IN THE SUPREME COURT OF OHIO

STATE OF OH1O,

. S.Ct. Case No.Appellant,

VS.

KASEY L. KLEIN,

Appellee,

On Appeal from the MuskingumCounty Court of Appeals

Appellate Case No. CT2011-0206

MEMORANDUM OF APPELLANT, STATE OF OHIOIN SUPPORT OF JURISDICTION

ROBERT L. SMITH (0039297)Assistant Prosecuting Attorney27 North Fifth StreetZanesville, OH 43701TeI:(740) 455-7123Fax:(740) 455-7141Attorney for Plaintiff/Appellant

ERIC J. ALLEN (0073384)713 Scauth Front StreetColumbias, OH 43206Tel: (6'14) 443-4840Attorney for Defendant /Appellee 1f^ 'e„.̂ 013a f^` ^

5F_^m^^^ OF t;O!!RT^^ >'^;_ ^^r^ ^^^^^ OF OHln

TABLE OF CONTENTS

Table of Contents .. ... ... ... ... . .. ... ... ... ... ... ... ... ... . .. ... ... ... ... ... ... .. .. .......

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... ii

Explanation of why this Case is of Public or Great General Interest and Involvesa Substantial Constitutional Question .............................................. . ........1

Statement of the Case and Facts..... ...... ...... .......... ....... ,................. ,......4

Argument in Support of Appellant's Proposition of Law ...................................7

Proposition of Law No. 1 ...... ...... ... ... ....... ... ,. .. ... ...... ... ... ...... ... ... ... ...7

A PARTY SHOULD NOT PERMITTED TO TAKE ADVANTAGE OF AN- THAT 1 M LF [SHE HERSELF] INV1T I C THE

T RiA L COURT TO

Conclusion.. . ...... .. ................................................... ... ......................... 15

Certificate of Service... .......................... ...... .... .... ... . . ... .. . ... ... . ... ...:. . ^ 16

Appendix: Appx. Paqe

Opinion of the Muskingum County Court of Appeals

Judgment Entry of the Muskingum County Court of Appeals A6

i

TABLE OF AUTHORITIES

CASE LAW

Artz Lincoln-Mercury Inc. v. Ford Motor Co. (1986) 28 Ohio St. 3d 20,28 Ohio B. Rep. 83, 502 N.E.2d 590 ....................................................

State v. Campbell 90 Ohio St.3d 320, 324, 2000 Ohio 183, 738 N.E.2d 1178,1188, rehearing denied (2001), 91 Ohio St. 3d 1433, 741 N.E. 896, certioraridenied (2001), 533 U.S. 956, 121 S. Ct. 2606, 150 L. Ed. 2d 762, quotin0 Statev. Kollar (1915), 93 Ohio St. 89, 91, 112 N.E. 196, 197, 13 Ohio L. Rep.455 ................ ..................... .. ...... .................. ............ ................... 12,14

State v. Coley (2001), 93 Ohio St.3d 253, 259, 2001-Ohio-1340 .. .... ... ... ... . a.,.. 1.8

State v. Doss 8{" Dist. No. 84433, 2005 Ohio 775, Para 5, quoting State ex re.l.Kline v. Caroll 96 Ohio St.3d 404, 2002 Ohio 4849, 775 N.E.2d 517 .... .......... . 13

State ex rel. The V.Cos. v. Marshali 81 Ohio St.3d 467, 471, 1998 Ohio 329.692 N:E.2d 198, 202.. ....:...... ........................ ..................... .. ... . . 14

State v. Thomas 61980), 61 Ohio St.2d 223, 225. 400, N.E,2d 401 .................7

State v, Torres 66 Ohio St.2d 340, 421 N.E.2d 1288 :....................................B,

State v. West 2013 Ohio 96, 2013 Ohio App. LEXIS 65 ................................12

United States v. Jernigan 341 F.3d 1273, 1290 (7 th Cir. 2003)........... .............13

STATUTES

Ohio Revised Code Section 2903.04(A)... .... ............ ......... ... ... .................. 4,5

