[Cite as State v. Kimes, 2021-Ohio-650.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO, : JUDGES: 

 : Hon. Craig R. Baldwin, P.J. 

 Plaintiff - Appellee : Hon. John W. Wise, J. 

 : Hon. Earle E. Wise, J. 

-vs- : 

 : 

DAVID KIMES II, : Case No. 20 CAA 03 0015 

 : 

 Defendant - Appellant : O P I N I O N 

 

CHARACTER OF PROCEEDING: Appeal from the Delaware County 

Court of Common Pleas, Case No. 

19 CRI 060103 

 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: March 5, 2021 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

HAWKEN FLANAGAN APRIL CAMPBELL 

Assistant Prosecuting Attorney Campbell Law, LLC 

Delaware County 545 Metro Place South, Suite 100 

145 N. Union Street, 3rd Floor Dublin, Ohio 43017 

Delaware, Ohio 43015 
Delaware County, Case No. 20 CAA 03 0015 2 

Baldwin, J.

{¶1} Appellant, David Kimes II, appeals the decision of the Delaware County 

Court of Common Pleas denying his motion to suppress evidence that was discovered 

on his cell phone. He also appeals the verdict of the jury finding him guilty of five counts 

of Pandering Sexually Oriented Matter Involving a Minor in violation of R.C. 

2907.322(A)(1) and the indefinite prison term of eight to twelve years imposed by the 

court. The appellee is the State of Ohio. 

STATEMENT OF FACTS AND THE CASE 

{¶2} Officer Chris Bates of the Delaware City Police Department was on duty 

and in his patrol car when he received notice that a warrant had been issued for a person 

driving a Honda Odyssey in the streets of Delaware. The dispatcher provided a 

description of the individual and the vehicle and Bates soon noticed the vehicle leaving a 

gas station and driving in the opposite direction. He saw a person in the passenger seat 

matching the description of the wanted person described by the dispatcher, but he did not 

see the driver. Bates had to turn his vehicle around and lost visual contact with the 

vehicle. 

{¶3} Bates turned into a side street and located the van parked along the road. 

He switched on his overhead lights and approached the driver side vehicle, but 

discovered that the Odyssey was empty. While at the van he discovered a cell phone on 

the ground, just outside the driver’s door. The cellphone was attached to a charging cord 

that led back into the Odyssey through the closed driver side door. Bates returned to his 

cruiser to wait for the occupants of the van to return. 
Delaware County, Case No. 20 CAA 03 0015 3 

{¶4} After several minutes, and after no one returned to the van, Bates retrieved 

the cell phone and pressed the “home” button on the phone to determine the owner. Once 

he pressed the button, several thumbnail images appeared on the screen that appeared 

to be pornographic images of children. Bates turned off the phone and contacted 

Sergeant Bolen of the Delaware Police Department for further instructions. The cell 

phone was secured by the police department while a warrant was sought to inspect the 

contents of the phone. 

{¶5} Detective Daniel Madden of the Delaware Police Department took 

possession of the cellphone and, pursuant to a warrant, conducted a forensic analysis 

and produced a detailed report regarding the content and the use of the cellphone. The 

report was interpreted by Madden as establishing that the cellphone belonged to Kimes, 

that he was in possession when the images were downloaded and that they were 

knowingly downloaded. 

{¶6} Madden’s forensic report included a list of contact names on the phone. The 

contact identified as "Dad" was confirmed to be David Kimes' father. The contact identified 

as "Baby Mama" was confirmed to be Renee Light, who is the mother of David Kimes' 

child. The contact identified as "Matt" was confirmed to be David Kimes' brother, Matt 

Kimes. User accounts identified in the forensic report included a Facebook account 

belonging to David Kimes, a Facebook Messenger account belonging to David Kimes, 

and a Gmail account belonging to David Kimes. Images in the forensic report included 

'selfie-style' images of David Kimes, as well as images of David Kimes' family members. 

