State v. Baker

[Cite as State v. Baker, 2021-Ohio-1004.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-20-12

v.

KYLE M. BAKER, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court
Trial Court No. 19 CR 0111

Judgment Affirmed

Date of Decision: March 29, 2021

APPEARANCES:

Gene P. Murray for Appellant

Derek W. DeVine for Appellee
Case No. 13-20-12

ZIMMERMAN, J.

{¶1} Defendant-appellant, Kyle M. Baker (“Baker”), appeals the December

19, 2019 judgment entry denying his motion to suppress evidence; the February 25,

2020 judgment entry denying Baker’s motion to dismiss the indictment; and the

June 26, 2020 judgment entry of sentence by the Seneca County Common Pleas

Court. For the reasons that follow, we affirm.

{¶2} The genesis of this case is a series of drug-related events occurring

between February 12, 2019 and continuing through April 4, 2019. (Doc. No. 1).

{¶3} On June 6, 2019, the Seneca County Grand Jury indicted Baker on the

following criminal charges: Counts One, Two, Three, and Four, aggravated

trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1)(a), all fourth-degree

felonies; Count Five, aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1), (C)(1)(d), a first-degree felony; Count Six, aggravated trafficking in

drugs in violation of R.C. 2925.03(A)(1), (C)(1)(c), a second-degree felony; Count

Seven, aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2), (C)(1)(d),

a second-degree felony; Count Eight, aggravated trafficking in drugs in violation of

R.C. 2925.03(A)(2), (C)(1)(c), a third-degree felony; Count Nine, aggravated

trafficking in drugs in violation of R.C. 2925.03(A)(2), (C)(5)(d), a third-degree

felony; Count Ten, aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1), (C)(1)(c), a third-degree felony; Count Eleven, aggravated

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possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony;

and Count Twelve, having weapons while under disability in violation of R.C.

2923.13(A)(2), (B), a third degree felony.1 (Doc. No. 1). The indictment included

specifications as to Counts Five, Six, Seven, Eight, Nine, Ten, and Eleven. (Id.).

Baker appeared for arraignment on June 10, 2019 and entered pleas of not guilty.

(Doc. No. 6).

{¶4} On July 15, 2019, Baker filed a motion to suppress evidence arguing

that the affidavit supporting the issued search warrants failed to establish probable

cause.2 (Doc. No. 20). The State filed a memorandum in opposition to Baker’s

motion on July 22, 2019. (Doc. No. 21). After a substitution of trial counsel,

Baker’s new attorney filed a supplemental motion to suppress and/or in the

alternative motion to dismiss indictment on September 11, 2019. (Doc. Nos. 24, 25,

27, 28, 33). The State filed a memorandum in opposition to Baker’s supplemental

motion on September 15, 2019. (Doc. No. 34). Following a hearing on November

26, 2019, the trial court denied Baker’s motions to suppress. (Doc. Nos. 50, 51).

Nevertheless, Baker filed another motion to dismiss, which the trial court denied.

(Doc. Nos. 68, 69, 70).

1
Counts One, Two, Three, Four, Five, Six, Seven, and Ten involved Methamphetamine, Count Eight
Psilocyn, Count Nine Lysergic Acid Diethlamide (“LSD”), and Count Eleven Oxycodone. (Doc. No. 1).
The trial court subsequently amended the indictment to reflect the correct penalties in Counts Five, Six, and
Seven without objection from the defense. (Doc. Nos. 15, 16, 72, 73).
2
The search warrants under consideration involve the search of Baker’s motor vehicle pursuant to a search
warrant issued on February 14, 2019 and a search of Baker’s residence located at 575 E. S.R. 18, Apt. F12,
Tiffin, Ohio pursuant to a search warrant issued on April 4, 2019. (Doc. No. 20).

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{¶5} On February 12, 2020, Baker filed a motion to interview the

confidential informant (“CI”) prior to trial. (Doc. No. 63). The State filed a

memorandum in opposition. (Doc. No. 66). The trial court granted the defense’s

request. (Doc. No. 67). However, on February 21, 2020, Baker filed a motion to

dismiss the indictment because the State failed to produce the CI for his pretrial

interview. (Doc. No. 68). The State opposed Baker’s motion on February 24, 2021

arguing that it was premature likening it to a Crim.R. 29 motion. (Doc. No. 69).

