[Cite as State v. Klein, 2013-Ohio-228.]


                                        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. CT2012-0016
RICHARD H. KLEIN, JR.

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. CR2011-0207


JUDGMENT:                                      Reversed and Remanded



DATE OF JUDGMENT ENTRY:                         January 25, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

ROBERT L. SMITH                                DAVID J. GRAEFF
ASSISTANT PROSECUTOR                           Post Office Box 1948
27 North Fifth Street, Suite 201               Westerville, Ohio 43086-1948
Post Office Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2012-0016                                               2

Wise, J.

      {¶1}   Appellant Richard H. Klein, Jr. appeals from his 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 Richard Klein and his wife, co-

defendant Kasey Klein, commenced a tent camping trip at Ellis Dam, Lock 11. They

brought 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. Rescue personnel eventually found A.C.’s body in the Muskingum

River. The coroner subsequently determined that A.C.’s death was caused by

accidental drowning. A.J. has never been found.

      {¶4}   On September 7, 2011, appellant and Kasey 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.

      {¶6}   At the trial, the State presented evidence that appellant and Kasey set up

their tent in an authorized camping area about twenty-five feet from the river’s edge.

There were no restrictions against children or pets in the campground. A.C. and A.J.

were known to be rambunctious, and a latch lock had been put on outside of their

bedroom at home. According to Kasey’s trial testimony, the boys were permitted to

stay up until about 9:00 PM on the evening of June 3, 2012. Kasey tucked them in their
Muskingum County, Case No. CT2012-0016                                                  3


blankets or sleeping bags and came back to the tent about an hour later, while

appellant fished a while longer. See Tr. at 456-457.

      {¶7}   The next morning, appellant woke Kasey up and told her the boys were

missing. Law enforcement and rescue officials were called to the scene. Appellant told

investigators that he awoke briefly at about first light on June 4, 2012, at which time

A.J. was fussing. He claimed he rubbed A.J.’s back to calm him down, and then went

back to sleep, but when he woke up a little later, both boys were gone. Kasey told law

enforcement officers that she had taken a prescription Xanax pill on Friday afternoon,

which tended to make her tired. No other evidence of alcohol or other drugs was

produced. However, appellant purportedly had worked from 5:50 AM to 4:30 PM on

Friday.

      {¶8}   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 about one mile

south of the dam. He was wearing a sleeper and had both shoes on. A.J.’s body was

never found, although at least one of his shoes was discovered. Evidence was

adduced that A.C., age three, had cerebral palsy and tired easily after walking about

two-hundred feet, and that he also had balance issues. Also, A.C.’s early childhood

teacher, Lisa Shannon, testified that A.C. needed assistance putting on his shoes due

to his weaknesses on his right side and his difficulty with balance.

      {¶9}   The jury found appellant guilty as charged on all counts. Kasey was also

found guilty as charged on all counts
Muskingum County, Case No. CT2012-0016                                              4


      {¶10} On February 21, 2012, following a sentencing hearing, appellant was

sentenced to a total prison term of twelve years, plus restitution.

      {¶11} On March 6, 2012, appellant filed a notice of appeal. He herein raises the

following five Assignments of Error:

      {¶12} “I. WHEN THE ATTORNEY FOR THE CO-DEFENDANT REPRESENTS,

AND PRESENTS ‘EVIDENCE’ TO THE JURY THAT THE DEFENDANT COMMITTED

PURPOSEFUL MURDER, WHEN THERE IS NO SUCH BASIS, LEGAL OR

FACTUAL, TO SUPPORT SUCH, THE RESULT IS A DEPRIVATION OF DUE

PROCESS, CONTRA THE FAIR TRIAL RIGHTS OF THE DEFENDANT UNDER THE

SIXTH AND FOURTEENTH AMENDMENTS TO CONSTITUTION.

      {¶13} “II.   WHERE THE VERDICT FORMS VIOLATE R.C. 2945.75, SAID

VERDICTS CONSTITUTE A FINDING OF THE LEAST DEGREE OF THE OFFENSE

AND THE SENTENCE NEEDS TO BE REDUCED.

      {¶14} “III. THE TRIAL COURT ERRED WHEN IT DENIED THE MOTION TO

SEVER, CONTRA THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION.

      {¶15} “IV.     THE TRIAL COURT ERRED WHEN IT ORDERED THE

DEFENDANT TO PAY RESTITUTION TO THE CO-DEFENDANT’S FATHER.

