[Cite as State v. Kinn, 2020-Ohio-512.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                  :
                                                :
         Plaintiff-Appellee                     :   Appellate Case No. 28336
                                                :
 v.                                             :   Trial Court Case Nos. 2018-CR-826
                                                :   and 2018-CR-2276
 JASON P. KINN                                  :
                                                :   (Criminal Appeal from
         Defendant-Appellant                    :   Common Pleas Court)
                                                :

                                          ...........

                                          OPINION

                           Rendered on the 14th day of February, 2020.

                                          ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

BRIAN A. MUENCHENBACH, Atty. Reg. No. 0088722, 40 North Main Street, 1900
Kettering Tower, Dayton, Ohio 45423
       Attorney for Defendant-Appellant

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




WELBAUM, J.
                                                                                        -2-


       {¶ 1} Defendant-appellant, Jason P. Kinn, appeals from his conviction in the

Montgomery County Court of Common Pleas in two cases: he pled no contest to one

count of aggravated possession of drugs and one count of possession of drugs in

Montgomery C.P. No. 2018-CR-826, and he pled no contest to one count of possession

of drugs in Montgomery C.P. No. 2018-CR-2276.            Other counts were dismissed in

exchange for his pleas. On appeal, Kinn challenges the trial court’s decision in Case No.

2018-CR-826 overruling his motion to suppress the drug evidence; he raises no argument

on appeal with respect to his conviction in Case No. 2018-CR-2276. For the reasons

outlined below, the judgments of the trial court will be affirmed.



                             Facts and Course of Proceedings

       {¶ 2} On April 10, 2018, the Montgomery County Grand Jury returned an

indictment in Case No. 2018-CR-826 charging Kinn with one count of aggravated

possession of drugs (methamphetamine), a felony of the second degree; one count of

possession of drugs (heroin), a felony of the fifth degree; and one count of possession of

drugs (alprazolam), a misdemeanor of the first degree. The drugs in question were

discovered during a traffic stop of a vehicle in which Kinn was riding as a backseat

passenger. Kinn initially pled not guilty to the charges and subsequently filed a motion

to suppress the drug evidence. In support of his motion to suppress, Kinn raised a single

argument that challenged the legality of the traffic stop. Specifically, Kinn argued that

the police officers who effectuated the traffic stop did not have a reasonable suspicion of

criminal activity to justify the stop.

       {¶ 3} On August 10, 2018, the trial court held a suppression hearing during which
                                                                                          -3-


the State presented testimony from Officer Douglas Thompson of the Dayton Police

Department. No other witnesses testified at the hearing. Officer Thompson testified

that on the night of February 27, 2018, he was on duty with his partner, Officer Jeremy

Campbell, patrolling “the East Second Street, Woodley area—Westview, Cherrywood,

that whole area up in there.” Supp. Trans. p. 7. Officer Thompson testified that he and

Officer Campbell were traveling in a police cruiser together when they observed a 1999

Toyota Camry pull out of a driveway on North Wright Avenue. 1            Officer Thompson

testified that he and Officer Campbell followed the vehicle on North Wright Avenue where

he observed the vehicle approach a stop sign at an intersection with Woodley Road.

Officer Thompson testified that when the vehicle approached the stop sign, the vehicle

initiated its right turn signal “roughly about ten feet from the front of the car to the stop

sign[.]” Id. at 10. Officer Thompson testified that the vehicle then turned right onto

Woodley Road.

       {¶ 4} After the vehicle turned right onto Woodley Road, Officer Thompson and

Officer Campbell continued to follow the vehicle. While traveling on Woodley Road,

Officer Thompson testified that he observed the vehicle approach a stop sign at an

intersection with North Smithville Road.     Officer Thompson testified that the vehicle

signaled a right turn onto North Smithville Road and initiated its turn signal while “[t]he

front of the vehicle was very close, if not at, the stop sign[.]” Id. at 11. Officer Thompson

testified that he and Officer Campbell then activated the overhead lights on their police

cruiser and initiated a traffic stop for two turn signal violations. Specifically, Officer


1 Thompson testified that the driveway the vehicle pulled out of was the driveway of a
known drug house; however, Thompson clarified that this fact was not known until later
in time and was not part of his and Officer Campbell’s reason for following the vehicle.
                                                                                             -4-


Thompson testified that the traffic stop was made and the driver was cited for failing to

initiate his turn signal 100 feet prior to turning right onto Woodley and North Smithville

