State v. Kindle

2022 Ohio 2991

• Court: Ohio Court of Appeals
• Decided: August 29, 2022
• Docket: 1-22-02
• Status: Published

Opinion

[Cite as State v. Kindle, 2022-Ohio-2991.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-22-02

v.

JEREMY A. KINDLE, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR2020 0144

Judgment Affirmed

Date of Decision: August 29, 2022

APPEARANCES:

William T. Cramer for Appellant

Jana E. Emerick for Appellee Case No. 1-22-02

SHAW, J.

{¶1} Defendant-appellant, Jeremy Kindle (“Kindle”), brings this appeal

from the January 3, 2022 judgment of the Allen County Common Pleas Court

sentencing him to an aggregate, indefinite prison term of 94-98 years. On appeal,

Kindle argues that the trial court erred by failing to merge certain convictions for

purposes of sentencing, that consecutive sentences were not supported in this matter,

and that the Reagan Tokes Law is unconstitutional.

Background

{¶2} In May of 2020, Kindle and his husband Scott Steffes had nine children

living with them: three children they had adopted together, three children they were

fostering, and three children who were displaced when their legal guardian suffered

a residential fire. On May 20, 2020, one of the children who had been staying in the

home, 12-year-old B.H., disclosed that Kindle and Steffes had been engaging in

sexual conduct with children in the residence. After B.H. disclosed the sexual

conduct, several other children in the residence were interviewed and they disclosed

sexual conduct that had been occurring with Kindle and Steffes, in some cases, for

years.1

1 Some of the children were initially reluctant to talk to the police while others were more forthcoming. Nevertheless, one child actually had a hickey on his neck from Kindle during his initial interview with police.

-2- Case No. 1-22-02

{¶3} Kindle allegedly engaged in sexual conduct with six pre-teen or teenage

boys and one adult who had previously been in the care of Kindle and Steffes.2 The

sexual conduct that was perpetrated allegedly occurred over 500 times between

Kindle and one child. To make matters worse, Kindle and Steffes were HIV positive

and they did not disclose this fact to the victims.3

{¶4} Kindle and Steffes bribed the children with money and gifts to engage

in the sexual acts and to stay quiet about them.4 In addition to the bribes, the children

were also permitted to regularly smoke marijuana and consume alcohol.

{¶5} When confronted by the police, Steffes admitted to engaging in sexual

acts with several of the children, though he denied engaging in sexual acts with the

three youngest children. Steffes also stated that Kindle engaged in sexual acts far

more often with the children than he did.

{¶6} When Kindle was confronted at his home by law enforcement, Kindle

cut his own neck open with a small circular saw. He survived the incident and, when

later interrogated, he admitted to engaging in sexual conduct with certain children.

2 The sexual acts that were disclosed included Kindle and Steffes performing oral sex on the boys, having the boys perform anal sex on Kindle or Steffes, and having the boys perform sexual acts on each other at Kindle’s direction. In addition, there were some allegations of digital penetration, or attempted penetration, of some children’s anal cavities by Kindle or by other children at Kindle’s direction. Further, there were allegations that Kindle and Steffes would engage in sexual acts with multiple children in the same room, and allegations that Kindle had engaged in sexual acts with multiple children at the same time. 3 Kindle and Steffes indicated that they were being treated with medication that rendered the HIV essentially undetectable. 4 One incident was described by multiple children wherein a few of the children were detained at Menards for theft and Kindle told the children he would pay the restitution so the boys would not get into trouble if one of the children engaged in sexual acts for the first time.

-3- Case No. 1-22-02

{¶7} On July 16, 2020, Kindle was charged in a 65-count indictment with 57

of the counts constituting sex crimes. The sex crimes alleged included rape, sexual

battery, and unlawful sexual conduct with a minor. Kindle was also charged with

felonious assaults against each of the alleged victims for engaging in sexual conduct

with each victim after testing positive for HIV. Finally, Kindle was charged with

tampering with evidence for attempting to alter, conceal, or destroy evidence such

as sex toys, controlled substances, and cellular phone data.

{¶8} On November 12, 2021, Kindle entered into a written negotiated plea

agreement wherein he agreed to plead guilty to 20 counts as charged in the

indictment: three counts of sexual battery in violation of R.C. 2907.03(A)(5), all

second degree felonies due to the victims being under the age of 13; six counts of

sexual battery in violation of R.C. 2907.03(A)(5), all third degree felonies; five

counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), all

third degree felonies; four counts of felonious assault in violation of R.C.

2903.11(B)(3), all second degree felonies; one count of felonious assault in violation

of R.C. 2903.11(B)(1), a second degree felony; and one count of tampering with

evidence in violation of R.C. 2921.12(A)(1), a third degree felony. The charges

Kindle agreed to plead guilty to encompassed crimes against five child-victims and

one adult victim. In exchange for Kindle’s guilty pleas, the State agreed to dismiss

-4- Case No. 1-22-02

the remaining 45 charges in the indictment, including the most serious charges,

which were rape.

