the pill inside the mobile home. Then, they started talking about the debt; 

and an argument ensued. During the argument, Danner asked Schall to get her a drink from the 

car. When Schall returned, he had a long-gun down his side. According to Danner, Hunt then 

reached for a shotgun; and Schall shot him. Danner recalls hearing three shots and then running 

 

2

 Following the State’s case-in-chief, the defense moved for an acquittal on all counts. The trial court denied the 

motion for acquittal. 
Vinton App. No. 14CA695 6

out of the mobile home. Danner testified that she then waited in the vehicle until Schall returned 

from inside the mobile home. Schall eventually returned with the .22 rifle and the victim’s 

shotgun. Danner acknowledged that she had obtained a plea deal from the State in exchange for 

her testimony against Schall. 

 {¶ 13} Schall also testified in his own defense. He testified that he and Danner had 

loaned Hunt $160. He and Danner had gone to Hunt’s residence on October 7, 2011, because 

Danner wanted to retrieve payment on the loan. Schall indicated that he did not take his .22 

caliber rifle with him. Upon arriving at Hunt’s residence, Schall testified that he stayed in the 

vehicle and Danner entered the mobile home. According to Schall, Danner emerged from the 

mobile home five minutes later with eight pills. On the following day, Schall heard about the fire 

from a friend; and he asked Danner what had occurred inside the mobile home. According to 

Schall, Danner admitted to shooting Hunt in the face with a .22 revolver because she was tired of 

Hunt grabbing her. Schall testified that he gave officers a false confession to protect Danner so 

she could care for their daughter. Schall denied killing Hunt and took no responsibility for the 

fire. 

 {¶ 14} Following the third trial, the jury returned guilty verdicts on all seven counts of 

the indictment and the firearm specifications as to Counts One, Two, Three, Four, Five, and 

Seven. The trial court conducted a sentencing hearing on January 9, 2014. By stipulation of the 

parties, the trial court determined that all seven offenses were allied offenses of similar import 

and would merge for purposes of sentencing. Thus, the State elected to proceed to sentencing 

under Count Two, aggravated murder, with aggravated arson as the underlying offense, and the 

firearm specification thereto. The trial court ultimately imposed a sentence of life in prison, with 

parole eligibility after thirty years, together with a consecutive term of three years mandatory 
Vinton App. No. 14CA695 7

prison for the firearm specification. The trial court also ordered that Schall pay court costs. 

Schall timely filed a notice of appeal from the entries journalizing the convictions and sentence. 

II. Anders

 {¶ 15} Although Schall has appealed his convictions and sentence, his appellate counsel 

has filed both a motion to withdraw and an Anders brief. 

In Anders, the United States Supreme Court held that if counsel determines after a 

conscientious examination of the record that the case is wholly frivolous, counsel 

should so advise the court and request permission to withdraw. Counsel must 

accompany the request with a brief identifying anything in the record that could 

arguably support the appeal. [Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 

493]. The client should be furnished with a copy of the brief and given time to 

raise any matters the client chooses. Id. Once these requirements are met, we must 

fully examine the proceedings below to determine if an arguably meritorious issue 

exists. Id. If so, we must appoint new counsel and decide the merits of the appeal. 

Id. If we find the appeal frivolous, we may grant the request to withdraw and 

dismiss the appeal without violating federal constitutional requirements or may 

proceed to a decision on the merits if state law so requires. Id. 

State v. Lester, 4th Dist. Vinton No. 12CA689, 2013-Ohio-2485, ¶ 3. 

 {¶ 16} Here, Schall’s counsel has satisfied the requirements of Anders. While Schall has 

not filed a pro se brief, his appellate counsel has identified the following potential assignments of 

error: 

First Potential Assignment of Error: 

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT CONVICTIONS 

FOR AGGRAVATED MURDER AND THE CONVICTIONS FOR 
Vinton App. No. 14CA695 8

AGGRAVATED MURDER WERE AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE. 

Second Potential Assignment of Error: 

THE SECOND RETRIAL (THIRD TRIAL) VIOLATED THE 

CONSTITUTIONAL BAR TO DOUBLE JEOPARDY. 

Third Potential Assignment of Error: 

THE TRIAL COURT’S SENTENCE WAS UNREASONABLE AND AN 

ABUSE OF DISCRETION. 