Roads.2

       {¶ 5} The alleged turn signal violations observed by Officers Thompson and

Campbell were captured on video by their police cruiser camera. The cruiser camera

video footage was played for the trial court and admitted into evidence as State’s Exhibit

2. The video footage largely confirmed Officer Thompson’s testimony. During the first

turn at Woodley Road, the vehicle can be seen initiating its turn signal just a few feet

before stopping and turning at the stop sign. During the second turn at North Smithville

Road, the vehicle can be seen initiating its turn signal about the same time it stops at the

stop sign. It is clear from the video that the vehicle did not initiate its turn signal 100 feet

before turning.

       {¶ 6} On cross-examination, Kinn’s trial counsel attempted to question Officer

Thompson regarding the contents of a police report prepared by Officer Campbell. The

State objected to that line of questioning on grounds that the report was not prepared by

Officer Thompson. In ruling on the objection, the trial court found that the contents of the

report were inadmissible since Officer Campbell was not testifying at the hearing and

because the report was not Officer Thomson’s “prior statement.” Supp. Trans. p. 25.

Therefore, the trial court sustained the State’s objection on hearsay grounds.

       {¶ 7} After the trial court sustained the State’s objection, Kinn’s trial counsel



2 Although the statutory provision requiring drivers to signal 100 feet before turning was
not admitted into evidence, see R.C. 4511.39(A), the defense stated on the record that it
was not contesting the fact that failing to signal 100 feet before turning is a violation of
the law.
                                                                                         -5-


questioned Officer Thompson about a discussion he had with Officer Campbell that was

recorded on the cruiser camera video. The video footage established that after running

the license plate of the vehicle in question, the officers discussed the registered owner of

the vehicle being a known associate of a sexually violent predator. Immediately after

discovering this information, and simultaneous to the vehicle’s second turn signal

violation, Officer Thompson can be heard on the video saying: “Well light ‘em up, see

what’s going on.”

       {¶ 8} At the close of the suppression hearing, defense counsel argued that the

timing of Officer Thompson’s statement established that the traffic stop was a pretext for

him and Officer Campbell to investigate whether there was a sexually violent predator in

the area.   In ruling on the motion to suppress, the trial court agreed that Officer

Thompson’s statement indicated that he had a subjective, ulterior motivation for stopping

the vehicle. However, the trial court found that Officer Thompson’s subjective motivation

did not render the traffic stop illegal since the video footage clearly established that the

vehicle had engaged in two traffic violations prior to the stop. Therefore, the trial court

determined that, when viewing the circumstances objectively, the traffic stop was justified

by the turn signal violations witnessed by the officers, thus making the stop

constitutionally valid. In light of this finding, the trial court overruled Kinn’s motion to

suppress.

       {¶ 9} After the trial court overruled Kinn’s motion to suppress, Kinn entered a plea

agreement with the State whereby he agreed to plead no contest to the charges for

aggravated possession of drugs and possession of heroin. In exchange for his plea, the

State agreed to dismiss the misdemeanor charge for possessing alprazolam.
                                                                                           -6-


Thereafter, on January 31, 2019, the trial court accepted Kinn’s no contest plea and found

him guilty of aggravated possession of drugs and possession of heroin. At sentencing,

the trial court ordered Kinn to serve an aggregate, mandatory sentence of two years in

prison. The trial court, however, suspended the two-year sentence pending the outcome

of an appeal from his conviction. Kinn thereafter filed the instant appeal, raising three

assignments of error for review.



                                First Assignment of Error

       {¶ 10} Under his first assignment of error, Kinn contends that the trial court

prejudicially erred when it sustained the State’s objection to his trial counsel’s questioning

Officer Thompson about the contents of Officer Campbell’s police report. Kinn argues

that because the rules of evidence do not apply to suppression hearings, the trial court

should have overruled the State’s objection and should have allowed counsel to cross-

examine Officer Thompson about the report despite it containing hearsay. The State

concedes error in this regard, but argues that the error was harmless and does not require

a reversal of the trial court’s decision overruling Kinn’s motion to suppress. We agree

with the State.

       {¶ 11} As a preliminary matter, we note that Kinn correctly argues that the rules of

evidence do not apply to preliminary questions concerning the admissibility of evidence.

