State v. Kimes

2022 Ohio 2759

• Court: Ohio Court of Appeals
• Decided: August 8, 2022
• Docket: 21 CAA 10 0055
• Status: Published

Opinion

[Cite as State v. Kimes, 2022-Ohio-2759.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Earle E. Wise, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 21 CAA 10 0055 DAVID W. KIMES, II. : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal apppeal from the Delaware County Court of Common Pleas, Case No. 21 CR I 02 0102

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 8, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL WILLIAM T. CRAMER Delaware Prosecutor 470 Olde Worthington Road, Ste 200 BY: JACQUELINE JAEL RAPIER Worthington, OH 43082 Assistant Prosecutor 145 N. Union Street, 3rd Floor Delaware, OH 43015 Delaware County, Case No. 21 CAA 10 0055 2

Gwin, J.,

{¶1} Appellant David W. Kimes, II appeals his sentence from the Delaware

County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} In February of 2021, appellant was indicted on the following counts: three

counts of illegal use of a minor in nudity-oriented material, in violation of R.C.

2907.323(A)(1), felonies of the second degree; nine counts of illegal use of a minor in

nudity-oriented material, in violation of R.C. 2907.323(A)(3), felonies of the fifth degree;

three counts of pandering sexually oriented matter involving a minor, in violation of R.C.

2907.322(A)(1), felonies of the second degree, and three counts of pandering sexually

oriented matter involving a minor, in violation of R.C. 2907.322(A)(5), felonies of the fourth

degree.

{¶3} Pursuant to a plea agreement, appellant pled guilty to Counts 1, 3, 7, 11,

13, 15, 16, 17, and 18, while the State of Ohio dismissed Counts 2, 4, 5, 6, 8, 9, 10, 12,

and 14. As part of the plea agreement, the parties agreed to a recommend a minimum

indefinite prison term of 8 to 30 years, consecutive to the prison terms imposed in two

separate 2019 cases from Delaware County.

{¶4} The trial court held a change of plea and sentencing hearing on October 5,

2021. At the plea hearing, appellant asked his counsel to give a brief statement of facts

as to the charges. Appellant had a Google account that contained various images that

would be classified as child pornography. Google identified the images, and reported

them to the Delaware County Police Department. The police department traced the

images back to a phone in appellant’s name. Delaware County, Case No. 21 CAA 10 0055 3

{¶5} Counsel for the State of Ohio also reviewed the facts surrounding the

indictment in this case. From August 1, 2019 to November 1, 2019, appellant possessed

images of child pornography on his phone. There were hundreds of images of explicit

and nudity-oriented material involving children. The victims ranged in age from two years

old to seventeen years old. This occurred while appellant was on bond in a previous case

for similar activity. In Counts 1, 3, and 7, the victims were identified as family members

of appellant, and appellant’s arms and hands can be seen in these photographs physically

manipulating the clothing of the minor child to expose the child’s genitalia.

{¶6} Counsel for the State of Ohio also referenced the sentencing memorandum

it filed on October 4, 2021. In the memorandum, appellee argued any prison sentence

less than thirty years would demean the seriousness of the conduct because: appellant

knew several of the victims, as many of them were small children in his family; and the

images in the current case were produced and retained while appellant was released on

bond in a 2019 case, a separate child pornography case. Appellee argued the court

should consider the following factors making appellant’s conduct more serious: all of the

victims are minors, with the majority of them being less than ten years old; sexual

victimization of a child leaves lasting damage; and appellant knew several of the children

and used his familial relationship to gain access to them. As to recidivism factors,

appellee contended the trial court should consider the following: appellant was on bond

and under indictment in a case involving child pornography when he committed these

offenses; appellant has an extensive criminal history, with multiple prison sentences; and

appellant’s actions have gotten increasingly worse with time. Delaware County, Case No. 21 CAA 10 0055 4

{¶7} During the sentencing hearing, counsel for the State of Ohio reviewed

appellant’s extensive criminal history, including the following: 2006 convictions for

criminal damaging and criminal mischief; 2007 conviction for theft; 2009 convictions for

unlawful sexual conduct with a minor and obstructing justice; 2011 and 2012 convictions

for disorderly conduct; 2014 convictions for failure to provide notice of change of address

and receiving stolen property; 2015 conviction for disorderly conduct; 2019 convictions

for pandering sexually oriented matter involving a minor, and a 2019 conviction for

aggravated possession of drugs. Appellant also had several community control and/or

post-release control violations.

{¶8} Counsel for appellant argued for an eight-year sentence, stating the images

were stored on appellant’s phone and not actually shared with anyone, and argued

appellant suffers from serious mental illness. Appellant apologized for his actions.

{¶9} The trial court stated it considered the remarks made during the sentencing

hearing, the recidivism and seriousness factors, the State of Ohio’s sentencing

memorandum, and the pre-sentence investigation in one of appellant’s previous cases.

{¶10} The trial court found consecutive sentences are necessary to protect the

public from future crime and punish appellant, and that consecutive sentences are not

disproportionate to the seriousness of appellant’s conduct and the danger he poses to

the public. Further, the trial court found two or more of these multiple offenses were

committed as part of a course of conduct and the harm caused by the multiple offenses

was so great that no single prison term for any one of the offenses committed as part of

that course of conduct adequately reflects the seriousness of appellant’s conduct. Finally, Delaware County, Case No. 21 CAA 10 0055 5

the trial court found appellant’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by him.