The trial court denied Baker’s motion to dismiss the indictment on February 25,

2020. (Doc. No. 70).

{¶6} On February 27, 2020, Baker withdrew his pleas of not guilty and

entered no-contest pleas to the indictment as charged.3 (Doc. No. 75). The trial

court accepted Baker’s no-contest pleas, found him guilty, and ordered that a

presentenced investigation report (“PSI”) be prepared.4 (Doc. No. 76).

{¶7} On June 25, 2020, the trial court sentenced Baker to a mandatory

indefinite prison term of a minimum of 6 years in prison with a maximum indefinite

prison term of 21 years.5 (Doc. No. 80). The judgment entry of sentencing was

journalized on June 26, 2020. (Id.).

3
Baker executed an agreed forfeiture as to all specifications. (Doc. No. 74).
4
Prior to sentencing and on June 17, 2020, trial counsel filed an affidavit of indigency. (Doc. No. 79).
5
Baker was given 408 days’ jail-time credit. (Doc. No. 80). The trial court ordered mandatory-drug fines
in the amount of $37,500 as to Counts Five, Six, Seven, Eight, Nine, and Ten (which were waived) and non-
mandatory fines in the sum of $4,500. (Doc. Nos. 79, 80). The trial court also ordered Baker to pay all costs
of processing, supervision, confinement, indigent attorney’s fees, and prosecution. (Doc. No. 80). The trial
court then released and discharged Baker’s bond monies held on deposit less statutory fees, court costs, and

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{¶8} Baker filed his notice of appeal on July 21, 2020 and raises two

assignments of error, which we address separately. (Doc. No. 82).

Assignment of Error I

The Trial Court Abused Its Discretion When It Denied
Defendant-Appellant’s Supplemental Motion To Suppress,
And/Or In The Alternative, Motion To Dismiss The Indictment,
As The State’s Detectives Received What Was Tantamount To A
Confession To The Indicted Charges From The Defendant-
Appellant, In Consideration For Releasing Defendant-Appellant
From State Custody And In Consideration For And Of An
Effectual Oral Adhesion Contract, In Violation Of Due Process
Of Law, As Guaranteed To Defendant-Appellant’s Fundamental
And Substantial Right Against Self-Incrimination, As
Guaranteed To Defendant-Appellant By The Fifth Amendment
To The United States Constitution, Applicable To The States
Through The Due Process Clause Of The Fourteenth Amendment
To The United States Constitution.

{¶9} In his first assignment of error, Baker argues that the trial court erred

by denying his motion to suppress his confession.6 Specifically, Baker asserts that

his performance under the terms of his agreement to cooperate with law

enforcement was impossible, which was foreseeable to law enforcement at the time

he confessed to his crimes. We disagree.

restitution. (Id.). The trial court ordered the collection of a DNA specimen, notified Baker of his federal
felony-conviction-firearm disability, and ordered the forfeiture of all items and currency in the forfeiture
specifications under Counts Seven, Eight, Nine, Ten, and Eleven. (Id.).
6
Importantly, Baker is not challenging the trial court’s determination that there was probable cause
established by Detective Charles Boyer’s (“Det. Boyer”) affidavit supporting the execution of search
warrants on Baker’s vehicle and residence. (See Doc. Nos. 20, 51). Moreover, Baker is not challenging
whether his Miranda waivers were voluntary, intelligent, and knowing.

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Standard of Review

{¶10} “Appellate review of a motion to suppress presents a mixed question

of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At

a suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses. Id.,

citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). See State v. Carter, 72 Ohio

St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress, “an

appellate court must accept the trial court’s findings of fact if they are supported by

competent, credible evidence.” Burnside at ¶ 8, citing State v. Fanning, 1 Ohio

St.3d 19 (1982). With respect to the trial court’s conclusions of law, however, our

standard of review is de novo, and we must independently determine whether the

facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio

App.3d 706, 710 (4th Dist.1997).

Analysis

{¶11} Before we address the merits of Baker’s arguments, we must address

whether he has properly preserved his appeal. While there can be an appeal from

convictions following no-contest pleas, the issues that can be raised upon such an

appeal are limited, pursuant to Crim.R. 12(I), to include claims “that the trial court

prejudicially erred in ruling on a pretrial motion, including a pretrial motion to

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suppress evidence.” Because Baker challenges the trial court’s determination of his

pretrial motion to suppress evidence, his appeal is properly before us.