Ohio Revised Code Section 2919.22(A)... . .. ... ... .. . ... .... .......... .. .. ^ ... ... ...4,5

Ohio Revised Code Section 2913.5l..... ................... ...........................:...13

COURT RULES

Ohio Rules of Criminal Procedure 14.............. ...... ........ .,.... .. ..7,8

ii

ALIAN[

_VES A SUBSTANTIAL CONS:SENTS AN ISSUE OF GREAIGENERAL INTEREST

ALOR

The cause, and how it is resolved by this Court, will have an impact upon

every criminal proceeding in this State. This cause involved the felony tria5 of a

mother and father who were accused of recklessly causing the death of two srriaii

.children. Both defendants asserted their constitutional right to a jury triai. Prior

to the trial the step-father sought severance of these trials. After the mother

(through coorasei) represented that the defenses were not mutually antagonistic,

the trial court denied the severance motion and ordered joint trial. However, at

tr-iai, mother asserted an intervening event absoiving her of legal responsibility for

the deaths of her children---intentional acts of her husband. By the time this

defense had been unveiled, jeopardy had attached. and the trial couxt was

rielpless to "unring the bell." While the step-father was blindsided by the

allegation, and left scrambling to defend himself against allegations m'ore

egregious than those alleged by the State, the mother was able to present her

defense to the Jury. Both parties were convicted of the reckless conduct for

which they were accused. On appeal, the step-father, not unexpectediy, raised

the issue of severance and its consequential violation of his constitutionai rights,

the mother only alleged issues of "manifest weight" and "insufficient evidence."

Not unexpectedly, the Fifth District Court of Appeals remanded the matter fok.

1

new trial based upon its conclusion that the trial of the two defendants should

have been severed. The Court did not necessarily find that the trial court erred in

its initial severance ruling but found that the error occurred during trial due to the

nature of the defense presented by the mother.

However, the appellate court also granted the mother a new trial as weii-

not on the merits of issues raised-but, as a consequence of the.defense she

presented.

The State asserts that the mother was not deprived of the opportunity to

present a defense. She presented the defense that she wanted to present. By

failing to advise the trial court prior to the commencement of the trial of her

intention to present an antagonistic defense, she. "invited," if not created the

ArrUr. That defense failed and the mother was convicted. She should not be

;_ewarded with a second opportunity to present her case to a jury when the

defense that she presented undermined her co-defendant`s right to a fair triai'-

not hers...

Therein lays the great public interest in this matter. Joint trials are

preferred for reasons that are well documented. Severance is required only

where defendants intend to present antagonistic defenses. When a criminal

defendant misleads the trial court as to his or her intentions at trial with respect to

the presentation of an antagonistic defense and then presents such a defense

which biames the crime on the other guy, he or she should not be rewarded with

a second chance with a new jury that doesn't work.

The implications of the appellate court ruling are immense. Crimina9

2

defense attorneys and defendants alike who read these two opinioras will see that

not only is there no penalty for misrepresenting their trial strategy at pretrial

hearings on severance, but, in fact, the reward for such conduct is a second trial

in the event the first defense doesn't work. The State is certain that the appellate

court did nct intend to set such a precedent but such is the consequence, if left

unGorrected.

3,

STATEMENT OF THE CASE

On September 9, 2011, Appellee Kasey Klein and her husband, Richard

Klein, were" indicted by the Muskingum County Grand Jury upon two counts of

Endangering Children in violation of Ohio Revised Code §2919.22(A), felonies of

the third degree, and upon two counts of Involuntary Manslaughter in violation of

R.C. §2903.04(A), felonies of the first degree in connection with the deaths of her

minor children. These charges stemmed from an incident which occurred on

June 3, 2011, when the Appellee, Kasey L. Klein, and her husband, Richard

Klein, took her two children, ages two and three, on a weekend trip to Ellis Dam

Campground and set up their campsite in close proximity to a dam and sp,iilway

or th.e Muskingum River. When the parents awoke in the morning, the boys

wre missing. The body of one child was found face down in the river, just.below

the dam. The body of the other child was never recovered.