{¶7} Five separate images in the forensic report depicted scenes of child 

pornography. Utilizing the data associated with each of the five images, Detective 
Delaware County, Case No. 20 CAA 03 0015 4 

Strasser and Detective Madden were able to confirm the images were downloaded to the 

LG cellphone at separate times between 8:29 a.m. and 10:02 a.m. on May 23, 2019. 

Detective Strasser was then able to confirm that David Kimes was using the LG cell phone 

during the time period when each of the five images of child pornography were 

downloaded. The timeline section of the forensic report demonstrated that David Kimes 

was conducting a back-and-forth text message conversation with Renee Light ("Baby 

Mama") from 7:02 a.m. to 11:40 a.m. on May 23, 2019, and that he was also engaged in 

a back-and-forth text message conversation with his brother ("Matt") from 7:03 a.m. to 

11:42 a.m. on May 23, 2019. 

{¶8} After confirming the LG cell phone belonged to David Kimes and confirming 

the phone was in his possession when the images of child pornography were 

downloaded, Detective Strasser and Detective Madden identified information in the 

forensic report demonstrating the images were knowingly downloaded. Detective 

Strasser discovered that the Searched Items portion of the forensic report included a 

search for "what does a toddler’s vagina look like." This search was conducted at 8:16 

a.m. on May 23, 2019, approximately 13 minutes before the first image of child 

pornography was downloaded. Detective Madden then confirmed each of the images of 

child pornography were "downloaded" onto the phone and he explained the significance 

of that information. Madden explained that these images were on the phone only because 

the person using the device made a conscious decision to load the image on the phone 

and, that by downloading the image a new and separate image was created. 

{¶9} Kimes was indicted on five counts of Pandering Sexually Oriented Matter 

Involving a Minor and one count of Illegal Use of a Minor in Nudity Oriented Material. The 
Delaware County, Case No. 20 CAA 03 0015 5 

count of Illegal Use of a Minor in Nudity Oriented Material was dismissed. Kimes moved 

to suppress the images extracted from the phone, claiming that his Fourth Amendment 

Rights were violated. The motion was heard by the court and denied. The matter was 

presented to a jury and Kimes was found guilty on all counts and sentenced to an 

indefinite prison term of eight to twelve years. 

{¶10} Kimes filed a timely appeal and submitted four assignments of error: 

{¶11} “I. KIMES MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED 

BECAUSE KIMES DID NOT ‘ABANDON’ HIS PHONE WITHIN THE MEANING OF THE 

FOURTH AMENDMENT.” 

{¶12} “II. THE STATE'S EVIDENCE THAT KIMES PANDERED SEXUALLY 

ORIENTATED(SIC) MATTER INVOLVING A MINOR WAS LEGALLY INSUFFICIENT AS 

A MATTER OF LAW.” 

{¶13} “III. KIMES'S CONVICTIONS FOR PANDERING SHOULD BE 

REVERSED, BECAUSE THE EVIDENCE WEIGHED MANIFESTLY AGAINST 

CONVICTING HIM OF EACH COUNT.” 

{¶14} “IV. KIMES'S SENTENCE UNDER THE REAGAN TOKES ACT IS 

UNCONSTITUTIONAL. THUS, HIS SENTENCES ARE CONTRARY TO LAW AND 

SHOULD BE REVERSED.” 

ANALYSIS 

I. 

{¶15} In his first assignment of error, Kimes argues that his Fourth Amendment 

right to be free from unreasonable searches was violated when the officer activated his 

cellphone and observed the thumbnail images. He contends he had not abandoned the 
Delaware County, Case No. 20 CAA 03 0015 6 

cellphone and that, therefor, he retained an expectation of privacy regarding the contents 

of the phone. He contends that the trial court erred by denying the motion to suppress 

considering those facts. 

{¶16} Appellate review of a motion to suppress presents a mixed question of law 

and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. 

When ruling on a motion to suppress, the trial court assumes the role of trier of fact and 

is in the best position to resolve questions of fact and to evaluate witness credibility. See 

State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995); State v. Fanning, 1 Ohio 

St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must defer to the trial 

court's factual findings if competent, credible evidence exists to support those findings. 

