[Cite as State v. Klein, 2013-Ohio-229.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. CT2012-0021
KASEY L. KLEIN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2011-0206
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: January 25, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MICHAEL HADDOX ERIC J. ALLEN
PROSECUTING ATTORNEY THE LAW OFFICE OF
ROBERT L. SMITH ERIC J. ALLEN, LTD
ASSISTANT PROSECUTOR 713 South Front Street
27 North Fifth Street Columbus, Ohio 43206
Zanesville, Ohio 43701
Muskingum County, Case No. CT2012-0021 2
Wise, J.
{¶1} Appellant Kasey Klein appeals from her convictions, in the Court of
Common Pleas, Muskingum County, for child endangering and involuntary
manslaughter. The relevant facts leading to this appeal are as follows.
{¶2} On the evening of June 3, 2011, Appellant Kasey Klein and her husband,
co-defendant Richard H. Klein, Jr., commenced a tent camping trip at Ellis Dam, Lock
11. They brought Appellant Kasey’s sons, A.C. (age three) and A.J. (age two), with
them on the trip.
{¶3} The next morning, emergency management officials were alerted that the
boys were missing. As part of the search effort, rescue teams brought in two specially-
trained tracking dogs, who followed the boys’ scent to a lockwall about five-hundred feet
from the tent site. Searchers ultimately found A.C.’s body floating in the river. He was
wearing a sleeper and had both shoes on. The coroner subsequently determined that
A.C.’s death was caused by accidental drowning. A.J. has never been found, although
at least one of his shoes was located.
{¶4} On September 7, 2011, appellant and Richard were each indicted by the
Muskingum County Grand Jury on two counts of child endangering, felonies of the third
degree under R.C. 2919.22(A), and two counts of involuntary manslaughter under R.C.
2903.04(A), felonies of the first degree.
{¶5} Appellant thereafter appeared in court and entered pleas of not guilty. The
case proceeded to a jury trial commencing January 30, 2012.
Muskingum County, Case No. CT2012-0021 3
{¶6} The jury thereafter found appellant guilty as charged on all counts.
Richard, who has filed a separate appeal to this Court, was also found guilty as charged
on all counts.
{¶7} On February 21, 2012, following a sentencing hearing, appellant was
sentenced to a total prison term of twelve years, plus restitution.
{¶8} On March 21, 2012, appellant filed a notice of appeal. She herein raises
the following two Assignments of Error:
{¶9} “I. THE STATE OF OHIO FAILED TO PRODUCE SUFFICIENT
EVIDENCE TO SUPPORT THE CONVICTIONS IN THIS MATTER FOR CHILD
ENDANGERING AND INVOLUNTARY MANSLAUGHTER IN VIOLATION OF THE
FEDERAL CONSTITUTION’S GUARANTEES OF DUE PROCESS.
{¶10} “II. THE CONVICTION [SIC] FOR CHILD ENDANGERING AND
INVOLUNTARY MANSLAUGHTER WERE AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE PRODUCED BY THE STATE OF OHIO IN VIOLATION OF THE
FEDERAL CONSTITUTION’S GUARANTEE OF DUE PROCESS.”
I., II.
{¶11} In her First Assignment of Error, appellant contends her convictions were
not supported by sufficient evidence. In her Second Assignment of Error, appellant
contends her convictions were against the manifest weight of the evidence.
{¶12} As noted in our recitation of facts, Appellant Kasey’s co-defendant,
Richard H. Klein, Jr., brought a separate appeal to this Court. In that case, this Court
has concluded that the joint trial of Richard and Kasey was an abuse of discretion and
that severance of the co-defendants was warranted on due process grounds. Based on
Muskingum County, Case No. CT2012-0021 4
said reversal in Richard’s case, we find the proper remedy in the within appeal is to also
reverse for a new trial as to Kasey.
{¶13} In reaching this decision, we recognize that Appellant Kasey has not
raised the issue of severance as an assigned error. However, the potential remedy for a
manifest weight challenge, which has been herein raised, is reversal of the conviction
and the ordering of a new trial. See, e.g., State v. Braden, 98 Ohio St.3d 354, 363, 785
N.E.2d 439, 2003-Ohio-1325, ¶ 54; State v. Martin (1983), 20 Ohio App.3d 172, 175. As
such, appellant cannot now complain that she was not pursuing a possible new trial via
her appeal. Furthermore, the Ohio Supreme Court has established that “[u]pon remand
from an appellate court, the lower court is required to proceed from the point at which
the error occurred.” State ex rel. Stevenson v. Murray (1982), 69 Ohio St.2d 112, 113,
23 O.O.3d 160, 431 N.E.2d 324. Because the trial court’s now-reversed decision to try
the co-defendants together occurred at the beginning of the trial, the error must be
corrected from that point in the proceedings. As such, both Richard and Kasey are
entitled to new trials.
Muskingum County, Case No. CT2012-0021 5
{¶14} We therefore will not address the merits of the two assigned errors.
{¶15} For the reasons stated in the foregoing, the decision of the Court of
Common Pleas, Muskingum County, Ohio, is hereby reversed and remanded for further
proceedings consistent with this opinion.
By: Wise, J.
Farmer, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0108
Muskingum County, Case No. CT2012-0021 6
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
KASEY L. KLEIN :
:
Defendant-Appellant : Case No. CT2012-0021
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Muskingum County, Ohio, is reversed and
remanded for further proceedings consistent with this opinion.
Costs assessed to appellee.
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JUDGES