Defendant, Richard Klein, filed a Motion for Severance. The State, as well

as Appellee, Kasey Klein, opposed this motion. The Trial Court, after an oral

hearing in which it concluded that the allegations were that both participated in a

commori schenie or pian; andEor the same course of criminal conduct, and after

finding that neither Defendant had established that he or she would be prejudiced

by joinder, denied the Motion for Severance.

At trial, the parties were represented by separate counsel and presented

separate defenses. Both parties testified. While Richard Klein's defense

centered on his contention that he had not been reckless with respect to the care

4

of the children, Appellee asserted that the deaths of the children were the resuit

of intentional actions by Richard Klein. The State asserted that both parties, by

their acts and omissions, had created a substantial risk to the health or safety of

the children by violating their respective duty of care, protection, and support.

The jury returned verdicts finding both Defendants guilty of two (2) counts

of Endangering Children in violation of R.C. §2919.22(A), and of two (2) cot.ints of

Involuntary Manslaughter in violation of R.C. §2903.04(A).

Defendant Richard Klein filed a Motion to Set Aside Verdicts and for

Directed Verdicts of Acquittal of Appellee, Kasey Klein. Prior to sentencing, the

Trial Court found that Counts One and Three should merge and found that

Counts Two and Four should,merge. After he State elected to proceed under

Counts Three and Four, the Trial Court ordered that each Defendant serve a

prison term of six (6) years upon each count and that those counts be°served.;

consecutive to one another for an aggregate prison term of twelve (12) years.

Both Defendants appealed. In her appeal, Appellee, Kasey Klein, alleged

that the State had failed to produce sufficient evidence to support the convictions

and that the convictions were against the manifest weight of the evidence, in an

Opinion dated January 25, 2013, the Fifth District Court of Appeals remanded the

Appellee's case for retrial without considering the merits of the issues assigned

on appeal, reasoning that the remedies for a "manifest weight" challenge and

"failure to sever challenge," although not raised by this Appellee, were the same

as the remedy for failure to sever. It is, from this order, that the State of Ohio

5

appeals.

6

ARGUMENT IN OPPOSITION TO JURISDICTION

Proposition of Law No. 1

A PARTY S. _ .OULD NOT BE PERNU'ITE TO T.AKE' ADVANTAGE OF ANI ROR T11AT HE .t..I.I_ SELt° IS:Fti+' .t-tE. . S:EI..dF].t.NVI.TEi) OR. f.N. 11CE.t) 'I IIE

17. IA6-+ C. URY1'T.. .M.AKE

The Appellee was not prejudiced by the joint trial of this case and should

not be rewarded with a new trial for engaging in trial tactics which were

unsuccessful in gaining an acquittal but, which were successful in depriving her

co-defendant of a fair trial.

Joint trials are favored under the law. This Court has held in State v.

Thomas (19 80), 61 Ohio St.2d 223, 225, 400 N.E.2d 401, that: "Joinder of .

defendants and the avoidance of multiple trials is favored in the iaw fdr many

reasor,s. Joinder conserves judiciai and prosecutorial time, iessens the not

inconsiderable expenses of multipie trials, diminishes inconvenience ta

witnesses, and minimizes the possibility of incongruous results in successive .

trials before different juries." However, the law also recognizes that joint triais

are not always possible or preferable and provides a mechanism to sever the

trials of co-defendants.

pertinent part:

Ohio Rule of Criminal Procedure 14 provides, in

If it appears that a defendant or the state is prejudiced by a joinderof offenses or of defendants in an indictment, information, or complaint, orby such joinder for trial together of indictments; informations, orcomplaints, the court shall order an election or separate trial of counts,grant a severance of defendants, or provide such other relief as justice

requires.