{¶12} Baker’s argument that he had an affirmative defense of impossibility

as to his promise to assist law enforcement in an undercover-narcotics operation is

without merit. To the extent that Baker is arguing that he entered into an adhesion

contract (i.e., a plea agreement with Detective Charles Boyer’s (“Det. Boyer”)), his

argument is specious. (Appellant’s Brief at 14). It is well established that a law

enforcement officer is not authorized to negotiate a plea with a person accused of a

crime, and such a plea-bargain agreement is unenforceable and of no effect. State

v. Mathews, 8 Ohio App.3d 145, 146 (10th Dist.1982); see also State v. Fulton, 66

Ohio App.3d 215, 218 (3d Dist.1990) (holding “that plea bargain agreements

entered into by police officers are unenforceable and inappropriate”); Evid.R. 410.

{¶13} However, even if we were to assume without deciding that there was

an enforceable oral contract, (which included an offer, acceptance, and

consideration) his argument still fails. “‘“Impossibility of performance is an

affirmative defense to a breach of contract claim. Impossibility of performance

occurs where, after the contract is entered into, an unforseen [sic] event arises

rendering impossible the performance of one of the contracting parties.”’” State v.

Curtis, 2d Dist. Greene No. 2008 CA 22, 2008-Ohio-5643, ¶ 31, quoting Hiatt v.

Giles, 2d Darke No. 1662, 2005-Ohio-6536, ¶ 34, quoting Skilton v. Perry Local

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School Dist. Bd. of Educ., 11th Lake No. 2001-L-140, 2002-Ohio-6702, at ¶ 26

(Dec. 6, 2002), aff’d, 102 Ohio St.3d 173, 2004-Ohio-2239. “‘Performance * * *

may be impracticable because it will involve a risk of injury to person or property *

* * that is disproportionate to the ends to be attained by performance.’” B-Right

Trucking Co. v. Warfab Field Machining and Erection Corp., 11th Dist. Trumbull

No. 2000-T-0072, 2001-Ohio-8724, 2001 WL 1602687 (Dec. 14, 2001), quoting

Restatement of the Law 2d, Contracts, Impracticability of Performance, Section

261, at 316 (2000). “Impracticability” means more than “impracticality.” Id. at 5.

A mere change in the degree of difficulty or expense does not amount to

impracticability. Id. A party is expected to use reasonable efforts to surmount

obstacles to performance, and performance is only impracticable if it is so in spite

of such efforts. Id. Importantly, the trial court determined “that the defendant could

not produce any evidence of his fulfilling his promise to help in apprehending his

source.” (Doc. No. 51). Put more plainly, he failed to perform entirely as

cooperation was the condition precedent to the State’s consideration.

{¶14} Indeed, Baker failed to cooperate with Det. Boyer’s investigation by

refusing to communicate with Det. Boyer even though Det. Boyer purchased Baker

a cell phone, which Baker later destroyed. (Nov. 26, 2019 Tr. at 18, 30-31).

Moreover, the crux of Baker’s argument is that Det. Boyer made certain promises

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to him, which Det. Boyer disputed.7 (Id. at 12-15, 17-21, 28, 32-33). Specifically,

Det. Boyer testified that Baker would get consideration (through the State) based on

Baker’s level of cooperation with law enforcement. (Id. at 23-24). Ultimately, the

trial court determined Det. Boyer’s testimony to be more credible (than Baker’s)

noting that Baker was not able recall even simple facts relevant to the case. (Doc.

No. 51). See Burnside at ¶ 8.

{¶15} Based on the foregoing and under the totality of the circumstances, we

conclude that the record supports that Baker did not cooperate with law enforcement

in any undercover-narcotics operation. Thus, the trial court’s findings are supported

by competent, credible evidence, and consequently, the trial court did not err by

denying Baker’s motion to suppress his confession.

{¶16} Accordingly, Baker’s first assignment of error is overruled.

Assignment of Error II

The Defendant-Appellant Was Denied His Fundamental And
Substantial Right To Confrontation Of Witnesses, When The
Trial Court Granted The Defendant-Appellant’s Motion To
Interview The State’s Confidential Informant Prior To Trial, And
The State Did Not Produce Its Confidential Informant To Be
Interviewed By Defendant-Appellant, Nor Could The State
Procure The State’s Confidential Informant For The Defendant-
Appellant To Cross-Examine At Trial, In Violation Of The
Confrontation Clause Of The Sixth Amendment To The United
States Constitution, Applicable To The States Through The Due
Process Clause Of The Fourteenth Amendment To The
Constitution Of The United States, And Also In Violation Of The

7
Baker testified that Det. Boyer stated, “the whole day would be a bad dream if I cooperated with the
investigation.” (Nov. 26, 2019 Tr. at 33).

