[Cite as State v. Sinkhorn,

.]

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 : :

...........

OPINION

Rendered on the 20th day of November, 2020.

...........

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

.............

WELBAUM, J. -2-

{¶ 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.

Sinkhorn lived in the same neighborhood -3-

and had grown up with Brown’s mother and Brown’s aunts and uncles.

{¶ 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 -4-

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. -5-

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 -6-

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 -7-

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,

, citing State v. Thompkins,

,

(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,

,

(1991), paragraph two of the syllabus,

superseded by constitutional amendment on other grounds as stated in State v. Smith,

,

(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 -8-

includes a finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist.

Franklin No. 10AP-881,

, ¶ 11. Accord State v. Winbush, 2017-Ohio-

696,

, ¶ 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,

. Accord State v. Curtis, 2d Dist. Montgomery No. 28512,

.

{¶ 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,

.

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. -9-

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 -10-

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 -11-

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,

. 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,

,

,

. (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 -12-

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,

.

{¶ 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.

............. -13-

DONOVAN, J. and FROELICH, J., concur.

Copies sent to:

John M. Lintz April F. Campbell Hon. Douglas M. Rastatter