State v. Kimes , 2022 Ohio 2759 ( 2022 )

[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