In analyzing issues of severance, the general rule is that the defendant

7

bears the burden under Crim.R. 14 to prove prejudice and that the trial court

abused its discretion in denying severance. See State v. Coley (2001), 93 Ohio

St.3d 253, 259, 2001-Ohio-1340, citing State v. Torres, 66 Ohio St.2d 340, 421

N.E.2d 1288, syllabus.

ln the trial of this case, the co-defendant utilized Criminal Rule 14 to seek

a severance of these cases. However, at an oral hearing on this motion the

State assured the trial court that the evidence that it intended to introduce at the

time of trial applied equally to each defendant. At the same hearing, the trial

court inquired of counsel for the Appellee herein. Somewhat vaguely Appellee's

Vial counsel told the trial court that it "may or may not be the case" that "both

defendants are in the same boat." Tr. January 17, 2012, at 9. Appellee's trial

counsel also assured the court at that time that he saw "no reason to separate"

the trials. Id. at 10. It was in this context that the trial judge chose to conduct a

joint trial.

However, at trial, Appellee unveiled what became an antagonistic

defense. During her direct examination Appellee and her counsel engaged in the

following dialog:

"Q: And at that time did you read a summary of [Appeliant] Richard'sstatement to the detectives on June 4th?

"A: Yes.

"Q: Okay. Did anything in there concern you?

"A: Yes.

"Q: And - - what concerned you?

8

"A: His statement about [A.J.'s] shoes.

"Q: Okay. Did --- the jury has heard the tape yesterday, but can you tell uswhat Richard said about [A.J.'s] shoes that bothered you?

"A: He said that [A.J.] had his shoes on and he must have kicked one off.But [A.J.] didn't have his shoes on. He took them off before he went to

bed.

"Q: Okay. Was there anything else in Richard's statements to detectivesthat concerned you?

"A: He said that he didn't know if [A.C.] had his shoes on or not. And thenwhen they told him that he was found with his shoes he said then he musthave had them on - - or that he didn't know. But I took them off of him.

"Q: Okay. Kasey, after you saw that did you make a decision with regard

to Richard?

A: Yes." Tr. at 470-471.

At that point, Richard Klein's trial counsel entered an objection, which was

overruled. The questioning of Kasey then continued as follows:

"Q: When you got that discovery, Kasey, did --- did you make a decisionwith respect to your husband?

"A: Yes.

"Q: And what was that, Kasey?

"A: I stopped having contact with him. I quit wnting.

"Q: Okay. And you've not written him since?

"A: No." Tr, at 472.

During the subsequent cross-examination of Appellee, the prosecutor

asked her about the boys' shoes and the tent door at the time the boys were put

9

to bed. AppelOee answered in the affirmative that she "believe[d] [she] took the

shoes back off." Tr. at 497. She also stated that she had "zipped up" the tent

door. Tr. at 498. The following exchange also occurred:

"[Prosecutor] Q: So you feel Richard lied about this issue about the shoes,for what that's worth?

"A: Yes." Tr. at 501.

After all the witnesses had testified at trial, Appellee's trial counsel

requested jury instructions, for her defense, on the issue of an independent

intervening act of causation, arguing outside the presence of the jury that "even if

[Appellee] were reckless, which we do not concede, we think there's [a] very

good argument against that, but Mr. Klein is the only other person in that tent

who could have gotten the boys out of that tent at 500 feet - almost 500 feet

down the river." Tr, at 531. However, the trial court denied an instruction on

"intervening act." See Tr. at 540.

Kasey's trial counsel's closing arguments to the jury included the

following commentary:

"Does anybody believe, ladies and gentlemen, that this three-year-old boy in a dark tent at night would have been able to do this (indicating)?Open this up. Well, look what happened here when you open that up.Look at that. This velcro strap comes out. Does anybody really believethat this boy would have been able to take that shoe (indicating) and puthis foot with this sleeper on into that shoe like that, himself in the dark inthat tent, standing up to put it on his right foot? Does anybody believe hecould have done that without failing down? These shoes tell the story of

this case.

