State v. Sinkhorn , 2020 Ohio 5359 ( 2020 )

[Cite as State v. Sinkhorn, 2020-Ohio-5359.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-79
:
v. : Trial Court Case No. 2019-CR-564
:
TIMOTHY SINKHORN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 20th day of November, 2020.
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JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 46½ North Sandusky Street, Delaware,
Ohio 43015
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-Appellant, Timothy Sinkhorn, appeals from his conviction of
aggravated robbery and breaking and entering. According to Sinkhorn, the conviction
for aggravated robbery was based on legally insufficient evidence and was against the
manifest weight of the evidence. In addition, Sinkhorn contends that the Reagan Tokes
Act is unconstitutional, and that because he was sentenced under an unconstitutional
law, his sentence was clearly and convincingly contrary to law.
{¶ 2} We conclude that Sinkhorn’s assignments of error are without merit.
Sinkhorn’s conviction for aggravated robbery was not based on insufficient evidence, nor
was it against the manifest weight of the evidence. Instead, overwhelming evidence
indicated that Sinkhorn threatened to stab a victim with a deadly weapon while
immediately fleeing from an attempted robbery. Furthermore, the Reagan Tokes Act
does not violate either the separation-of-powers doctrine or due process. As a result,
the indefinite sentence the trial court imposed was not contrary to law, because it was
imposed under a constitutional law. Accordingly, the judgment of the trial court will be
affirmed.
I. Facts and Course of Proceedings
{¶ 3} The events that gave rise to this action occurred in the early morning hours
of August 26, 2019. At the time, Stephanie Brown and her children lived on Grissom
Avenue in New Carlisle, Ohio. For the previous five years, Brown had lived in the
house, which her grandparents owned and which was where her mother had been raised.
Trial Transcript (“Tr.”), p. 86. As a child, Brown had often visited the house, and she had
known Timothy Sinkhorn all of her life. Id. Sinkhorn lived in the same neighborhood
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and had grown up with Brown’s mother and Brown’s aunts and uncles. Id.{¶ 4} New Carlisle is a small town and most people in Brown’s neighborhood knew
each other. Id. at p. 87. During the time that Brown lived in the house on Grissom, she
saw Sinkhorn walking in the neighborhood, and he would stop and ask about her mother.
Id. at p. 86-87.
{¶ 5} Brown’s boyfriend, Darrell Grafton, lived in St. Paris, Ohio, but stayed
overnight at times with Brown, including on the night of the crime. Id. During the early
morning hours of August 26, 2019, Brown was having trouble sleeping because her dogs
kept barking. Id. at p. 87-88. When this occurred, Grafton would get up and look out
the window, but she did not see anything. After this happened several times, the dogs
started barking again and “going crazy.” At that point, Brown looked out the side window
of her living room and saw someone wearing a dark hoodie. This person was pulling a
pressure washer out of Brown’s storage shed. Id. at p. 87-88 and 97. Brown then woke
up Grafton, who grabbed a flashlight and ran outside. Brown followed Grafton out. Id.
at p. 88.
{¶ 6} When they got outside, Grafton shined the flashlight on the man’s face, and
Brown recognized him immediately as Timothy Sinkhorn. The flashlight was shining
directly on Sinkhorn’s face and Brown clearly saw him. Id. at p. 88-89.
{¶ 7} At that point, Sinkhorn began yelling, “I have a gun. I have a gun,” and
started waving something shiny at Brown and Grafton. Tr. at p. 90 and 110. Neither
Brown nor Grafton was able to tell exactly what Sinkhorn had in his hand, but Brown
believed he had a gun and was afraid Sinkhorn was going to shoot them. Id. at p. 90
and 114. At that point, Sinkhorn was running away, and Grafton ran after him. Sinkhorn
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was heading toward the stop sign at the intersection of Grissom Avenue and Slayton
Street. This was significant, because Sinkhorn lived on Slayton Street. Id. at p. 93.
{¶ 8} Sinkhorn was carrying some objects, and when the pursuit reached the next-
door neighbor’s driveway, Grafton threw his flashlight at Sinkhorn. Id. at p. 110. At
that point, Sinkhorn dropped whatever he had and ran to the street corner. After picking
up his flashlight, Grafton caught up with Sinkhorn. Id. When they both got to the corner,
Sinkhorn had a box knife in his hand.1 It looked like Sinkhorn reached in his pocket and
got the knife. Id. at p. 112. At that point, Sinkhorn said, “I’ve got a knife. I’ll stab you.”