See Evid.R. 101(C)(1); Evid.R. 104(A). It is well established that “ ‘the rules of evidence

normally applicable in criminal trials do not operate with full force at hearings before the

judge to determine the admissibility of evidence.’ ” State v. Redd, 2d Dist. Montgomery

No. 26273, 2015-Ohio-3164, ¶ 3, quoting United States v. Matlock, 415 U.S. 164, 172-
                                                                                           -7-


173, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). “This is true of suppression hearings in Ohio.”

Id., citing State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 752, ¶ 14.

(Other citations omitted.)     Therefore, “ ‘the rules of evidence and the hearsay

exclusionary rule do not apply in a suppression hearing.’ ” State v. Bishop, 2d Dist. Clark

No. 2003-CA-37, 2004-Ohio-6221, ¶ 19, quoting State v. Pipkins, 2d Dist. Montgomery

No. 15060, 1996 WL 50158, *4 (Feb. 9, 1996).            (Other citations omitted.)    “ ‘At a

suppression hearing, the Court may rely on hearsay and other evidence, even though

that evidence would not be admissible at trial.’ ” Pipkins at *4, quoting United States v.

Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).

       {¶ 12} Although “the trial court has broad discretion to admit or exclude evidence

in a suppression hearing,” Bishop at ¶ 18, because the hearsay rule does not apply to

suppression hearings, it was arguably error for the trial court to exclude the testimony in

question on hearsay grounds. Any possible error, however, was harmless.

       {¶ 13} Crim.R. 52(A) defines harmless error in the context of criminal cases and

provides that: “Any error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded.”      Under the harmless-error standard of review, “the

government bears the burden of demonstrating that the error did not affect the substantial

rights of the defendant.” (Emphasis omitted.) State v. Perry, 101 Ohio St.3d 118, 2004-

Ohio-297, 802 N.E.2d 643, ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113

S.Ct. 1770, 123 L.Ed.2d 508 (1993). (Other citations omitted.) In most cases, the error

must have been prejudicial in order to be viewed as affecting substantial rights. State v.

Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, citing Olano at 734.

“Accordingly, Crim.R. 52(A) asks whether the rights affected are ‘substantial’ and, if so,
                                                                                           -8-


whether a defendant has suffered any prejudice as a result.” State v. Harris, 142 Ohio

St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36, quoting State v. Morris, 141 Ohio St.3d

399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24-25.

       {¶ 14} In this case, the trial court’s decision to prohibit Kinn’s trial counsel from

questioning Officer Thompson about the contents of Officer Campbell’s police report on

hearsay grounds did not prejudice Kinn. Regardless of what testimony might have been

elicited from Officer Thompson regarding Officer Campbell’s police report, the video

evidence still would have shown the two turn signal violations witnessed by the officers

on the night in question.

       {¶ 15} “[T]he observation of a minor traffic violation can provide reasonable

articulable suspicion that criminal activity is afoot, justifying a traffic stop.”   State v.

Williams, 2d Dist. Montgomery No. 28299, 2019-Ohio-5142, ¶ 26, citing State v. Mays,

119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8 and State v. Cannady, 2d

Dist. Montgomery No. 28115, 2019-Ohio-1543, ¶ 15. Therefore, because Kinn’s motion

to suppress was based solely on the legality of the traffic stop, the video evidence

showcasing the two turn signal violations firmly established that the officers were justified

in stopping the vehicle in question. In other words, the evidence would have established

the legality of the traffic stop even if the trial court had not prevented Officer Thompson

from testifying about the contents of Officer Campbell’s report.         Accordingly, Kinn

suffered no prejudice when the trial court erroneously prohibited that testimony at the

suppression hearing, making the trial court’s error harmless.

       {¶ 16} Kinn’s first assignment of error is overruled.
                                                                                         -9-


                              Second Assignment of Error

       {¶ 17} Under his second assignment of error, Kinn contends that his trial counsel

provided ineffective assistance during the suppression hearing by: (1) failing to challenge

the State’s objection to counsel’s questioning of Officer Thompson about the contents of

Officer Campbell’s police report; and (2) failing to subpoena Officer Campbell to testify at

the suppression hearing. We disagree.

       {¶ 18} In order to succeed on an ineffective assistance claim, a defendant must

establish: (1) his trial counsel’s performance was deficient; and (2) the deficient

performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The failure to make a

showing of either deficient performance or prejudice defeats a claim of ineffective

assistance of counsel. Strickland at 697.