Fourth Potential Assignment of Error: 

SCHALL WAS DENIED HIS RIGHT TO DUE PROCESS WHEN HIS TRIAL 

COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY 

FAILING TO MOVE THE TRIAL COURT TO WAIVE THE IMPOSITION OF 

COURT COSTS. 

III. Law and Analysis 

 {¶ 17} As required, we will examine appellate counsel’s potential assignments of error 

and the entire record to determine if an arguably meritorious issue exists or if this appeal is 

wholly frivolous. 

A. Sufficiency of the Evidence and Manifest Weight of the Evidence 

 {¶ 18} In the first potential assignment of error, appellate counsel asserts that Schall’s 

convictions for aggravated murder were not supported by sufficient evidence, or alternatively, 

were against the manifest weight of the evidence. 

 {¶ 19} “The legal concepts of sufficiency of the evidence and weight of the evidence are 

both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 

N.E.2d 541 (1997). “When reviewing the sufficiency of the evidence, our inquiry focuses 

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed, 

reasonably could support a finding of guilt beyond a reasonable doubt.” State v. Davis, 4th Dist. 
Vinton App. No. 14CA695 9

Ross No. 12CA3336, 2013–Ohio–1504, ¶ 12. “The standard of review is whether, after viewing 

the probative evidence and inferences reasonably drawn therefrom in the light most favorable to 

the prosecution, any rational trier of fact could have found all the essential elements of the 

offense beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 

2781, 61 L.Ed.2d 560 (1979). Therefore, when we review a sufficiency of the evidence claim in 

a criminal case, we review the evidence in a light most favorable to the prosecution. State v. Hill,

75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d 465, 477, 620 

N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a sufficiency of the 

evidence claim unless reasonable minds could not reach the conclusion the trier of fact did. State 

v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 

484, 739 N.E.2d 749 (2001). 

 {¶ 20} “ ‘Although a court of appeals may determine that a judgment of a trial court is 

sustained by sufficient evidence, that court may nevertheless conclude that the judgment is 

against the weight of the evidence.’ ” State v. Topping, 4th Dist. Lawrence No. 11CA6, 2012–

Ohio–5617, ¶ 60, quoting Thompkins at 387. “When an appellate court considers a claim that a 

conviction is against the manifest weight of the evidence, the court must dutifully examine the 

entire record, weigh the evidence, and consider the credibility of witnesses.” Id. “The reviewing 

court must bear in mind, however, that credibility generally is an issue for the trier of fact to 

resolve.” Id., citing State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001), and State v. 

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. This is so 

because “[t]he trier of fact ‘is best able to view the witnesses and observe their demeanor, 

gestures, and voice inflections, and use these observations in weighing the credibility of the 
Vinton App. No. 14CA695 10

proffered testimony.’ ” State v. Pippen, 4th Dist. Scioto No. 11CA3412, 2012–Ohio–4692, ¶ 31, 

quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). 

 {¶ 21} “Once the reviewing court finishes its examination, the court may reverse the 

judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in 

evidence, clearly lost its way and created such a manifest miscarriage of justice that the 

conviction must be reversed and a new trial ordered.” (Quotations omitted.) Davis at ¶ 14. 

{¶ 22} If the prosecution presented substantial evidence upon which the trier of fact 

reasonably could conclude, beyond a reasonable doubt, that the essential elements of the offense 

had been established, the judgment of conviction is not against the manifest weight of the 

evidence. State v. Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 16 (4th 

Dist.). A reviewing court should find a conviction against the manifest weight of the evidence “ 

‘only in the exceptional case in which the evidence weighs heavily against the conviction.’ ” 

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 

175, 485 N.E.2d 717 (1st Dist.1983); see also State v. Lindsey, 87 Ohio St.3d 479, 483, 721 

N.E.2d 995 (2000). 

{¶ 23} In Count One of the indictment, Schall was convicted of aggravated murder under 

R.C. 2903.01(A). R.C. 2903.01(A) provides as follows: “No person shall purposely, and with 

prior calculation and design, cause the death of another * * *.” In Counts Two through Four, 

Schall was convicted of aggravated murder under R.C. 2903.01(B), which states: 

No person shall purposely cause the death of another * * * while committing or 

attempting to commit, or while fleeing immediately after committing or 

attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated 
Vinton App. No. 14CA695 11

robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a 

person is present or likely to be present, terrorism, or escape. 