"Now, Kasey was rather matter of fact about a very simple fact inthis case, ladies and gentlemen, when she was interviewed by Mike Ryan;when I put the boys to bed I took their shoes off. No question about that,because that's what happened and that's what anybody would do: Whatkid sleeps in his shoes. [A,O.] certainly didn't, because Lisa [Shannon]

10

said he kicked them off. And Lisa spent a lot of time with him every day, all

day.«* * *

"I believe that when asked about how the boys were dressed whenthey went to bed, Mr. Klein said he had - - said they had on their sleepers;and then he made a point of offering that [A.J.] had his shoes on earlier --or he had his shoes on but must have kicked one on -- or must havekicked one off in the middle of the night. That's interesting. Why would heoffer that?

"Well, you remember the testimony was that he was there when they weredoing the - - not the inventory, but the - - they were looking for an itern toget a scent from the boys and Mike said that they found one shoe in thetent. Obviously, it wasn't [A.C.'s] shoe or one of his shoes, because hisshoes were found on his body in the river. So the inference is that it wouldhave been one of [A.J.'s] shoes. Now, that wasn't collected. It wasn'tinventoried, catalogued, itemized, or otherwise described, but it wasobviously a child's shoe.

"Here's what happened. Mr. Klein realized that and he realized that it hadto be expiained. That's why he offered that explanation on his own withoutprompting :in that interview. This is what we call in the law consciousnessof guiit. Shakespere's [sic] old saying. He protested too much." Tr:.at.571-573.

Upon review of these portions of the trial transcript, the Fifth District Court

of Appeals, in its opinion in the codefendant's case, offered this summation:

Taken in its entirety, we presently find the joint trial of appellant[Riohard Klein] and Kasey [Appellee, herein], under the circumstances thatdeveloped as the case progressed, prejudiced appellant's defense withthe insinuation that he murdered the two victims to such extent that a newtrial is warranted with the co-defendants severed. in reviewing this matter,we recognize that the trial court was required to make its decisionregarding severance of defendants at the beginning of the trial. We noteKasey's trial counsel, at the pre-trial motion hearing, somewhat vaguelytold the trial court that it "may or may not be the case" that "bothdefendants are in the same boat." Tr. January 17, 2012, at 9. However,Kasey's trial counsel assured the court at that time that he saw "no reasonto separate" the trials. Id. at 10. It was in this context that the trial judge

chose to conduct a joint trial.

With that, the Court sustained Richard Klein's assignments of error and

11

remanded Richard Klein's case to the trial court. The opinion in Appellee's case

is not so well reasoned. In its opinion in Case No CT2012-0021; the Court wrote:

As noted in our recitation of facts, Appellant Kasey's co-defendant,Richard H. Klein, Jr., brought a separate appeal to this Court. In, thatcase; this Court has concluded that the joint trial of Richard and Kaseywas an abuse of discretion and that severance of the co-defendants waswarranted on due process grounds. Based on said reversal in Richard'scase, we find the proper remedy in the within appeal is to also reverse fora new trial as to Kasey.

By awarding Appellee herein a new trial without reviewing the merits of

her case, the appellate court, has rewarded Appellee for creating the mess in the

trial court. This Court has held that the doctrine of invited error holds that a

`Fiigant may not "take advantage of an error which he himself invited or induced'."

7 '-incoin-Mercury,lnc v..For^ Motor Co. (1986), 28 Ohio St. 3d 20, 23

^^. Rep. 63, 502 N.E.2d 590; paragraph one of the syllabus. Fuh:hermor-;

U ., Cou€l has stated that invited error occurs when defense counseb "was

actively responsible for the trial court's error" or "when a party has asked t!° ^:r

court to taku some action later ciairned to be erroneous." State v. Cr^ll, 90

Ohio St:3d 320, 324, 2000 Ohio 183, 738 N.E.2d 1178, 1188, rehearing denied

(200-1), 91 Ohio St. 3d 1433, 74/i N.E-2d 896, certiorari denied (2001), ^^^ US-

956; 121 S. Ct. 2606, 150 L. Ed. 2d 762, quoting 5tate v. Kollar (1915), 93 Ohio

St. 89, 91, 11 N. E. 196, 197, 13 Ohio L. Rep. 455.

