[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 

v. 

JASON P. KINN 

Defendant-Appellant 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 28336 

Trial Court Case Nos. 2018-CR-826 

and 2018-CR-2276 

(Criminal Appeal from 

Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

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 crossexamine 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 pretrial 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. CA7905, 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