R.C. 2903.01(B) is often referred to as the felony-murder provision of the aggravated murder 

statute. State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 29. Count Two 

lists aggravated arson as the underlying felony offense. Counts Three and Four list aggravated 

burglary and aggravated robbery, respectively, as the underlying predicate offenses supporting 

the felony-murder charges.3

 

 {¶ 24} First, appellate counsel asserts that Schall’s conviction under R.C. 2903.01(A) 

(Count One) is against the manifest weight of the evidence and is not supported by sufficient 

evidence because the State failed to prove that he acted with prior calculation and design. 

Specifically, appellate counsel contends that Schall’s recorded confession and Danner’s 

testimony demonstrate that Schall shot Hunt only after Hunt had reached for a shotgun. 

 {¶ 25} No “bright-line test” exists to “emphatically distinguish[] between the presence or 

absence of ‘prior calculation and design.’ Instead, each case turns on the particular facts and 

evidence presented at trial.” State v. Taylor, 78 Ohio St.3d 15, 20, 676 N.E.2d 82 (1997); see 

also State v. Coley, 93 Ohio St.3d 253, 263, 754 N.E.2d 1129 (2001). “ ‘[P]rior calculation and 

design’ requires ‘a scheme designed to implement the calculated decision to kill.’ ” State v. 

D'Ambrosio, 67 Ohio St.3d 185, 196, 616 N.E.2d 909 (1993), quoting State v. Cotton, 56 Ohio 

St.2d 8, 11, 381 N.E.2d 190 (1978). Additionally, three factors may help in determining whether 

prior calculation and design exists: (1) whether the accused and victim knew each other, and, if 

so, whether that relationship was strained; (2) whether the accused gave thought or preparation to 

choosing the murder weapon or the murder site; or (3) whether the act was drawn out or whether 

 

3

 We note that the indictment included separate counts for the underlying felonies—Counts Five through Seven - 

and these counts set forth the elements for these offenses. 
Vinton App. No. 14CA695 12

it was an almost instantaneous eruption of events. These circumstances may coincide to support 

the conclusion that the crimes were committed with prior calculation and design. State v. Braden,

98 Ohio St.3d 354, 2003–Ohio–1325, 785 N.E.2d 439, ¶ 62. 

 {¶ 26} Here, the jury did not create a manifest miscarriage of justice by convicting Schall 

of aggravated murder under R.C. 2903.01(A). The state presented substantial evidence upon 

which the jury reasonably could conclude that Schall committed the offense with prior 

calculation and design. First, the victim and Schall knew each other and at the time of the 

incident had a strained relationship. Before the victim's death, Schall admitted that the victim 

owed him money and that the debt had angered him. Schall told a neighbor that he planned on 

confronting the victim and getting his money back. Schall and Danner both testified that the 

victim owed them money and the purpose of travelling to the mobile home on the night of the 

incident was to collect on the debt. Second, according to Danner’s testimony and Schall’s 

recorded confession, Schall placed the gun used to kill the victim in the back seat of Danner’s 

vehicle before leaving their shared residence. This fact demonstrates that he gave thought to 

choosing the murder weapon. Also, the fact that Schall traveled to the victim’s home in Vinton 

County to confront the victim shows that Schall gave thought to the murder site. Vinton County 

is a significant distance from Schall’s home in Hillsboro; and Schall may have thought that 

authorities would not link the crime to suspects that lived so far away. Schall was also familiar 

with the layout of the victim’s home, having been there on prior occasions. Third, according to 

Danner, after arguing with the victim for some time, Schall briefly left the mobile home to 

retrieve the gun, and then re-entered the home and shot the victim. This shows that he had 

sufficient time to consider his actions. While Schall’s recorded confession depicts a slightly 
Vinton App. No. 14CA695 13

different version of the events, it also demonstrates that Schall and the victim had argued about 

the debt for some time before the victim’s ultimate demise. 