Ohio Appellate Courts have applied the doctrine of "invited error" in the

context of joinder/severance. In State v. West, 2013 Ohio 96, 2013 Ohio App.

LEXIS 65, the defendant was convicted of illegal manufacture of drugs or

cultivation of marijuana, drug traffickirtg, dr!.}g, Possession, and possession of

12

criminal tools and sentenced to 16 years in prisora following a jury trial in which

he was tried along with his brotherdco-defendant. In his second assignment of

error, West contended the trial court erred by failing to sever the defendants for

trial. The record reflected that West initially moved the court for separate trials;

however and after conferring with counsai and his co-defandant's counsel, a

tactical decision was made to try the cases together: The Eighth District Court of

Appeals found that when he withdrew his motion for separate triais, West invited

the error now complained of on appeal. Under the invited error doctrine, °°a party

is not entitled to take advantage of an error that he himself invited or induced."

Sta'e v. Doss, 8th Dist. No. 84433, 2005 Ohio 775, 5, quoting atate(^kx ra ► :.

Carroii, '96 Ohio St.3d 404, 2002 Ohio 4849, 775 KE2d 51 7: A

_ . .. , a ant .m. may ,not make an affirrhative and apparent stratag€€:r. decision at triai

anu then eomplain on appeal that the result of that decision constitutes r^^^isibie

errdr.,°' Doss at T, 7, quoting, Ulnited State§ w. Jerr^i^ar^; 341 F:3d 1273, 1290 (7th

Gir.2003). With that, the appellate coLirt overruled West's assignment of error.

Simiiarly, following a jury trial, the Cuyahoga County Court of Common

Pleas (Ohio) convicted the defendant, in two joined. cases, of carrying a

concealed Weapon, recaiving stolen property, and two cou'nts of having a

weapon while Linder a disability. He was sentenced to t%^^o years in prison.

®efendant appeaied and complained that his attorrtey was ineffective because

he failed to object to the state's motioii for joinder. A9thoug h the state's motion

ior joinder was unopposed, t^e Eighth District Court of Appeals found that the

defendant was not prejudicad. The court noted that the defendant's attorney.

13

attempted to bifurcate (try to the bench) the case of having weapons under

disabiiit^.3 and the. having weapons under disability charge in the detendantss

second case; however, the defendant refused to agree to the bifurcation. After a

lengthy discussion between the court and the defendant, the defendant himself

decided that he wanted the jury to hear everything. The Eighth District Court

fcund that any error in not opposing the motion for joinder was tr,erefore invited

-error. In reaching this conclusion, the appe(late'court cited the opiriions of this

Court:

"The invited error doctrine provides that "a party will not be perr -itted totake advantage of an error that he hirnself invited or induced the courtt... ake." ; S t a t e ex rel. The V Cos v. Marshall, 81 Ohio St:3d 44^71,

.,^HOh;c 329, 692 N.E2d 198, 202. The Ohio Supreme.. ; ;assEat^d that invited error occurs when defense counsci "was yrespcnsihle for the trial coLrrt's error" rir "whena party has a.sKedto take some aciion later clairned to be errorieous." State v. C&r c."-fOhioSf;3d 320, 324, 2000 Ohic 'i83y 738N.E.2d1178, 1188,denied (2001}; 91 Ohio St. 3d 1433, 741 Rl.E2d 596, certioran di: e-I(2001), 533 tJ:S. 956, 121 S, Ct. 2605, 1 50 L Ed. 2d 762; quratir^^ ^^ e -1^ollar (1915), 93 Ohio St. 89; 91, 112 N.E. 196, 197, 13 Ohio L. 455..