See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio App.3d 328, 332, 713 

N.E.2d 1 (4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d 1268 (4th 

Dist. 1996). However, once this Court has accepted those facts as true, it must 

independently determine as a matter of law whether the trial court met the applicable legal 

standard. See Burnside, supra, quoting State v. McNamara, 124 Ohio App.3d 706, 707 

N.E.2d 539 (4th Dist. 1997); See, generally, United States v. Arvizu, 534 U.S. 266, 122 

S.Ct. 744, 151 L.Ed.2d 740 (2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 

1657, 134 L.Ed.2d 911 (1996). That is, the application of the law to the trial court's findings 

of fact is subject to a de novo standard of review Ornelas, supra. State v. Johns, 5th Dist. 

No. 19-CA-5, 2019-Ohio-4269, 146 N.E.3d 1286, ¶ 11. 

{¶17} Kimes does not contradict the facts as presented by appellee at the hearing. 

The officer pursued the van based upon a description of the van and the passenger. He 

came upon the van after the passenger and the driver had parked and left the van. The 
Delaware County, Case No. 20 CAA 03 0015 7 

officer approached the van and noticed a cellphone on the ground, outside the driver’s 

door, still attached to a charging cable that led back into the van. He waited for someone 

to return to the van and, when no one returned, he picked up the phone and activated it 

with the goal of discovering the owner. He immediately noticed the thumbnail images of 

child pornography, turned off the phone and contacted his supervisor. 

{¶18} Kimes first assignment of error is based upon the characterization of the 

cellphone as abandoned property. The “[q]uestion of whether property has been 

abandoned along with any constitutional interest in the right to privacy or security of a 

property interest is a factual one; trial court must weigh the facts and circumstances to 

determine if in fact the property and constitutional interest therein has been, in fact, 

abandoned.” State v. Harkins, 5th Dist. Licking No. 02-CA-00019, 2002-Ohio-3940, 

¶¶ 22-24 quoting State v. Brown (1975), 45 Ohio App.2d 76, 78, 341 N.E.2d 325. 

Abandonment is primarily a question of intent, and intent may be 

inferred from words spoken, acts done, and other objective facts. United 

States v. Cowan, 2d Cir. 1968, 396 F.2d 83, 87. All relevant circumstances 

existing at the time of the alleged abandonment should be considered. 

United States v. Manning, 5th Cir. 1971, 440 F.2d 1105, 1111. Police pursuit 

or the existence of a police investigation does not of itself render 

abandonment involuntary. See Abel v. United States, supra; United States 

v. Edwards, 5th Cir. 1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir. 1970, 

431 F.2d 330. The issue is not abandonment in the strict property-right 

sense, but whether the person prejudiced by the search had voluntarily 

discarded, left behind, or otherwise relinquished his interest in the property 
Delaware County, Case No. 20 CAA 03 0015 8 

in question so that he could no longer retain a reasonable expectation of 

privacy with regard to it at the time of the search. United States v. Edwards, 

supra, 441 F.2d at 753; cf. Katz v. United States, 1967, 389 U.S. 347 (83 

S.Ct. 507, 19 L.Ed.2d 576) * * *.” 

State v. Freeman, 64 Ohio St.2d 291, 297, 414 N.E.2d 1044, 1048 (1980). 

{¶19} In the case before us the facts leading to the discovery of the phone are 

limited. The officer was pursuing the van, but the record does not show that the occupants 

of the van were aware of the pursuit. The van was legally parked on a side street and 

the officer came upon the van after the occupants had left the van. The phone was on 

the ground, still attached to the charging cable. The officer suggested that the driver 

exited the vehicle while the phone was on his lap or in a position such that the driver was 

unaware of the fact that the phone dropped to the ground. Further, the record does not 

allow us to identify the driver of the van with any confidence.