 {¶ 27} Additionally, the following facts help establish that Schall committed the murder 

with prior calculation and design. The victim's death was brutal and instantaneous. The evidence 

shows that the victim died of at least one gunshot wound to the head. Schall even stated in his 

recorded confession that he got the victim in the “good eye”. See State v. Campbell, 90 Ohio 

St.3d 320, 330, 738 N.E.2d 1178 (2000) (firing shots into a victim's head at close range showed 

prior calculation and design). Plus, following the murder Schall immediately reached into the 

victim’s pockets and took pills and money. Moreover, the mobile home was set on fire after the 

murder, suggesting that the perpetrator intended to destroy evidence of the murder and other 

crimes. All of the foregoing facts help show that Schall committed the murder with prior 

calculation and design. 

 {¶ 28} To the extent that Schall’s trial testimony differed from his recorded confession, 

and from Danner’s testimony, we note that the weight to be afforded evidence and the credibility 

of testimony are issues to be determined by the trier of fact. State v. Frazier, 73 Ohio St.3d 323, 

339, 652 N.E.2d 1000 (1995), citing Grant, 67 Ohio St.3d at 477, 620 N.E.2d 50. As stated 

above, the fact finder “is best able to view the witnesses and observe their demeanor, gestures 

and voice inflections, and use these observations in weighing the credibility of the proffered 

testimony.” Seasons Coal Co., 10 Ohio St.3d at 80, 461 N.E.2d 1273. Here, both defense counsel 

and the State fully examined Schall and Danner concerning their past criminal history, their 

history of drug use, their relationship with the victim, their version of events, Danner’s plea 

agreement, and any other biases or motives they may have had in testifying at trial. Thus, the 

jury had before it sufficient facts to ascertain Schall and Danner’s credibility and to weigh it 
Vinton App. No. 14CA695 14

accordingly. Having reviewed the testimony and the other evidence adduced at trial, we do not 

believe that there was insufficient evidence to prove prior calculation and design, or that the jury 

clearly lost its way in convicting Schall of aggravated murder under R.C. 2903.01(A). 

 {¶ 29} Next, appellate counsel contends that the evidence was insufficient to sustain 

Schall’s convictions for aggravated (felony) murder (Counts Two through Four) because Schall 

did not commit the underlying felonies until after the purposeful killing of the victim. In support 

of this argument, appellate counsel argues that the term “while,” as that term appears in R.C. 

2903.01(B), requires proof that the purposeful killing of another occur during the commission of 

the underlying felony offense or while fleeing immediately after committing the underlying 

felony. 

 {¶ 30} The Ohio Supreme Court, however, “has rejected any notion that R.C. 2903.01(B) 

* * * require[s] proof that the offender formed the intent to commit the pertinent underlying 

felony before or during the commission of the acts which resulted in the murder victim's death.” 

State v. Palmer, 80 Ohio St.3d 543, 570, 687 N.E.2d 685 (1997), citing State v. Williams, 74 

Ohio St.3d 569, 576–578, 660 N.E.2d 724 (1996), and State v. Biros, 78 Ohio St.3d 426, 449–

451, 678 N.E.2d 891 (1997). Moreover, “the term ‘while’ does not indicate * * * that the killing 

must occur at the same instant as the [underlying felony], or that the killing must have been 

caused by the [felony].” State v. Cooper, 52 Ohio St.2d 163, 179–180, 370 N.E.2d 725 (1977). 

“Nor does it mean that the felony must have been the motive for the killing.” State v. Johnson, 

112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 55, citing Williams at 577, and State v. 

McNeill (1998), 83 Ohio St.3d 438, 441, 700 N.E.2d 596 (1998). 

 {¶ 31} Rather, the Ohio Supreme Court has consistently held that “while” means that “ 

‘the killing must be directly associated with the [felony] as part of one continuous occurrence * * 
Vinton App. No. 14CA695 15

*.’ ” Johnson at ¶ 56, quoting Cooper at 179–180; see also State v. Cooey, 46 Ohio St.3d 20, 23, 

544 N.E.2d 895 (1989). “ ‘[T]he term “while” means that the death must occur as part of acts 

leading up to, or occurring during, or immediately subsequent to the [relevant felony].’ ” Id., 

quoting Williams at 577. “ ‘The sequence of events’ may be ‘examined in light of time, place, 

and causal connection’ to determine whether it ‘amounts to “one continuous occurrence.” ’ ” Id., 

quoting McNeill at 441. 