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Confrontation Clause Of Article I, Section 10 Of The Constitution
Of The State Of Ohio.

{¶17} In his second assignment of error, Baker argues that he could not

receive a fair trial because he was not able to interview the CI prior to trial. In

particular, he argues that the trial court erred by not dismissing his indictment. We

disagree.

Standard of Review

{¶18} “‘A motion to dismiss charges in an indictment tests the sufficiency of

the indictment, without regard to the quantity or quality of evidence that may be

produced by either the State or the defendant.’” State v. Carpenter, 3d Dist. Seneca

No. 13-18-16, 2019-Ohio-58, ¶ 87, quoting State v. Balo, 3d Dist. Allen No. 1-10-

48, 2011-Ohio-3341, ¶ 35, citing State v. Eppinger, 8th Dist. Cuyahoga No. 85631,

2005-Ohio-4155, ¶ 37. “‘A reviewing court must examine the face of the charging

instrument to determine its sufficiency.’” Id., quoting id., citing State v. Egler, 3d

Dist. Defiance No. 4-07-22, 2008-Ohio-4053, ¶ 14, State v. Desote, 3d Dist. Putnam

Nos. 12-03-05 and 12-03-09, 2003-Ohio-6311, ¶ 8, and Eppinger at ¶ 37.

{¶19} We review a trial court’s denial of a motion to dismiss an indictment

under a de novo standard of review. Carpenter at ¶ 88, citing State v. Robertson,

3d Dist. Henry No. 7-14-16, 2015-Ohio-1758, ¶ 17. “‘“De novo review is

independent, without deference to the lower court’s decision.”’” Id., quoting id.,

quoting State v. Hudson, 3d Dist. Marion, 2013-Ohio-647, ¶ 27.

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Analysis

{¶20} Since Baker entered no-contest pleas and his motion to dismiss is not

enumerated under Crim.R. 12(I) as was his motion to suppress, we must look to

subsection (C) under Crim.R. 12 to determine if Baker has preserved this issue on

appeal. Under Crim.R. 12(C), a pretrial motion is defined as “any defense,

objection, evidentiary issue, or request that is capable of determination without the

trial of the general issue.” Hence, no-contest pleas do not preserve appellate review

of a trial court’s ruling on a pretrial motion where the issue raised by the motion

was not a “‘defense, objection, evidentiary issue, or request that is capable of

determination without the trial of the general issue.’” State v. Brock, 3d Dist. No.

5-06-27, 2006-Ohio-6681, ¶ 9, quoting State v. Watson, 10th Dist. Franklin No.

80AP-880, 1981 WL 3435, *2 (Aug. 27, 1991), citing Crim.R. 12(C). See also State

v. Evans, 2d Dist. No. 21669, 2007-Ohio-6587, ¶ 11. Furthermore, where a

defendant enters into a negotiated-plea bargain, and in turn, enters a no-contest plea

based upon an erroneous assumption (i.e., a mistake of law), joined in by the trial

court and the prosecution, that the plea will preserve his appellate rights to challenge

the trial court’s ruling on a pretrial issue, the plea bargain must be rescinded, and

the plea vacated.8 Brock at ¶ 10, 12. See also City of Columbus v. Sullivan, 4 Ohio

8
Here, there is no evidence that the parties engaged in plea negotiations. Baker pleaded no contest to the
indictment as charged agreeing to the forfeiture of all items and currency in the forfeiture specifications under
Counts Seven, Eight, Nine, Ten, and Eleven and was found guilty by the trial court. (Doc. No. 80); (See Doc.
No. 75). Moreover, even if there were evidence in the record to the contrary, we were not provided with the

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App.3d 7, 10 (1982); State v. Schubert, 3d Dist. Seneca No. 13-85-22, 1986 WL

14413, *1 (Dec. 22, 1986); City of Columbus v. Quinn, 10th Dist. No. 86AP-1079,

1987 WL 28458, *3 (Dec. 17, 1987).

{¶21} “As a general rule, the Ohio Rules of Criminal Procedure do not allow

for summary judgment on an indictment prior to trial.” State v. Certain, 4th Dist.