{¶20} Considering all the circumstances, we cannot agree that the phone was 

abandoned in the sense that the owner “voluntarily discarded, left behind, or otherwise 

relinquished his interest in the [cellphone] so that he could no longer retain a reasonable 

expectation of privacy with regard to it at the time of the search.” Id. The cellphone found 

by the officer was not abandoned, but merely unattended by the owner. “The definition of 

“unattended” is similar to the definition of “lost,” which is defined as “gone out of one's 

possession or control; mislaid.” Webster's Third New International Dictionary at 1338. 

Therefore, we also look to case law addressing lost property to assist our analysis.” State 

v. Polk, 150 Ohio St.3d 29, 2017-Ohio-2735, 78 N.E.3d 834, ¶ 30. 
Delaware County, Case No. 20 CAA 03 0015 9 

{¶21} “Property is lost through inadvertence, not intent.” State v. Ching, 67 Haw. 

107, 110, 678 P.2d 1088 (1984). Consequently, a person retains a reasonable 

expectation of privacy in a lost item, “diminished to the extent that the finder may examine 

the contents of that item as necessary to determine the rightful owner.” (Citations 

omitted.) Polk, supra at ¶ 30. 

{¶22} We find that the cellphone was mislaid or unattended. The officer waited 

for the occupants of the van to return and, when they did not, he picked up the phone and 

pressed the home button to determine the rightful owner. The phone was activated and 

the officer noted evidence of child pornography and he immediately turned off the phone. 

Kimes did retain an expectation of privacy in the phone, but that right was diminished to 

the extent that the officer could examine the content of the phone to determine the owner. 

The officer’s activation of the home button with the intent to discover the rightful owner of 

the phone was not unreasonable under the circumstances, did not violate Kimes’ 

expectation of privacy and was therefore not a violation of Kimes’ Fourth Amendment 

rights. 

{¶23} Kimes’ First Assignment of Error is denied. 

II. 

{¶24} In his second assignment of error, Kimes contends that the evidence that 

he pandered sexually oriented matter involving a minor was legally insufficient as a matter 

of law as there was no evidence that the phone was Kimes or, assuming it was his, that 

he downloaded or accessed the images. 

{¶25} An appellate court's function when reviewing the sufficiency of the evidence 

is to determine whether, after viewing the evidence in a light most favorable to the 
Delaware County, Case No. 20 CAA 03 0015 10 

prosecution, any rational trier of fact could have found the essential elements of the crime 

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, 

(1991), paragraph two of the syllabus. 

{¶26} The appellee presented no direct evidence that Kimes was the owner of the 

phone or that he downloaded the subject images. Instead, appellee relied on 

circumstantial evidence to prove its case. 

‘Circumstantial evidence and direct evidence inherently possess the same 

probative value.’ ” Id., quoting Jenks at paragraph one of the syllabus. 

“Furthermore, ‘[s]ince circumstantial evidence and direct evidence are 

indistinguishable so far as the [fact finder's] fact-finding function is 

concerned, all that is required of the [fact finder] is that [it] weigh all of the 

evidence, direct and circumstantial, against the standard of proof beyond a 

reasonable doubt.’ ” Id., quoting Jenks at 272. 

State v. Fielding, 10th Dist. No. 13AP-654, 2014-Ohio-3105, 15 N.E.3d 912, ¶ 52. 

{¶27} Kimes was charged with a violation of R.C. 2907.322(A)(1), pandering 

sexually oriented matter involving a minor or impaired person which states that “[n]o 

person, with knowledge of the character of the material or performance involved, shall * 

* *[c]reate, record, photograph, film, develop, reproduce, or publish any material that 

shows a minor or impaired person participating or engaging in sexual activity, 

masturbation, or bestiality.” Appellant contends there is insufficient evidence in the record 

to prove he had “knowledge of the character of the material or performance involved” in 

the images or that he had acted to “[c]reate, record, photograph, film, develop, reproduce, 

or publish” the images and that the charges should have been dismissed. 
Delaware County, Case No. 20 CAA 03 0015 11 

{¶28} Kimes does not contend that the images did not reflect a minor participating 

or engaging in sexual activity, so the appellee focused upon evidence to establish Kimes’ 

ownership of the phone, his reproduction of the images and his knowledge of the 

character of the images. After reviewing the record, we find sufficient evidence to support 

all of the elements of the charge. 