 {¶ 32} Here, the evidence indicates that money, pills, and a shotgun were taken from 

Hunt immediately after he was shot. Additionally, Hunt’s mobile home was set ablaze just after 

Hunt was shot. Schall, himself, admitted during his recorded confession that he personally took 

the money, pills, and shotgun from Hunt, although he later changed his story at trial. Schall also 

initially confessed to starting the fire immediately after he shot Hunt. Thus, we do not believe 

that there was insufficient evidence to prove the essential elements of aggravated murder under 

R.C. 2903.01(B). 

 {¶ 33} Viewing the evidence in the light most favorable to the prosecution, it is clear that 

any rational trier of fact could have found that the killing was “associated with” the underlying 

felonies “as part of one continuous occurrence.” Likewise, the trier of fact could have found that 

the aggravated murder “occur[red] as part of acts leading up to” the underlying felonies. 

 {¶ 34} Finally, appellate counsel argues that Schall did not trespass on the victim’s 

property. And if Schall did not trespass, he could not have committed aggravated burglary. And 

if Schall could not have committed aggravated burglary, he could not have committed 

aggravated murder. See R.C. 2903.01(B) (including aggravated burglary as a predicate offense 

for aggravated murder). Therefore, according to appellate counsel, the State did not prove the 
Vinton App. No. 14CA695 16

counts involving either (1) aggravated burglary or (2) aggravated murder—that is, Counts Three 

and Five. 

 {¶ 35} R.C. 2911.11(A) is the aggravated burglary statute, and it states that: 

No person, by force, stealth, or deception, shall trespass in an occupied structure 

or in a separately secured or separately occupied portion of an occupied structure, 

when another person other than an accomplice of the offender is present, with 

purpose to commit in the structure or in the separately secured or separately 

occupied portion of the structure any criminal offense, if any of the following 

apply: * * *. 

 {¶ 36} Under R.C. 2911.21(A)(1)'s definition of “criminal trespass,” “[n]o person, 

without privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of 

another[.]” 

 {¶ 37} Here, we find that appellate counsel’s argument has no merit. Even if Schall had 

permission to enter Hunt’s mobile home, “the privilege of an invited guest to be on the premises 

is terminated if [that guest] commits a violent act.” State v. Young, 4th Dist. Scioto No. 

07CA3195, 2008–Ohio–4752, ¶ 25, citing State v. Steffen, 31 Ohio St.3d 111, 115, 509 N.E.2d 

383 (1987); see also State v. Evans, 4th Dist. Jackson No. 10CA1, 2012-Ohio-1562, ¶ 63. 

Therefore, once Schall attacked Hunt, he became a trespasser and he no longer had the privilege 

to be in Hunt’s home. Accordingly, because the jury could have reasonably found that Schall 

trespassed upon Hunt’s property, we reject appellate counsel’s trespass-related arguments. 

 {¶ 38} Based on the foregoing, we find no merit in the first potential assignment of error 

identified by Schall’s appellate counsel. 

B. Double Jeopardy 
Vinton App. No. 14CA695 17

{¶ 39} In the second potential assignment of error, appellate counsel contends that the 

second retrial, i.e., the third and final trial, was barred by the double jeopardy clause contained in 

the Fifth Amendment to the United States Constitution. 

 {¶ 40} In Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), 

the United States Supreme Court stated the following: 

[T]he circumstances under which [a criminal defendant who moved for a mistrial] 

may invoke the bar of double jeopardy * * * are limited to those cases in which 

the conduct giving rise to the successful motion for a mistrial was intended to 

provoke the defendant into moving for a mistrial. 

The Ohio Supreme has adopted the Kennedy rule, noting that: 

The Double Jeopardy Clause of the Fifth Amendment, made applicable to the 

states through the Fourteenth Amendment, protects a criminal defendant from 

repeated prosecutions for the same offense. Oregon v. Kennedy (1982), 456 U.S. 

