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

COURT OF APPEALS

DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vsDAVID W. KIMES, II.

Defendant-Appellant

JUDGES:

: Hon. Earle E. Wise, P.J.

: Hon. W. Scott Gwin, J.

: Hon. Patricia A. Delaney, J.

:

:

: Case No. 21 CAA 10 0055

:

:

: 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 seconddegree 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-Ohio3177, 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