{¶9} On January 3, 2022, the matter proceeded to sentencing. After hearing

the arguments of the parties, the trial court determined that none of the counts

merged for purposes of sentencing because they were either against different

victims, constituted different sexual acts (oral versus anal sex), or the harm was

different. The trial court then imposed prison terms on all 20 counts and determined

that consecutive sentences were appropriate on all of the counts. Ultimately Kindle

was ordered to serve an aggregate, indefinite prison term of a minimum of 94 years

to a maximum of 98 years. It is from this judgment that Kindle appeals, asserting

the following assignments of error for our review.

Assignment of Error No. 1 Appellant’s federal and state constitutional protections against double jeopardy were violated by multiple convictions for allied offenses of felonious assault and the underlying sex offenses.

Assignment of Error No. 2 By clear and convincing evidence, the record does not support the trial court’s findings for consecutive sentences.

Assignment of Error No. 3 Indefinite prison terms imposed under the Reagan Tokes Law violate the jury trial guarantee, the doctrine of separation of powers, and due process principles under the federal and state constitutions.

First Assignment of Error

-5- Case No. 1-22-02

{¶10} In his first assignment of error Kindle argues that the trial court erred

by failing to merge his felonious assault convictions with the underlying sex

offenses against each victim. More specifically, Kindle argues that he could not be

convicted of felonious assault for having sex with a victim while carrying HIV and

also convicted of a sex crime with the same victim because both crimes effectively

occurred at the same time through the same sexual conduct.

Standard of Review

{¶11} “ ‘Whether offenses are allied offenses of similar import is a question

of law that this Court reviews de novo.’ ” State v. Jessen, 3d Dist. Auglaize No. 2-

18-16, 2019-Ohio-907, ¶ 22, quoting State v. Frye, 3d Dist. Allen No. 1-17-30,

2018-Ohio-894; see generally State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-955.

Relevant Authority

{¶12} Revised Code 2941.25, Ohio’s multiple-count statute, states:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

-6- Case No. 1-22-02

{¶13} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Supreme

Court of Ohio held the following with regard to determining allied offenses:

1. In determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the conduct, the animus, and the import.

2. Two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.

3. Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be convicted of all the offenses if any one of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus.

The Supreme Court in Ruff explained:

At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at trial or during a plea or sentencing hearing will reveal whether the offenses have similar import. When a defendant’s conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts. Also, a defendant’s conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense. We therefore hold that two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.

Ruff, 2015-Ohio-995 at ¶ 26.

-7- Case No. 1-22-02

Analysis

{¶14} Kindle was convicted of four counts of felonious assault in violation

of R.C. 2903.11(B)(3), and one count of felonious assault in violation of R.C.

2903.11(B)(1). These sections of the felonious assault statute read as follows:

(B) No person, with knowledge that the person has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall knowingly do any of the following:

(1) Engage in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct;

***

(3) Engage in sexual conduct with a person under eighteen years of age who is not the spouse of the offender.

{¶15} Kindle was also convicted of numerous counts of sexual battery in

violation of R.C. 2907.03(A)(5), which reads: “No person shall engage in sexual

conduct with another, not the spouse of the offender, when * * * [t]he offender is

the other person’s natural or adoptive parent, or a stepparent, or guardian, custodian,

or person in loco parentis of the other person.” In addition, Kindle was convicted

of numerous counts of unlawful sexual conduct with a minor in violation of R.C.

2907.04(A), which reads: “No person who is eighteen years of age or older shall

engage in sexual conduct with another, who is not the spouse of the offender, when

-8- Case No. 1-22-02

the offender knows the other person is thirteen years of age or older but less than

sixteen years of age, or the offender is reckless in that regard.”

{¶16} On appeal, Kindle contends that the felonious assaults he was

convicted of against each victim should merge with the underlying sex offenses

against each victim “because they involved the same sexual conduct with the same

motivation of sexual gratification.” (Appt.’s Br. at 7). In other words, Kindle argues

that he was completing the act of both felonious assault and the sex crime at the

same moment, thus there could not be separate convictions for the two crimes.

{¶17} However, in making his argument, Kindle does acknowledge our

recent decision in State v. Ward, 3d Dist. Allen No. 1-20-08, 2021-Ohio-1930,

where we directly rejected the same argument that Kindle is making sub judice.5 In

Ward a defendant was separately convicted of raping a child under the age of 13

and of felonious assault due to committing the rape of a child while having HIV.

