[Cite as State v. Schall,

.]

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,

,

,

(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,

,

,

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

raise any matters the client chooses.

Once these requirements are met, we must

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

exists.

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

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.

State v. Lester, 4th Dist. Vinton No. 12CA689,

.

{¶ 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,

,

(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.”

citing Jackson v. Virginia,

,

,

(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,

,

(1996); State v. Grant,

,

(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,

,

(2001); State v. Treesh,

,

(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

. “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.”

“The reviewing

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

resolve.”

citing State v. Issa,

,

(2001), and State v.

DeHass,

,

(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,

,

(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,

,

,

(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,

,

, quoting State v. Martin,

,

(1st Dist. 1983); see also State v. Lindsey,

,

(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,

,

,

. 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,

,

(1997); see

also State v. Coley,

,

(2001). “ ‘[P]rior calculation and

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

D'Ambrosio,

,

(1993), quoting State v. Cotton,

,

(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,

, 2003–Ohio–1325,

.

{¶ 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,

,

(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,

,

(1995), citing Grant,

,

. 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.,

,

. 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,

,

(1997), citing State v. Williams,

, 576–578,

(1996), and State v. Biros,

, 449–

451,

(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,

, 179–180,

(1977).

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

,

,

, citing Williams at 577, and State v.

McNeill (1998),

,

(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,

,

(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].’ ”

quoting

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

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

quoting

.

{¶ 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,

,

(1987); see also State v. Evans, 4th Dist. Jackson No. 10CA1,

.

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,

,

,

(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),

,

,

. When a trial court grants a

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

bar a retrial.

,

,

. 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.

at 678–679,

,

. See, also, State v. Doherty (1984),

, 20 OBR 338,

. 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,

,

,

.

State v. Loza,

,

(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,

. 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,

,

,

(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,

,

,

(1984); State v. Issa,

,

(2001); State

v. Goff,

,

(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,

, 2006–Ohio–2815,

. “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

. “Thus, ‘the defendant

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

considered sound trial strategy.’ ”

quoting

. “ ‘A properly licensed attorney

is presumed to execute his duties in an ethical and competent manner.’ ”

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.”

{¶ 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,

, 2010–Ohio–954,

. 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 forty- five 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.