{¶29} The appellee addressed ownership of the phone by presenting evidence 

developed from a forensic examination of the phone. An officer trained in the use of 

software designed to extract data from cellphones described the process of acquiring and 

interpreting the data that was within the phone’s memory. His examination revealed that 

the phone had only one user. He found an index of contact names within the phone that 

included Kimes’ brother, identified as Matt, as well as Kimes’ father. One contact was not 

described with a name, but with the moniker “Baby Mama” and that person was identified 

later as the mother of Kimes’ child. 

{¶30} The forensic examination revealed additional ties to Kimes. Social media 

accounts, e.g. Facebook and Facebook Messenger, as well as email accounts were 

registered on the phone, all of which were Kimes’ accounts. Kimes appeared in several 

“selfie” style photographs that were saved on the phone, suggesting that the phone was 

used by Kimes to take photos of himself and family members. 

{¶31} This circumstantial evidence was not refuted by evidence produced by 

Kimes and was sufficient to establish the phone was owned and used by Kimes. 

{¶32} Appellee offered additional evidence from the forensic examination to 

establish Kimes’ use of the phone to acquire the images and his knowledge of the content 

and character of the images. 
Delaware County, Case No. 20 CAA 03 0015 12 

{¶33} The officer that extracted the data found that the date and time that the 

images in question were downloaded to the phone coincided with the date and time the 

phone was used to exchange text messages with the mother of Kimes’ child to discuss 

the details of an event where the child attended school. That officer also discovered an 

exchange of texts with Kimes’ brother, Matt, regarding work. Within the same 

approximate time frame, the user of the phone performed a search using the phrase “what 

does a toddler’s vagina look like?” Considering this evidence in a light most favorable to 

the appellee, we find that a rational trier of fact could conclude that the phone was owned 

and used by Kimes and that he not only had knowledge of the character of the images he 

downloaded, but had intentionally sought those images. 

{¶34} The officer also explained that the photos were “downloaded” to the phone 

meaning that Kimes took active steps to select the image and recreate them within his 

phone. As part of the downloading process, the software within the phone creates a copy 

of the image, completely independent of the image on the website. At the completion of 

the downloading process, two separate copies of the image existed—one on the website 

and one on Kimes’ phone. 

{¶35} The appellee presented unrefuted circumstantial evidence that Kimes 

owned and used this phone, and that he downloaded the photos to the phone knowing 

that they contained images that violated R.C. 2907.322(A)(1). After viewing the evidence 

in a light most favorable to the prosecution, we hold that any rational trier of fact could 

have found the essential elements of pandering sexually oriented matter involving a minor 

proven beyond a reasonable doubt. 

{¶36} Kimes second assignment of error is overruled. 
Delaware County, Case No. 20 CAA 03 0015 13 

III. 

{¶37} In his third assignment of error, Kimes contends that his conviction was 

against the manifest weight of the evidence, repeating his argument from his second 

assignment of error and contending that the phone may have been accessed by a third, 

unidentified party who added the subject images. 

{¶38} In determining whether a verdict is against the manifest weight of the 

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, 

weighs the evidence and all reasonable inferences, considers the credibility of witnesses, 

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and 

created such a manifest miscarriage of justice that the conviction must be reversed and 

a new trial ordered.’ ” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). 

{¶39} In our review of the second assignment of error we held that the appellee 

presented unrefuted circumstantial evidence from which a rational trial of fact could find 

that the elements of the charge were proven beyond a reasonable doubt. Kimes’ 

contention that the phone was not password protected and was accessible to anyone to 

download illegal images does not outweigh the detailed forensic analysis presented by 

appellee describing the date and time of the addition on the images to the phone which 

coincided with use of the phone that can be associated with Kimes and his family. 

