[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