{¶11} The trial court sentenced appellant to indefinite prison terms of eight to

twelve years on each of the second-degree felonies and prison terms of twelve months

on each of the fifth-degree felonies. The court imposed the prison terms of the second-

degree felonies (Counts 1, 3, 7) consecutively, and the remaining counts concurrently for

an aggregate indefinite prison term of twenty-four to twenty-eight years.

{¶12} The trial court entered a sentencing judgment entry on October 6, 2021. In

the judgment entry, the trial court found consecutive sentences are necessary to protect

the public from future crime and to punish the offender, and that consecutive sentences

are not disproportionate to the seriousness of the offender’s conduct and to the danger

the offender poses to the public. Further, that the offender’s history of criminal conduct

demonstrates consecutive sentences are necessary to protect the public from future

crime by the defendant. Finally, that at least two of the multiple offenses were committed

as part of one or more courses of conduct, and the harm caused was so great or unusual

that no single prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

{¶13} Appellant appeals the October 6, 2021 judgment entry of the Delaware

County Court of Common Pleas and assigns the following as error:

{¶14} “I. BY CLEAR AND CONVINCING EVIDENCE, THE RECORD DOES NOT

SUPPORT CONSECUTIVE SENTENCES.

{¶15} “II. INDEFINITE PRISON TERMS IMPOSED UNDER THE REAGAN

TOKES LAW VIOLATE THE GRAND JURY GUARANTEE, THE DOCTRINE OF Delaware County, Case No. 21 CAA 10 0055 6

SEPARATION OF POWERS, AND DUE PROCESS PRINCIPLES UNDER FEDERAL

AND STATE CONSTITUTIONS.”

I.

{¶16} In his first assignment of error, appellant argues the trial court erred in

sentencing him to consecutive sentences.

{¶17} The parties agreed to run the sentence in this case consecutive to

appellant’s sentences on the 2019 cases from Delaware County. Accordingly, appellant’s

argument in this assignment of error is restricted to the consecutive sentences imposed

on the three second-degree felony counts, Count 1, 3, and 7.

{¶18} R.C. 2929.14(C)(4) addresses consecutive sentences. That section states:

(4) If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender’s conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the Delaware County, Case No. 21 CAA 10 0055 7

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protection the public from future crime by the

offender.

{¶19} When imposing consecutive sentences, a trial court must state the required

findings at the sentencing hearing. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177, 16 N.E.3d 659. Because a court speaks through its journal, the court should also

incorporate its statutory findings into the sentencing entry. Id. However, a word-for-word

recitation of the language of the statute is not required. Id. As long as the reviewing court

can discern the trial court engaged in the correct analysis and can determine the record

contains evidence to support the findings, consecutive sentences should be upheld. Id.

{¶20} Appellant concedes that the trial court made the requisite statutory findings

to impose consecutive sentences at the sentencing hearing and in the sentencing entry

under R.C. 2929.14(c)(4). However, appellant argues the record does not support such

findings. Appellant asserts a single term would adequately reflect the seriousness of the

offenses because the photographs were stored on a private phone and were never

shared with anyone. Further, that appellant is more a danger to himself than the

community, as evidenced by the fact that he needs psychiatric assistance and substance

abuse treatment.

{¶21} During the sentencing hearing, the trial court considered the purposes and

principles of sentencing as well as the seriousness and recidivism factors. The trial court Delaware County, Case No. 21 CAA 10 0055 8

found consecutive sentences were necessary to protect the public, to punish appellant,

and were not disproportionate to the crimes he committed. The trial court specifically

noted appellant’s lengthy criminal history, and the fact that he was out on bond on charges

for pandering sexually oriented matter involving a minor when he committed these crimes.

{¶22} We find the trial court’s sentencing on the charges complies with all

applicable rules and sentencing statutes. Upon our review of the record of the sentencing

hearing and the judgment entry, the trial court engaged in the appropriate analysis and

made the requisite findings. We cannot say that we clearly and convincingly find that the

trial court’s order for consecutive service was not supported by the R.C. 2929.14(C)

factors or that it was contrary to law. The sentence was supported by the record.

Appellant’s first assignment of error is overruled.

II.

{¶23} In his second assignment of error, appellant contends the Reagan Tokes

Act is unconstitutional. Specifically, he argues the Reagan Tokes Act violates his

constitutional right to trial by jury and due process of law, and further violates the

constitutional requirement of separation of powers.

{¶24} For the reasons stated in my dissenting opinion in State v. Wolfe, 5th Dist.

Licking No. 2020CA00021, 2020-Ohio-5501, we find the Reagan Tokes Law does not

violate appellant’s constitutional rights to trial by jury and due process of law, and does

not violate the constitutional requirement of separation of powers. We hereby adopt the

dissenting opinion in Wolfe as the opinion of this Court. In so holding, we also note the

sentencing law has been found constitutional by the Second, Third, and Twelfth Districts,

and also by the Eighth District sitting en banc. See e.g., State v. Ferguson, 2nd Dist. Delaware County, Case No. 21 CAA 10 0055 9

Montgomery No. 28644, 2020-Ohio-4154; State v. Hacker, 3rd Dist. Logan No. 8-20-01,

2020-Ohio-5048; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837;

State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470.

{¶25} Appellant’s second assignment of error is overruled.

{¶26} Based on the foregoing, appellant’s assignments of error are overruled.

{¶27} The October 6, 2021 judgment entry of the Delaware County Court of

Common Pleas is affirmed.

By Gwin, J.,

Wise, Earle, P.J., and

Delaney, J., concur