      {¶16} “V. THE TRIAL COURT ERRED WHEN IT DENIED A REQUEST TO

INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF RECKLESS

HOMICIDE.”
Muskingum County, Case No. CT2012-0016                                                  5


                                          I., III.

      {¶17} We will address appellant’s First and Third Assignments of Error together.

In his First Assignment of Error, appellant contends he was deprived of due process

and a fair trial based on the strategy and actions of his co-defendant’s trial counsel. In

his Third Assignment of Error, appellant contends the trial court erred in denying the

motion to sever the trial as between appellant and his co-defendant. We agree.

      {¶18} The essence of a defendant's right to due process in a criminal case is the

right to a fair opportunity to defend against the state's accusations.” See State v.

Swann, 119 Ohio St. 3d 552, 2008-Ohio-4837, ¶ 12, citing Chambers v. Mississippi

(1973), 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 312-313.

      {¶19} Crim.R. 14 reads as follows: “If it appears that a defendant or the state is

prejudiced by a joinder of offenses or of defendants in an indictment, information, or

complaint, or by such joinder for trial together of indictments, informations or

complaints, the court shall order an election or separate trial of counts, grant a

severance of defendants, or provide such other relief as justice requires. * * *”

      {¶20} In analyzing issues of severance, the general rule is that the defendant

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.

In State v. Thomas (1980), 61 Ohio St.2d 223, 225, 400 N.E.2d 401, the Ohio Supreme

Court noted: “Joinder of defendants and the avoidance of multiple trials is favored in

the law for many reasons. Joinder conserves judicial and prosecutorial time, lessens

the not inconsiderable expenses of multiple trials, diminishes inconvenience to
Muskingum County, Case No. CT2012-0016                                                6


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

before different juries.” Hence, “[j]oinder of defendants is the rule rather than the

exception and the burden is on the defendant to establish any resulting prejudice.”

State v. Fannin, Cuyahoga App. No. 80014, 2002-Ohio-4180 (citations omitted).

Furthermore, mutually antagonistic defenses are not prejudicial per se. State v.

Jacocks, Stark App.No. 2002CA00359, 2003-Ohio-6839, ¶ 92; Zafiro v. United States

(1993), 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (internal quotations

omitted).

      {¶21} Appellant emphasizes that he is not suggesting prosecutorial misconduct

in this case. See Appellant’s Brief at 13. However, appellant points out that during

Kasey’s defense testimony, she was asked about her review of some of the discovery

materials in the case:

      {¶22} “Q: And at that time did you read a summary of [Appellant] Richard’s

statement to the detectives on June 4th?

      {¶23} “A: Yes.

      {¶24} “Q: Okay. Did anything in there concern you?

      {¶25} “A: Yes.

      {¶26} “Q: And - - what concerned you?

      {¶27} “A: His statement about [A.J.’s] shoes.

      {¶28} “Q: Okay. Did --- the jury has heard the tape yesterday, but can you tell us

what Richard said about [A.J.’s] shoes that bothered you?

      {¶29} “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.
Muskingum County, Case No. CT2012-0016                                               7


      {¶30} “Q: Okay. Was there anything else in Richard’s statements to detectives

that concerned you?

      {¶31} “A: He said that he didn’t know if [A.C.] had his shoes on or not. And then

when they told him that he was found with his shoes he said then he must have had

them on - - or that he didn’t know. But I took them off of him.

      {¶32} “Q: Okay. Kasey, after you saw that did you make a decision with regard

to Richard?

      {¶33} “A: Yes.”

      {¶34} Tr. at 470-471.

      {¶35} At that point, appellant’s trial counsel entered an objection, which was

overruled. The questioning of Kasey then continued as follows:

      {¶36} “Q: When you got that discovery, Kasey, did --- did you make a decision

with respect to your husband?

      {¶37} “A: Yes.

      {¶38} “Q: And what was that, Kasey?

      {¶39} “A: I stopped having contact with him. I quit writing.

      {¶40} “Q: Okay. And you’ve not written him since?

      {¶41} “A: No.”

      {¶42} Tr. at 472.

      {¶43} During the subsequent cross-examination of Kasey, the prosecutor asked

her about the boys’ shoes and the tent door at the time the boys were put to bed.