667, 671, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416, 422. When a trial court grants a 

criminal defendant's request for a mistrial, the Double Jeopardy Clause does not 

bar a retrial. Id. at 673, 102 S.Ct. at 2088, 72 L.Ed.2d at 423. A narrow exception 

lies where the request for a mistrial is precipitated by prosecutorial misconduct 

that was intentionally calculated to cause or invite a mistrial. Id. at 678–679, 102 

S.Ct. at 2091, 72 L.Ed.2d at 427. See, also, State v. Doherty (1984), 20 Ohio 

App.3d 275, 20 OBR 338, 485 N.E.2d 783. Only where the prosecutorial conduct 

in question is intended to “goad” the defendant into moving for a mistrial may 

defendant raise the bar of double jeopardy to a second trial after having succeeded 
Vinton App. No. 14CA695 18

in aborting the first on his own motion. Oregon v. Kennedy, supra, 456 U.S. at 

676, 102 S.Ct. at 2089, 72 L.Ed.2d at 425. 

State v. Loza, 71 Ohio St.3d 61, 70, 641 N.E.2d 1082 (1994), overruled on other grounds. 

 {¶ 41} Here, the trial court declared a mistrial ending the second trial, upon Schall’s 

motion, after Schall had learned that a juror had a conversation with a sheriff’s deputy, who had 

testified as a witness. The conversation between the juror and the sheriff’s deputy may have 

involved some limited conversation about the trial. [Sept. 4 and 5, 2013 Trial Tr. at 160-161.]

 {¶ 42} After reviewing the record, we conclude that the prosecutor’s conduct was not 

intended to provoke Schall into moving for a mistrial. The prosecution revealed the conversation 

to the trial court and defendant the morning of the second day of trial at its earliest opportunity to 

do so and in the middle of its presentation of evidence. There was no apparent advantage to the 

State to obtain a mistrial at that time. There is no indication that the State engaged in an 

intentional act of deception, or that the State directed the sheriff’s deputy to initiate contact with 

the juror. Rather, it was the juror who had sought the deputy for a ride home following the first 

day of trial. While the sheriff’s deputy should have avoided being the person to give the juror a 

ride home, the act, nonetheless, does not appear to be prosecutorial misconduct designed to 

provoke Shall into seeking a mistrial. In fact, in reviewing the record, it appears that the 

prosecution was just as surprised as the defense in learning of the conversation from the sheriff’s 

office. 

 {¶ 43} Because the prosecutor's conduct was not calculated to manipulate Schall into 

seeking a mistrial, Schall's retrial was not barred by the prohibition against double jeopardy. 

Accordingly, appellate counsel’s second potential assignment of error is without merit. 

C. Appellate Review of Aggravated Murder Sentence 
Vinton App. No. 14CA695 19

{¶ 44} In the third potential assignment of error, appellate counsel contends that the trial 

court’s sentence was unreasonable and an abuse of discretion. 

 {¶ 45} In the case sub judice, the trial court determined that all seven offenses were allied 

offenses of similar import subject to merger, and the State elected to proceed to sentencing under 

Count Two, aggravated felony murder, with aggravated arson as the predicate offense. Recently, 

this Court held that “pursuant to R.C. 2953.08(D)(3)4, we lack statutory authority to review 

[aggravated murder and murder] sentence[s] on an evidentiary basis.” State v. Hawkins, 4th Dist. 

Gallia No. 13CA3, 2014-Ohio-1224, ¶ 15. Thus, relying on the rationale more fully set forth in 

Hawkins, we conclude that the trial court’s sentence is not subject to appellate review and 

appellate counsel’s third potential assignment of error lacks merit. 

D. Ineffective Assistance of Counsel 

{¶ 46} In the fourth potential assignment of error, appellate counsel contends that Schall 

received ineffective assistance from counsel because his trial attorney failed to move for waiver 

of court costs. 

 {¶ 47} Criminal defendants have a right to counsel, including a right to the effective 

assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 

763 (1970), fn. 14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008–Ohio–1366, ¶ 21. To 

establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1) 

that his counsel's performance was deficient and (2) that the deficient performance prejudiced the 

defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State 

v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show deficient 

 

4

 R.C. 2953.08(D)(3) provides that “[a] sentence imposed for aggravated murder or murder pursuant to sections 

2929.02 to 2929.06 of the Revised Code is not subject to review under this section.” 
Vinton App. No. 14CA695 20

performance, the defendant must prove that counsel's performance fell below an objective level 

of reasonable representation. To show prejudice, the defendant must show a reasonable 

probability that, but for counsel's errors, the result of the proceeding would have been different.” 