Ross No. 07CA3003, 2009-Ohio-148, ¶ 4, citing State v. Holder, 8th Dist. Cuyahoga

No. 89709, 2008-Ohio-1271, ¶ 5, and State v. Turic, 2d Dist. Montgomery Nos.

21453 and 21454, 2006-Ohio-6664, ¶ 11. Moreover, “‘premature declarations,’”

such as a pretrial motion to dismiss, “are strictly advisory and an improper exercise

of judicial authority.” State v. Tipton, 135 Ohio App.3d 227, 229 (1999), quoting

State v. Varner, 81 Ohio App.3d 85, 86 (1991) and Fortner v. Thomas, 22 Ohio

St.2d 13, 14 (1970). “[A] pretrial motion to dismiss can only raise matters that are

‘capable of determination without a trial of the general issue.’” Certain at ¶ 4,

quoting Crim.R. 12(C). A motion to dismiss a[n indictment] pursuant to Crim.R.

12(C) challenges the sufficiency of the [indictment] without regard to the quantity

or quality of the evidence to be produced by the State. State v. Stout, 3d Dist. No.

8-07-12, 2008-Ohio-161, ¶ 12, citing State v. Patterson, 63 Ohio App.3d 91, 95

(1989). “Normally, when a motion to dismiss requires examination of evidence

beyond the face of the indictment, it must be presented as a motion for acquittal at

transcripts of the change of plea or sentencing hearing. See App.R. 9(B)(3)-(5), (C), (D). Notably, Baker is
not seeking to withdraw his no-contest pleas on this basis.

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the close of the [S]tate’s case [under Crim.R. 29].” Certain at ¶ 5, citing State v.

Nihiser, 4th Dist. Hocking No. 03CA21, 2004-Ohio-4067, ¶ 10, Eppinger, 2005-

Ohio-4155, at ¶ 36, and State v. Link, 5th Dist. Knox No. 03 CA 7, 2003-Ohio-6798,

¶ 12.

{¶22} Here, Baker does not challenge the State’s compliance with Crim.R. 6

or 7. Rather, he challenges whether the State could produce its CI at trial. Hence,

where a pretrial motion to dismiss requires the trial court “to look beyond the face

of the [indictment] to the evidence and testimony that would be offered at trial,” the

motion is improper as a pretrial motion. See Certain, 2009-Ohio-148, at ¶ 5; Stout,

2008-Ohio-161, at ¶ 12.

{¶23} Under the facts before us, Baker sought a dismissal of the indictment

as a result of evidentiary issues related to hearsay and the unavailability of the

State’s witness (i.e., a CI). We conclude Baker’s motion to dismiss is the functional

equivalent to a motion in limine. Because Baker entered no-contest pleas and did

not lodge a proper objection at trial, his argument is waived.9 See State v. Miller,

3d Dist. Allen No. 1-18-17, 2018-Ohio-4648, ¶ 8-10; State v. Engle, 74 Ohio St.3d

525, 529 (1996) (Resnick, J., concurring) (“By entering a plea of no contest * * *,

9
To the extent that Baker argues that the State’s inability to procure the CI prior to trial violates the
Confrontation Clause, his argument is specious. See State v. Wickline, 50 Ohio St.3d 114, 118 (1990) (“The
Confrontation Clause is not a pretrial discovery device”); State v. Ruggles, 12th Dist. Warren Nos. CA2019-
05-038, CA2019-05-044, CA2019-05-045, & CA2019-05-46, 2020-Ohio-2886, ¶ 19.

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the defendant voluntarily waives the right to appeal the ruling on the motion [in

limine].”)10; State v. Brown, 38 Ohio St.3d 305 (1988), paragraph three of the

syllabus (“A denial of a motion in limine does not preserve error for review. A

proper objection must be raised at trial to preserve error.”); State v. Maurer, 15 Ohio

St.3d 239, 258-260 (1984). Even if we were to construe this as a motion for

acquittal, his argument fails for the same reason. See Tipton at 228-229.

{¶24} Accordingly, Baker’s second assignment of error is overruled.

{¶25} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr

10
Justice Resnick’s concurrence was joined by a majority of the court. Engle, 74 Ohio St.3d at 530.

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