Kasey answered in the affirmative that she “believe[d] [she] took the shoes back off.”
Muskingum County, Case No. CT2012-0016                                                   8


Tr. at 497. She also stated that she had “zipped up” the tent door. Tr. at 498. The

following exchange also occurred:

      {¶44} “[Prosecutor] Q: So you feel Richard lied about this issue about the shoes,

for what that’s worth?

      {¶45} “A: Yes.”

      {¶46} Tr. at 501.

      {¶47} After all the witnesses had testified at trial, Kasey’s trial counsel requested

jury instructions, for Kasey’s defense, on the issue of an independent intervening act of

causation, arguing outside the presence of the jury that “even if [Kasey] were reckless,

which we do not concede, we think there’s [a] very good argument against that, but

[Appellant] 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 also stated, again outside of the presence of the jury: “Now, if Mr.

Klein murdered these boys in the middle of the night when my client slept, and there’s

a clear inference for that, then that means she could not have reason to foresee that.

This is not *** a situation of mutually antagonistic defenses.” Tr. at 546.

      {¶48} Kasey’s trial counsel’s closing arguments to the jury included the following

commentary:

      {¶49} “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 believe that this boy would have been able to take
Muskingum County, Case No. CT2012-0016                                                 9


that shoe (indicating) and put his foot with this sleeper on into that shoe like that,

himself in the dark in that tent, standing up to put it on his right foot? Does anybody

believe he could have done that without falling down? These shoes tell the story of this

case.

        {¶50} “Now, Kasey was rather matter of fact about a very simple fact in this

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. What kid sleeps in his shoes. [A.C.]

certainly didn’t, because Lisa [Shannon] said he kicked them off. And Lisa spent a lot

of time with him every day, all day.

        {¶51} “* * *

        {¶52} “I believe that when asked about how the boys were dressed when they

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 have kicked one off in the middle of the night.

That’s interesting. Why would he offer that?

        {¶53} “Well, you remember the testimony was that he was there when they were

doing the - - not the inventory, but the - - they were looking for an item to get a scent

from the boys and Mike said that they found one shoe in the tent. Obviously, it wasn’t

[A.C.’s] shoe or one of his shoes, because his shoes were found on his body in the

river. So the inference is that it would have been one of [A.J.’s] shoes. Now, that

wasn’t collected. It wasn’t inventoried, cataloged, itemized, or otherwise described, but

it was obviously a child’s shoe.
Muskingum County, Case No. CT2012-0016                                                   10


      {¶54} “Here’s what happened. Mr. Klein realized that and he realized that it had

to be explained. That’s why he offered that explanation on his own without prompting

in that interview. This is what we call in the law consciousness of guilt. Shakespere’s

[sic] old saying. He protested too much.”

      {¶55} Tr. at 571-573.

      {¶56} In its response brief, the State reiterates that both appellant and Kasey

were tried for involuntary manslaughter, not murder. The State also notes that the

prosecutor reminded the court and/or the jury at least twice during the trial that he did

not believe either defendant committed murder. See Tr. at 546, 615. In essence, the

State maintains that reasonable jurors would not have given credence to Kasey’s

theory of the case.

      {¶57} Taken in its entirety, we presently find the joint trial of appellant and

Kasey, under the circumstances that developed as the case progressed, prejudiced

appellant’s defense with the insinuation that he murdered the two victims to such

extent that a new trial is warranted with the co-defendants severed. In reviewing this

matter, we recognize that the trial court was required to make its decision regarding

severance of defendants at the beginning of the trial. We note Kasey’s trial counsel, at

the pre-trial motion hearing, somewhat vaguely 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.   However, Kasey’s trial counsel 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.

      {¶58} Appellant's First and Third Assignments of Error are therefore sustained.
Muskingum County, Case No. CT2012-0016                                        11


                                        II., IV., V.

      {¶59} Based upon our above conclusions, we find the issues raised in the

Second, Fourth, and Fifth Assignments of Error are moot.

      {¶60} 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.


By: Wise, J.

Farmer, P. J., and

Edwards, J., concur.


                                          ___________________________________



                                          ___________________________________



                                          ___________________________________

                                                           JUDGES

JWW/d 1221
Muskingum County, Case No. CT2012-0016                                       12


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
RICHARD H. KLEIN, JR.                       :
                                            :
       Defendant-Appellant                  :         Case No. CT2012-0016




       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