Id. at p. 110.
{¶ 9} According to Grafton, it was “Like, back up. Quit chasing me. Leave me
alone.” Id. Grafton responded that he did not care, and kept chasing Sinkhorn anyway.
Id. at p. 110 and 112. Sinkhorn then went around the corner, ran down the road past a
few houses, and ran up into a yard. Id. At that point, Grafton stopped chasing Sinkhorn
because he did not want to go into other people’s yards. Id.
{¶ 10} A call was placed to 911, and both Brown and Grafton spoke to the 911
operator. They then went into Brown’s house and waited for the police to arrive. Id. at
p. 90-91, 95, and 113. Deputy Shaw of the Clark County Sheriff’s Office was the first
officer to arrive. When Shaw asked Brown and Grafton if they knew which way the
suspect had run, they pointed in the direction of Grissom and Slayton. Shaw drove
around for three or four minutes, waited for additional deputies to get in the area, and
then went back to Grissom to speak with Brown and Grafton. Id. at p. 135-137.
{¶ 11} After the victims provided Shaw with the name of a suspect (Sinkhorn), the
1 The words “box knife” and “box cutter” were both used at trial to refer to this object.
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police obtained an address for him. Deputies Lyman and Troutman then went to that
address. Tr. at p. 137. Before entering the house, Troutman found a picture of
Sinkhorn in the computer aided dispatch (CAD) system, and when he went inside, he saw
a male who looked like Sinkhorn. However, the man was Sinkhorn’s brother. Troutman
ultimately found Sinkhorn in a back bedroom on the far side of the bed. Sinkhorn was in
between the bed and the wall, and had thrown sheets and covers over his body in an
attempt to not be seen. Id. at p. 128, 129, and 131.
{¶ 12} Deputy Shaw also went to Sinkhorn’s house. When he went into the
house, Sinkhorn was lying on a bed, handcuffed, and Troutman was searching Sinkhorn’s
pockets. Sinkhorn was nervous and sweaty; he had on blue jeans and no shirt.
Troutman found a box cutter and a carrier case for the cutter in Sinkhorn’s pockets. Id.
at p. 139. The box cutter had a blade inside. Id. at p. 140. Shaw then transported
Sinkhorn to jail, but stopped on the way at Brown’s home to pick up the witness
statements. Id. at 142. While Shaw was there, Grafton told him that additional evidence
might be found close to the intersection of Grissom Avenue and Slayton Street. Shaw
went down to the corner with Grafton and found a putty knife or chisel and what looked
like a skillet or frying pan. Id. at p. 113-114 and 143-145. The chisel was located at
about the place where Grafton had thrown his flashlight at Sinkhorn. Id. at p. 114.
{¶ 13} Sinkhorn was subsequently charged with aggravated robbery and
breaking and entering. A jury trial was held on October 31, 2019, during which the State
presented testimony from Brown, Grafton, Troutman, and Shaw. Sinkhorn did not
present any witnesses. After the jury found Sinkhorn guilty of both offenses, the trial
court held a sentencing hearing on November 6, 2019. At that time, the court sentenced
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Sinkhorn to a one-year term for breaking and entering and to 10-15 years for aggravated
robbery. The sentences were imposed consecutively, and pursuant to the Reagan Tokes
Act, resulted in an indefinite prison term of 11 to 16 years. Sinkhorn timely appealed.
I. Sufficiency and Manifest Weight
{¶ 14} Sinkhorn’s First and Second Assignments of Error deal with the sufficiency
and weight of the evidence. Because these matters are intertwined, we will consider
them together. These assignments of error are as follows:
The State’s Evidence that Sinkhorn Committed Aggravated Robbery
Was Legally Insufficient as a Matter of Law.
Sinkhorn’s Conviction for Aggravated Robbery Should Be Reversed,
Because the Evidence Weighted Manifestly Against Convicting Sinkhorn of
that Count.
{¶ 15} As a preliminary point, we note that Sinkhorn does not challenge his
conviction for breaking and entering, but directs his arguments solely to the aggravated
robbery conviction. Consequently, we will confine our discussion to that conviction.