       {¶ 19} To establish deficient performance, a defendant must show that his trial

counsel’s performance fell below an objective standard of reasonable representation. Id.

at 688; Bradley at 142. In evaluating counsel’s performance, a reviewing court “must

indulge in a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland at 689.

       {¶ 20} To establish prejudice, a defendant must show that there is “a reasonable

probability that, but for counsel’s errors, the proceeding’s result would have been

different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,

citing Strickland at 687-688 and Bradley at paragraph two of the syllabus.             “ ‘A

reasonable probability is a probability sufficient to undermine confidence in the
                                                                                           -10-


outcome.’ ” Bradley at 142, quoting Strickland at 694.

       {¶ 21} In this case, even if we presume that Kinn’s trial counsel performed

deficiently by failing to challenge the State’s hearsay objection and by failing to subpoena

Officer Campbell to testify at the suppression hearing, Kinn cannot establish any resulting

prejudice from these failures. Similar to our analysis under Kinn’s first assignment of

error, even if Kinn’s trial counsel had not failed in these respects, there was video

evidence of the turn signal violations that firmly established the legality of the traffic stop

in question. Therefore, regardless of trial counsel’s alleged failures, the trial court still

would have overruled Kinn’s motion to suppress based on the video evidence. As a

result, Kinn cannot establish that the outcome of the suppression proceeding would have

been different and thus cannot satisfy the prejudice prong of the Strickland test.

Accordingly, both of Kinn’s ineffective assistance claims lack merit.

       {¶ 22} Kinn’s second assignment of error is overruled.



                                Third Assignment of Error

       {¶ 23} Under his third assignment of error, Kinn contends that the trial court’s

denial of his motion to suppress was improper because the State failed to present any

evidence at the suppression hearing establishing that venue was proper in the trial court.

Kinn’s argument lacks merit.

       {¶ 24} In crafting his argument, Kinn overlooks the fact that a pretrial suppression

hearing is a proceeding that challenges the admissibility of evidence. Although the State

must prove venue by a reasonable doubt when seeking to obtain a conviction, State v.

Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 20, 22, the purpose
                                                                                        -11-


of a suppression hearing is not to obtain a conviction. Rather, “[t]he purpose of a pre-

trial suppression hearing is to determine whether evidence has been secured by the

government in violation of the defendant’s constitutional rights.” State v. Abraham, 5th

Dist. Richland No. CA-1812, 1979 WL 209663, *1 (Dec. 28, 1979). Therefore, the State

was not obligated to present evidence at the suppression hearing that supported a

conviction for the drug offenses at issue. See State v. Stocks, 2d Dist. Montgomery No.

18614, 2001 WL 369773, *3 (Apr. 13, 2001) (“[w]hether the State can sufficiently connect

[the defendant] to evidence of criminal activity for purposes of conviction is a matter the

fact-finder should resolve at trial; it is not something to be settled in a suppression

decision”) (Emphasis added.); State v. Baumgartner, 8th Dist. Cuyahoga Nos. 89190,

91207, and 91208, 2009-Ohio-624, ¶ 20 (“[i]t is well settled that venue is a fact to be

proven at trial”). The State was instead only required to present evidence supporting its

claim that the drug evidence in question was not procured in violation of Kinn’s

constitutional rights.

         {¶ 25} Even if the State had been required to present evidence of proper venue at

the suppression hearing, the record establishes that Kinn waived any challenge to venue

by entering a no contest plea. See State v. Schmidhammer, 10th Dist. Franklin No.

93APC10-1452, 1994 WL 232236, *2-3 (May 24, 1994). This is because a no contest

plea admits the truth of the facts alleged in the indictment, including the venue alleged

therein. State v. Magnone, 2d Dist. Clark No. 2015-CA-94, 2016-Ohio-7100, 72 N.E.3d

212, ¶ 46; State v. Johnson, 9th Dist. Medina No. 1744, 1989 WL 1672, *1 (Jan. 11,

1989).    Therefore, “[w]hen a defendant pleads no contest to an indictment, it is an

admission of the proper venue.” State v. Damron, 5th Dist. Licking No. 2005-CA-00012,
                                                                                        -12-


2005-Ohio-3923, ¶ 14, citing Schmidhammer and State v. Ulrich, 5th Dist. Stark No. CA-

7905, 1990 WL 15744 (Feb. 12, 1990). See also Baumgartner at ¶ 20.