Just as Kindle does here, Ward argued that his convictions should merge for the

purposes of sentencing because they were completed by the same act, at the same

time, with the same animus. We rejected this argument, reasoning:

In this case, the harm that could result from sexual conduct with a minor under the age of 13 has considerable psychological and certain potential physical ramifications. However, that sexual conduct when one knows they are HIV positive implicates a new category of concerns in that it may result in an incurable disease that the victim will be forced to deal with during the victim's

5 Kindle indicates that he primarily wishes to preserve this issue for further review by the Supreme Court of Ohio.

-9- Case No. 1-22-02

lifetime and could result in the victim's death. It can also necessitate that the victim be on medication for the victim’s lifetime at great expense. The harm caused by the felonious assault in this case was separate and identifiable from the harm caused by the rape.

Ward at ¶ 8.

{¶18} Kindle now urges us to revisit our holding in Ward, but we decline to

do so and reaffirm that felonious assault via sexual acts with an undisclosed HIV

diagnosis and a separate sexual crime do not merge for purposes of sentencing.

{¶19} Moreover, notwithstanding our holding in Ward, we could still readily

determine that the sex acts and the felonious assaults were separate in this case

because Kindle pled guilty to crimes that occurred against the victims over a range

of dates. The allegations indicated numerous sex acts against each victim, thus each

conviction could represent a different sexual act during the alleged timeframe. For

all of these reasons, Kindle’s first assignment of error is overruled.

Second Assignment of Error

{¶20} In his second assignment of error, Kindle argues that the record does

not support the trial court’s imposition of consecutive sentences.

{¶21} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

-10- Case No. 1-22-02

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “ ‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’ ”

Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of

the syllabus.

{¶22} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive

sentences, a trial court must find on the record that consecutive sentences are

“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.” Accord State v. Grate,

164 Ohio St.3d 9, 2020-Ohio-5584, ¶ 205. A trial court must then also find that at

least one or more of the aggravating factors in R.C. 2929.14(C)(4)(a) through (c)

are present. Those factors include,

(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 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.

-11- Case No. 1-22-02

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶23} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 37, the

Supreme Court of Ohio held that a trial court must make the requisite statutory

findings before imposing consecutive sentences “at the sentencing hearing and

incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.”

{¶24} At the outset, we note that Kindle effectively concedes that the trial

court made the appropriate findings under R.C. 2929.14(C)(4) to impose

consecutive sentences in this matter.6 Instead of arguing that the trial court failed to

make the proper findings, Kindle contends that the record did not support the trial

court’s findings. More specifically, Kindle contends that he accepted responsibility

for his conduct and that he had a “low risk of reoffending” according to the

presentence investigation. Further, he claims that he was a helpful and active

member of his community, that he maintained full-time employment in a

respectable profession, and that he had no prior criminal record. Thus he argues that

there were substantial mitigating factors in his case.

6 Even if he did not concede this issue, the proper findings were made at the sentencing hearing and in the judgment entry.

-12- Case No. 1-22-02

{¶25} Contrary to Kindle’s arguments, we emphasize that it is well-settled

that a trial court has no obligation to state its specific reasons to support its

consecutive sentencing findings under R.C. 2929.14(C)(4). Bonnell, supra, at ¶ 37.

Nevertheless, even though the trial court had no obligation to state any of its

reasoning, the trial court did express its reasoning on the record. The trial court

began by stating, “The only adjective that I can find that would describe this is an

abomination.” (Jan. 3, 2022, Tr.at 36). The trial court elaborated, stating, “Given

the nature of the offenses, the time periods over which this went, the course of

conduct, the number of victims, the number of times,” consecutive sentences were

appropriate in this matter. (Id. at 41).

{¶26} The trial court based its findings on the pre-sentence investigation and

the police reports, which were both filed as exhibits at sentencing. The police reports

were particularly powerful, detailing years of ongoing sexual abuse perpetrated by

Kindle in what can accurately be described by anyone reading them as an

“abomination.”

{¶27} Under the facts and circumstances of this case we do not find that

Kindle has demonstrated by clear and convincing evidence that his consecutive

sentences were improper. The trial court made the appropriate findings to impose

consecutive sentences under R.C. 2929.14(C)(4), the trial court supported those

findings even though it did not have to do so on the record, and the trial court’s

-13- Case No. 1-22-02

findings were supported in the record. For these reasons, Kindle’s second

assignment of error is overruled.

Third Assignment of Error

{¶28} In his third assignment of error, Kindle argues that the Reagan Tokes

Law is unconstitutional because it violates the separation of powers and because it

violates due process principles under the federal and state constitutions.

{¶29} We have repeatedly rejected constitutional challenges to the Reagan

Tokes Law similar to Kindle’s. E.g., State v. Freeman, 3d Dist. Allen Nos. 1-21-17,

18, 2022-Ohio-1991. We decline to revisit our precedent here, therefore, Kindle’s

third assignment of error is overruled.

Conclusion

{¶30} For the foregoing reasons Kindle’s assignments of error are overruled

and the judgment and sentence of the Allen County Common Pleas Court is

affirmed.

ZIMMERMAN, P.J. and MILLER, J., concur.

/jlr

-14-