{¶ 16} Concerning the sufficiency of the evidence, Sinkhorn contends that there
was no evidence that he had a deadly weapon, as required for an aggravated robbery
conviction. Specifically, although Sinkhorn stated that he had a gun, no gun was ever
found. Furthermore, even though Sinkhorn had a box cutter and brandished it, this did
not occur “immediately” after he attempted to commit a theft offense. Instead, according
to Sinkhorn, distance and other events intervened. Finally, Sinkhorn argues that the box
cutter did not meet the definition of a deadly weapon because Grafton testified that he did
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not know if the box cutter was open.
{¶ 17} Regarding manifest weight, Sinkhorn uses the same arguments, but
phrases them as issues of whether the inferences to be drawn from the evidence were
believable or persuasive and supported the conclusion that he committed aggravated
robbery.
{¶ 18} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). In this situation, we apply the following test:
An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable
doubt. The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the 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,
superseded by constitutional amendment on other grounds as stated in State v. Smith,
80 Ohio St.3d 89, 684 N.E.2d 668 (1997).
{¶ 19} Moreover, “[a]lthough sufficiency and manifest weight are different legal
concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a
finding that a conviction is supported by the manifest weight of the evidence necessarily
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includes a finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist.
Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-
696, 85 N.E.3d 501, ¶ 58 (2d Dist.). As a result, “a determination that a conviction is
supported by the weight of the evidence will also be dispositive of the issue of sufficiency.”
(Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198,
¶ 15. Accord State v. Curtis, 2d Dist. Montgomery No. 28512, 2020-Ohio-4152, ¶ 44.
{¶ 20} Sinkhorn was charged with having violated R.C. 2911.01(A)(1), which
provides that:
No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under
the offender's control and either display the weapon, brandish it, indicate
that the offender possesses it, or use it.
{¶ 21} A “deadly weapon” is defined in R.C. 2923.11(A) as “any instrument, device,
or thing capable of inflicting death, and designed or specially adapted for use as a
weapon, or possessed, carried, or used as a weapon.” Courts have held that a box cutter
is a deadly weapon. E.g., State v. Carter, 8th Dist. Cuyahoga No. 84036, 2004-Ohio-
6861, ¶ 14; State v. Moore, 6th Dist. Lucas No. L-15-1211, 2016-Ohio-3506, ¶ 19.
Deputy Shaw also testified that in his training and experience, a box cutter is capable of
causing harm to a person. Tr. at p. 141.
{¶ 22} In the case before us, there is no dispute about these facts: Sinkhorn stated
that he had a knife, pulled a box cutter from his pocket, and threatened to stab Grafton.
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Sinkhorn also had a box cutter on his person when he was arrested. Notably, R.C.
2911.01(A)(1) does not require that a weapon be actually used; all that is required is that
the offender display or brandish a weapon, or indicate that it is possessed. That certainly
occurred here, and whether there was testimony that the blade was open at the time was
irrelevant.
{¶ 23} Furthermore, R.C. 2911.01(A)(1) does not require that a weapon be used
during a robbery; the weapon may also be used, displayed, or brandished when an
individual is immediately fleeing from a robbery. That obviously occurred here.
{¶ 24} In this context, we disagree with Sinkhorn’s contention that his actions did
not occur immediately after he committed the offense. Sinkhorn argues that there was
a lapse of time because the box cutter was not brandished instantly. No lapse of time
occurred here. To the contrary, Sinkhorn brandished the box cutter while he was directly
fleeing from the crime scene.
{¶ 25} Sinkhorn also contends that an intervening incident (the throwing of the
flashlight) occurred. However, the fact that one of the victims threw a flashlight was
irrelevant. Everything that happened from the time Sinkhorn ran from the scene until
Grafton gave up the chase occurred in a continuous sequence. We also note that
overwhelming evidence established that Sinkhorn committed aggravated robbery.
Accordingly, the First and Second Assignments of Error are without merit and are
overruled.
III. Reagan Tokes Act
{¶ 26} Sinkhorn’s Third and Fourth Assignments of Error are also intertwined and
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will be considered together. These assignments of error state that:
Sinkhorn’s Sentence Under the Reagan Tokes Act Is
Unconstitutional.