      {¶ 26} Moreover, even if Kinn had not entered a no contest plea, and proof of

proper venue were required at the suppression hearing, Kinn waived all but plain error on

the issue of proper venue. This is because Kinn never challenged venue in the trial court

and raised the issue for the first time on appeal. State v. Weber, 2d Dist. Montgomery

No. 25508, 2013-Ohio-3172, ¶ 33, citing State v. Bridgeman, 2d Dist. Champaign No.

2010 CA 16, 2011-Ohio-2680, ¶ 9 (holding that the State’s failure to prove venue could

not be raised for the first time on appeal, but was nevertheless subject to review under

the plain error doctrine). Accord State v. Brock, 2d Dist. Clark No. 2018-CA-112, 2019-

Ohio-3195, ¶ 19-20. To establish plain error, Kinn must point to an obvious error that

affected the outcome of the proceedings below. State v. Rohrbaugh, 126 Ohio St.3d

421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6.

      {¶ 27} The Supreme Court of Ohio has held that “ ‘it is not essential that the venue

of the crime be proven in express terms, provided it be established by all the facts and

circumstances in the case, beyond a reasonable doubt, that the crime was committed in

the county and state as alleged in the indictment.’ ” Hampton, 134 Ohio St.3d 447, 2012-

Ohio-5688, 983 N.E.2d 324, at ¶ 19, quoting State v. Dickerson, 77 Ohio St. 34, 82 N.E.

969 (1907), paragraph one of the syllabus. “Circumstantial evidence may be used to

establish venue.” (Citation omitted.) State v. Brown, 2d Dist. Clark No. 2016-CA-53,

2017-Ohio-8416, ¶ 33. See, e.g., State v. Martin, 10th Dist. Franklin Nos. 02AP33 and

02AP34, 2002-Ohio-4769, ¶ 29-30 (where there was no direct testimony that the offense

at issue occurred in Franklin County, sufficient circumstantial evidence establishing venue
                                                                                         -13-


was found based on the responding police officer’s testimony that he was employed by

the city of Columbus, assigned to the Franklinton area, and dispatched to a specific

address in the area; and video evidence showed that the location of the offense was in

an urban setting and there was no evidence to suggest that the offense occurred outside

Franklin County); State v. Norton, 2d Dist. Greene No. 97 CA 112, 1998 WL 853022, *7-

8 (Dec. 11, 1998) (evidence that officers employed by the Greene County Sheriff's

Department investigated a burglary committed in Bath Township was sufficient to prove

venue in Greene County).

       {¶ 28} In this case, even if evidence of proper venue had been required at the

suppression hearing, there was no error, let alone plain error, in that regard. This is

because the testimony and evidence presented at the suppression hearing sufficiently

established that the criminal activity in question was committed in the city of Dayton,

Montgomery County, Ohio. Specifically, Officer Thompson testified that he is a city of

Dayton police officer and that on the night in question he was engaged in his police duties

doing road patrol.   Officer Thompson also testified that he was “patrolling the East

Second Street, Woodley area—Westview, Cherrywood, that whole area up there.”

Supp. Trans. p. 7. Following that testimony, the State presented a map of the area in

which Officer Thompson was patrolling. Officer Thompson then marked the areas on

the map where he observed the turn signal violations at issue and where he and Officer

Campbell effectuated the traffic stop that yielded the drug evidence. The map, which

was admitted into evidence as State’s Exhibit 1, displays an area that is within the city of

Dayton, Montgomery County, Ohio. In light of this evidence, and considering that there

was no evidence presented at the suppression hearing indicating that the traffic stop
                                                                                       -14-


occurred outside Officer Thompson’s police jurisdiction, we find that there was ample

evidence in the record to demonstrate that venue was proper in the trial court. Although

not explicitly argued by Kinn in his appellate brief, we also find that the aforementioned

evidence presented at the suppression hearing established that Officers Thompson and

Campbell had jurisdictional authority as city of Dayton police officers to effectuate the

traffic stop at issue.

       {¶ 29} Kinn’s third assignment of error is overruled.



                                       Conclusion

       {¶ 30} Having overruled all three assignments of error raised by Kinn, the

judgments of the trial court are affirmed.

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



TUCKER, P.J. and HALL, J., concur.




Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Brian A. Muenchenbach
Hon. Mary E. Montgomery