“Reversing a conviction as being against the manifest weight of the evidence and ordering 

a new trial should be reserved for only the ‘exceptional case in which the evidence weighs 

heavily against the conviction.’ ” State v. Schoeneman, 5th Dist. Stark No. 2017CA00049, 
Delaware County, Case No. 20 CAA 03 0015 14 

2017-Ohio-7472, ¶ 22. Kimes argument falls short of establishing that this is the 

“exceptional case in which the evidence weighs heavily against the conviction.” 

{¶40} Kimes third assignment of error is denied. 

IV. 

{¶41} In his fourth assignment of error, Kimes argues his sentence should be 

vacated as it was imposed by the Reagan-Tokes Act, which he argues is unconstitutional. 

{¶42} This Court has analyzed appeals of sentences imposed pursuant to the 

Reagan-Tokes Act. See State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-

Ohio-4227, State v. Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631 and 

State v. Cochran, 5th Dist. Licking No. 2019 CA 00122, 2020-Ohio-5329. 

{¶43} In these cases we considered the legal concept of “ripeness for review.” 

The Ohio Supreme Court discussed the concept of ripeness for review in State ex rel. 

Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 1998-Ohio-366, 694 N.E.2d 459: 

Ripeness “is peculiarly a question of timing.” Regional Rail 

Reorganization Act Cases (1974), 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42 

L.Ed.2d 320, 351. The ripeness doctrine is motivated in part by the desire 

“to prevent the courts, through avoidance of premature adjudication, from 

entangling themselves in abstract disagreements over administrative 

policies * * *.” Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 148, 87 

S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691. As one writer has observed: 

The basic principle of ripeness may be derived from the conclusion 

that ‘judicial machinery should be conserved for problems which are real or 
Delaware County, Case No. 20 CAA 03 0015 15 

present and imminent, not squandered on problems which are abstract or 

hypothetical or remote.’ * * * [T]he prerequisite of ripeness is a limitation on 

jurisdiction that is nevertheless basically optimistic as regards the prospects 

of a day in court: the time for judicial relief is simply not yet arrived, even 

though the alleged action of the defendant foretells legal injury to the 

plaintiff. Comment, Mootness and Ripeness: The Postman Always Rings 

Twice (1965), 65 Colum. L.Rev. 867, 876. *4 Id. at 89, 694 N.E.2d at 460. 

Downard, at ¶¶ 8-9. 

{¶44} We found those appellants’ appeals of the constitutionality of the ReaganTokes Act were not ripe for review. “* * * [W]hile R.C. 2967.271 allows the DRC to rebut 

the presumption Appellant will be released after serving his **** minimum sentence and 

potentially continue his incarceration to a term not [exceeding the maximum time], 

Appellant has not yet been subject to such action by the DRC, and thus the constitutional 

issue is not yet ripe for our review.” Downard, at ¶ 11. We determined the appropriate 

action for the appellant was “to challenge the constitutionality of the presumptive release 

portions of R.C. 2967.271 is by filing a writ of habeas corpus if he is not released at the 

conclusion of his eight year minimum term of incarceration.” Downard, at ¶ 12. 

{¶45} We find that the issues presented in the current case are identical to those 

in Downard, Kibler and Cochran. Kimes was sentenced to a minimum prison term of eight 

years and an indefinite prison term of twelve years. There is no dispute that Kimes has 

not yet been subject to R.C. 2967.271, which allows the DRC to rebut the presumption 

that he will be released after serving his eight year minimum sentence and potentially 

continuing his incarceration to a term not exceeding twelve years. The constitutional 
Delaware County, Case No. 20 CAA 03 0015 16 

issues argued by Kimes are not yet ripe for review. (See also State v. Maddox, 6th Dist. 

Lucas No. CL-19-1253, 2020-Ohio-4702 and State v. Halfhill, 4th Dist. Meigs No. 20CA7, 

2021-Ohio-177, ¶ 20). 

{¶46} Kimes’ fourth assignment of error is overruled and the decision of the 

Delaware County Court of Common Pleas is affirmed. 

By: Baldwin, P.J. 

Wise, John, J. and 

Wise, Earle, J. concur.