The State asserts that, by opposing co-defendant's motion to sever the

trial of these cases; by representing to thc court that both defendant's were "in

the same boat" and by presenting a defense that accused the co-defendant of a

purposeful killing, the Appellee herein created and invited error at trial. While the

State agrees that her co--Defendant should not suffer the consequences of these

tactics; under the doctrine articulated by this Court in Stte ex re!. The V Cos, vo

Ma.rshaii, 81 Ohio St.3d 467, 471, 1998 Ohio 329, 692 N.E.2d 198, 202, <xT'he

invited error doctrine provides thet'°a party wi#' not be permitted to take

14

advantage of" an error that he himself invited or induced the trial court to rrrake:"

To permit the Apppiiee herein be awarded [rewarded] a new trial wili create a

conflict with the Eighth Appeilate District's application of the invited error doctrine

in the context of severance and joinder, and will encourage future criminal

iitigants to sandbag trial courts with i-espect to trial tactics in order to gain an

additional opportunity should the contemplated defense not be successfui in

winning an asquittal:

CONCLUSION

For the reasons set forth above, this case involves matters of pubiic and

great general interest and presents a substantial constitutional question.

Appellant, State of Ohio respectfully requests that this Court accept jurisd%ction

over this case in brdor that the important issues presented in this memorandum

will be reviewed on the merits.

Respectfully submitted,

ROBERTAssistant

ITH (0039297)cuting Attorney

15

CERTIFICATE OF SERVICE

The Undersigned hereby certifies that a copy of the foregoing Brief inOpposition to Jurisdiction was served upon ERIC J. ALLEN, Attorney for

Defendant iAppellee, KASEY L. KLEIN, at 713 South Front Street, Columbus,

OH 43206, by First Class U. S. Mail on Monday, Marc, 2013.

ROBE ^L^'^MIs ^i (0039297)Assist t P^osecuting AttorneyMuski um County, Ohio

1Fifth Street, Suite 20127 Nor hZanesville, Ohio 43701Telephone: 740-455-7123Facsimile: 740-455-7141

16

Pp^̂ :. F9i...F-D

FIFTH rIS^'RICTCC3^.b^d'^` ^^ APPFA9 R

COURT OF APPEALSMUSKINGUM COUNTY, OHIOFIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vs-

KASEY L. KLEIN

Defendant-Appellant

CHARACTER OF PROCEEDING

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee

MICHAEL HADDOXPROSECUTING ATTORNEYROBERT L. SMITHASSISTANT PROSECUTOR27 North Fifth StreetZanesville, Ohio 43701

JAN 2 5 2013

MUMNO ».,€^^^ ^^OUN'FY, OHIO'^DD, A. BIQKLE, CLERK

JUDGES:Hon. Sheila G. Farmer, P. J.Hon. John W. Wise, J.Hon. Julie A. Edwards, J.

Case No. CT2012-0021

OPINION

(

Criminal Appeal from the Court of CommonPleas, Case No. CR2011-0206

Reversed and Remanded

For Defendant-Appellant

ERIC J. ALLENTHE LAW OFFICE OFERIC J. ALLEN, LTD713 South Front StreetColumbus, Ohio 43206

M-

Muskingum County, Cas"o. 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.

{12} 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.

{13} 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.

{14} 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.

{15} Appellant thereafter appeared in court and entered pleas of not guilty. The

case proceeded to a jury trial commencing January 30, 2012.

Pa

^lluskingum County, CascriVo. CT2012-0021 3

{16} 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.

{18} On March 21, 2012, appellant filed a notice of appeal. She herein raises

the foliowing two Assignments of Error:

{19} "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.

{112} 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, Cas"o. 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 0.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.

M

Muskingum County, Casc-Ao. CT2012-0021 5

{¶14} We therefore.will not address the merits of the two assigned errors.

{115} 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.

JWW/d 0108

n^

JUDGES

^-^

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIOFIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vs-

KASEY L. KLEIN

Defendant-Appellant

FId^EDFCFTi t c.^&STRICq

^OURT ^..?F APPEALS

JAN 2 5 2013

^^^^^^^QUN;b;: UN"3'1'n OHtC)TOD^' A. a'iOKLE,. CLERK

JUDGMENT ENTRY

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.

JUDGES

NO