State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶ 95. “Failure to 

establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 

2008–Ohio–968, ¶ 14. 

 {¶ 48} “When considering whether trial counsel's representation amounts to deficient 

performance, ‘a court must indulge a strong presumption that counsel's conduct falls within the 

wide range of reasonable professional assistance.’ ” State v. Walters, 4th Dist. Washington Nos. 

13CA33, 13CA36, 2014–Ohio–4966, ¶ 23, quoting Strickland at 689. “Thus, ‘the defendant 

must overcome the presumption that, under the circumstances, the challenged action might be 

considered sound trial strategy.’ ” Id., quoting Strickland at 689. “ ‘A properly licensed attorney 

is presumed to execute his duties in an ethical and competent manner.’ ” Id., quoting State v. 

Taylor, 4th Dist. Washington No. 07CA1, 2008–Ohio–482, ¶ 10. “Therefore, a defendant bears 

the burden to show ineffectiveness by demonstrating that counsel's errors were so serious that he 

or she failed to function as the counsel guaranteed by the Sixth Amendment.” Id. 

 {¶ 49} R.C. 2947.23(A)(1)(a) mandates that “[i]n all criminal cases * * * the judge or 

magistrate shall include in the sentence the costs of prosecution * * * and render a judgment 

against the defendant for such costs.” “Despite the fact that R.C. 2947.23(A) requires a judge to 

assess court costs against all criminal defendants, the Supreme Court of Ohio has held that 

‘waiver of costs is permitted—but not required—if the defendant is indigent.’ ” State v. Stone,

4th Dist. Scioto No. 11CA3462, 2013–Ohio–209, ¶ 28, quoting State v. Joseph, 125 Ohio St.3d 

76, 2010–Ohio–954, 926 N.E.2d 278, ¶ 11. 
Vinton App. No. 14CA695 21

 {¶ 50} When considering a claim that trial counsel was ineffective based on a failure of 

counsel to seek waiver of court costs, the test applied by Ohio courts is whether a reasonable 

probability exists that the trial court would have found appellant indigent had such waiver been 

sought. State v. Doss, 4th Dist. Gallia No. 09CA20, 2012–Ohio–883, ¶ 19. “A determination that 

appellant was indigent requires that the court consider both present and future ability to pay the* 

* * costs.” Id. at ¶ 21. 

 {¶ 51} Here, Schall's future ability to pay the costs is bleak, as he will be incarcerated for 

at least thirty-three years and potentially for the remainder of his life. Upon reviewing the record, 

however, we are not persuaded that Schall lacks the present ability to pay the court costs. It was 

adduced at trial, inter alia, that Schall had worked as a certified welder; that he had profited from 

the sale of real estate just prior to the murder; and that he had profited from the sale of the 

shotgun stolen from the victim. It was also learned that Schall, on occasion, worked with 

Williams, his neighbor, and earned income doing “some other side things”. [Dec. 11 and 12, 

2013 Trial Tr. at 26.] Therefore, we cannot conclude that a reasonable probability exists that 

Schall would have been found indigent had his counsel raised the issue. Consequently, we cannot 

find that trial counsel's performance was constitutionally ineffective for failing to raise the issue. 

Appellate counsel’s fourth potential assignment of error is without merit. 

IV. Conclusion 

{¶ 52} In conclusion, we find no merit in the potential assignments of error identified by 

Schall’s appellate counsel. Furthermore, after independently reviewing the proceedings below, 

we have found no other potential issues for appeal. We find no arguably meritorious issues exist 

for appeal. We find that Schall’s appeal is wholly frivolous; therefore, we grant appellate 

counsel’s motion to withdraw and affirm the judgment of the trial court.
Vinton App. No. 14CA695 22

JUDGMENT AFFIRMED. 

 
Vinton App. No. 14CA695 23

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein 

taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the Vinton County 

Common Pleas Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously posted. The 

purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an 

application for a stay during the pendency of the proceedings in that court. If a stay is continued 

by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the 

failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the fortyfive day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court 

of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration 

of sixty days, the stay will terminate as of the date of such dismissal. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment and Opinion. 

McFarland, A.J.: Concurs in Judgment Only. 

 For the Court 

 By: 

Marie Hoover, Presiding Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the 

time period for further appeal commences from the date of filing with the clerk.