GALLIPOLIS — A recent judgement handed down by the Fourth District Court of Appeals led to a dismissal of a charge of murder in a case resolved in 2010 in the Common Pleas Court of Gallia County.

The decision and judgement entry filed in the Fourth Appellate District of the Court of Appeals of Ohio and signed by Fourth District Appellate Judge Matthew W. McFarland discusses an appeal filed in the case of the State of Ohio versus Kansas D. Grube.

Grube, 27, was found guilty, after a three day jury trial on October 1, 2010, in the common pleas court of aggravated murder and endangering children and was subsequently sentenced to a life sentence without the possibility of parole for aggravated murder. An eight-year sentence was also imposed for the charge of endangering children.

She is currently serving out her sentence at the Ohio Reformatory for Women.

The defendant was charged following the death of her infant son who was found unresponsive by emergency officials on the night of February 12, 2010, at the Grube residence on Ohio 218.

The two-and-half-month old child was initially thought to have suffered from Sudden Infant Death Syndrome by emergency officials, but an autopsy performed by the Montgomery County Coroner’s Office revealed that the infant had a fractured skull — injuries that, according to medical experts, could have only been sustained under tremendous force.

Grube was later indicted by a grand jury of count one, aggravated murder; count two, murder; and count three, endangering children.

Following the trial, the jury found Grube guilty of counts one and three, with count two — murder — being not applicable, according to the trial court, due to it being a lesser-included offense of count one — aggravated murder.

According to the appeals court however, the common pleas court should have addressed the issue of count two — a fact that would not allow the higher court to address the defendant’s initial appeal in this case.

“Having reviewed the record, we find the trial court failed to dispose of the second count charging Grube with murder, resulting in the lack of a final, appealable order for us to review. Accordingly, we dismiss Grube’s appeal,” the entry reads.

Citing previous cases decided by the appeals courts of Ohio, the entry states that, within a criminal matter, if the trial court fails to address all of the criminal charges against the defendant, the order of the court is not final and is not appealable.

Judge Roger L. Kline dissented in this decision of the appeals court, however, and, in his opinion, states that the Fifth Amendment forbids punishment for a great and lesser included offense, as is the case in this matter.

Murder is a lesser-included offense of aggravated murder according to the Ohio Revised Code, and, in his opinion, Kline writes, “I believe that Count 2 was resolved in the following manner. After the jury returned its verdict on Count 1, the trial court stated the following: ‘Having found the defendant guilty of Count 1, Count 2 is inapplicable, or not applicable I should say.’ … In other words, the trial court acknowledged that Grube could not be convicted of Count 2 because it is a lesser-included offense of Count 1. Based on this acknowledgement, I would find that all of the counts against Grube have been resolved.”

Judge William H. Harsha also addresses this issue within the entry and writes, “a court record speaks through its journal entries, not its oral pronouncements.” According to Harsha, the issue of count two in this case was never addressed in the common pleas court’s journal.

Due to this, the Fourth District Appeals Court dismissed the appeal filed by Ohio state public defenders on behalf of Grube.

In her appeal, the defendant wished to address the allegations that there was insufficient evidence to convict her of aggravated murder, that the trial court erred when it did not instruct the jury on lesser offenses of reckless homicide and voluntary manslaughter, that the court erred when it failed to merge the counts of aggravated murder and endangering children for sentencing purposes and that the trial court provided ineffective assistance of counsel.

In an entry filed last week and signed by Gallia County Common Pleas Judge D. Dean Evans count two of the indictment, murder, in the 2010 case against Grube was dismissed by the court.

The entry reads, “The Court finds that it should dismiss Count Two, without prejudice in order that this matter may be considered a final appealable order.”