Because the Statute Under Which Sinkhorn Was Sentenced Is
Unconstitutional, His Sentence Is Clearly and Convincingly Contrary to Law.
{¶ 27} Under these assignments of error, Sinkhorn contends that Senate Bill 201
(also known as the Reagan Tokes Act) is unconstitutional. The Reagan Tokes Act
introduced indefinite sentencing for first and second-degree felonies committed after
March 22, 2019. See R.C. 2967.271.
{¶ 28} According to Sinkhorn, the Act improperly gives the Ohio Department of
Rehabilitation and Correction (“ODRC”) power to decide if a crime was committed and
violates the separation-of-powers doctrine and Article III of the Ohio Constitution.
Sinkhorn further argues that the Act violates due process by allowing the State to place
“holds” on people without the right to a trial, an attorney, and a jury.
{¶ 29} The State’s first response is that Sinkhorn waived these arguments because
he failed to raise them in the trial court. The State then contends that the issue is not yet
ripe for review because the process under which the ODRC may use the “rebuttal
process” outlined in the Act is about a decade away, i.e., when Sinkhorn’s minimum
sentences end.
{¶ 30} Under the Reagan Tokes Act, a trial court decides the minimum and
maximum terms of a defendant’s sentence. When the minimum term expires, there is a
presumption that the offender shall be released. However, ODRC may rebut the
presumption and hold a prisoner in custody up to the maximum term after holding a
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hearing. See R.C. 2967.271(B)-(D). The statute contains factors that apply relating to
an offender’s conduct while in prison. See R.C. 2967.271(C). In addition, the statute
also allows ODRC to recommend to the court that an offender’s minimum sentence be
reduced, based on the offender’s “exceptional conduct while incarcerated or the
offender’s adjustment to incarceration.” R.C. 2967.271(F)(1).
{¶ 31} As applied to the case before us, this would mean that Sinkhorn would be
presumed entitled to release after serving 11 years of his sentence, but ODRC could
rebut that presumption and decide to hold him in prison for up to 16 years (the full
maximum term).
{¶ 32} The State has also responded to the separation-of-powers and due process
arguments. However, we need not address these arguments because we recently
upheld the constitutionality of the Reagan Tokes Act. See State v. Ferguson, 2d Dist.
Montgomery No. 28644, 2020-Ohio-4153. In Ferguson, we concluded that the Act does
not violate the separation-of-powers doctrine. We reasoned that the Act’s scheme is
consistent with established Ohio Supreme Court authority, which has held that “when the
power to sanction is delegated to the executive branch, a separation-of-powers problem
is avoided if the sanction is originally imposed by a court and included in its sentence.”
Id. at ¶ 23, citing Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d
301, ¶ 18-20. (Other citation omitted.) As in Ferguson, the trial court here included the
sanction in its sentence. See Judgment Entry of Conviction, p. 1-2.
{¶ 33} We further held in Ferguson that the Reagan Tokes Act does not violate
due process. In this regard, we commented that:
“[T]he fundamental requisite of due process of law is the opportunity
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to be heard in a meaningful time and in a meaningful manner.” * * * The
Reagan Tokes Law satisfies these requirements. The Law states that, in
order to rebut the presumption of the minimum term, the DRC [Department
of Rehabilitation and Correction] must make a particular statutory
determination “at a hearing.” R.C. 2967.271(C) and (D). The Law does
not give the DRC unfettered discretion to require an offender to serve more
than the minimum term. And it affords an offender notice and an
opportunity to be heard before more than the minimum may be required.
Ferguson at ¶ 25.
{¶ 34} Other cases from our district have also upheld the constitutionality of the
Reagan Tokes Act. See State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-
4150, and State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592.
{¶ 35} Based on the above discussion, the Third Assignment of Error is overruled.
The Reagan Tokes Act does not violate either the separation-of-powers doctrine or due
process. Furthermore, since the Reagan Tokes Act is constitutional, application of the
Act to Sinkhorn’s sentence did not make the sentence contrary to law. Accordingly, the
Fourth Assignment of Error is overruled as well.
IV. Conclusion
{¶ 36} All of Sinkhorn’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
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DONOVAN, J. and FROELICH, J., concur.
Copies sent to:
John M. Lintz
April F. Campbell
Hon. Douglas M. Rastatter