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State of Ohio v. Matthew C. Kulchar

September 29, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MATTHEW C. KULCHAR, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Harsha, P.J.

Cite as State v. Kulchar,

DECISION AND JUDGMENT ENTRY

{¶1} A jury found Matthew C. Kulchar guilty of complicity to tampering with evidence after Kulchar had an unwitting friend dispose of the boxer shorts he wore during an alleged sexual assault. In this appeal Kulchar contends that the trial court erroneously instructed the jury on the complicity charge. Specifically, he complains that the court instructed the jury that the "innocent person" he allegedly caused to get rid of the boxer shorts did not have to have the mens rea for the crime of tampering with evidence. However, Kulchar appears to acknowledge that the court gave a legally accurate instruction on this point and fails to demonstrate how the court abused its discretion in the wording or format of the instruction. Thus, we reject this argument.

{¶2} Kulchar also complains that the court gave an erroneous instruction on the definition of an "investigation." To obtain a conviction on the complicity charge, the State had to show Kulchar knew that an official proceeding or investigation was in progress, or was about to be or likely to be instituted when he caused the innocent person to get rid of the boxer shorts. However, the court again gave a legally accurate instruction that generally explained the term "investigation" and then gave an example of an "official investigation." Moreover, Kulchar fails to show how the court abused its discretion in wording or formatting the instruction. Therefore, we also reject this argument.

{¶3} Next, Kulchar claims that the trial court erred when it refused to instruct the jury on complicity to obstructing official business because it constitutes a lesser included offense of complicity to tampering with evidence. However, a defendant could destroy, conceal or remove evidence with the purpose of impairing its value or availability as evidence in an official proceeding or investigation (i.e. tamper with evidence) without actually hampering or impeding a public official in the performance of his duties (i.e. obstructing official business). Because a defendant could commit the "greater offense" (tampering) without committing the "lesser offense" (obstruction), complicity to obstructing official business cannot be a lesser included offense of complicity to tampering with evidence. Therefore, the court did not err in refusing to give the instruction.

{¶4} In addition, Kulchar claims that his conviction was against the manifest weight of the evidence and that insufficient evidence supports his conviction because the boxer shorts did not constitute "evidence." However, the State need not show that the shorts would have actually contained evidence. Rather, it only needed to prove that Kulchar instructed his friend to get rid of the shorts with the purpose of impairing their value or availability as evidence. Because the State's version of events supported such a conclusion, we cannot say that the jury clearly lost its way and created a manifest miscarriage of justice. Therefore, Kulchar's conviction was not against the manifest weight of the evidence and was supported by sufficient evidence.

{¶5} Next, Kulchar argues that the trial court erred when it denied his "motion for mistrial" based on the State's failure to disclose inconsistent statements Reddick made prior to the start of trial. Kulchar actually made a motion to dismiss the charges. However, we review a trial court's denial of either type of motion for an abuse of discretion. Here, the timing of the State's disclosures did not violate former Crim.R. 16 or the decision of the United States Supreme Court in Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Therefore, we find that the court did not abuse its discretion in denying Kulchar's motion.

{¶6} In addition, Kulchar contends that his sentence is contrary to law because the court failed to adequately consider R.C. 2929.11 and R.C. 2929.12 when it sentenced him. However, the court had no obligation to make specific findings concerning the various factors in these statutes and its sentencing entry expressly states that the court considered the relevant statutory provisions. Because Kulchar cites no other failure of the trial court to comply with the "applicable rules and statutes," his sentence is not clearly and convincingly contrary to law.

{¶7} Finally, Kulchar claims that the trial court abused its discretion when it found that he was not amenable to community control and sentenced him to three years in prison. However, the court cited valid reasons for Kulchar's sentence. And contrary to Kulchar's contentions, the record does not support a finding that the court imposed the prison term to punish him for rape because the court believed the jury erroneously acquitted him of that charge. We cannot reach such a conclusion on mere speculation. The trial court's decision to sentence Kulchar to three years in prison was not unreasonable, arbitrary, or unconscionable. Accordingly, we affirm the trial court's judgment.

I. Facts

{¶8} The Athens County Grand Jury indicted Kulchar on one count of rape, one count of kidnapping, and one count of tampering with evidence. The State ultimately pursued a complicity to tampering with evidence charge instead of the principal offense of tampering with evidence. See R.C. 2923.03(F). A jury found Kulchar not guilty of rape and kidnapping but found him guilty of complicity to tampering with evidence, in violation of R.C. 2923.03(A)(4), a third-degree felony.

{¶9} At trial, the State claimed that early one morning Kulchar forced Ashley Reddick to engage in sexual conduct with him over the course of several hours. Reddick testified that she had her "period" at the time and told Kulchar that in an effort to stop him. However, Kulchar forced her to have vaginal intercourse anyway, and in the process pushed the tampon she had in deep into her vagina, causing pain. She pleaded with him to let her go to the bathroom to remove the tampon. Kulchar initially refused but eventually took her to the bathroom. Kulchar admitted that he and Reddick engaged in sexual conduct but claimed that it was consensual. Kulchar claimed that Reddick never mentioned her period and testified that he would not have had sex with Reddick had she been on her period. Kulchar denied seeing any blood when he and Reddick had intercourse. Although Reddick's sheets from the incident with Kulchar had stains she claimed were blood, the State did not have the sheets tested.

{¶10} Kyle Ruddy, Kulchar's college roommate, testified that the day of the alleged rape Kulchar told Ruddy that he had sex with Reddick for hours. In the evening, Kulchar sent Ruddy a text message asking him to throw Kulchar's SpongeBob SquarePants boxers in the trash. Ruddy showed the text to a friend, Jeffrey Kolada, and they laughed because they thought the message was ridiculous. Ruddy thought Kulchar was joking, and responded via text, "[W]hat?" Kulchar responded, "[D]o it." Ruddy testified that he went to the room he shared with Kulchar, put the boxers in a trash bag, and put the bag in the dumpster behind their dorm. Kulchar later texted Ruddy, "[D]one?" Ruddy responded, "[Y]es." Ruddy testified that he did not see any stains or blood on the boxers. When Ruddy learned about Reddick's allegations, he immediately told police what happened.

{¶11} Unbeknownst to Ruddy, Kulchar had been arrested and had one hand cuffed to a chair at the Ohio University Police Department when he sent these text messages. At trial, Kulchar admitted that he sent the texts, but he denied knowing that he had been suspected of or arrested for Reddick's rape at the time. Kulchar said he thought the arrest might be related to marihuana since he and Reddick used the drug before having intercourse. When Lieutenant Christopher Johnson interviewed him prior to the arrest, Kulchar tried to "dance[ ] around" Johnson's questions about marihuana use.

{¶12} However, Kulchar admitted that when the OUPD interviewed him prior to his arrest, Lieutenant Johnson asked him a number of questions about his sexual contact with Reddick. Johnson asked Kulchar if Reddick had her period during their encounter. Johnson asked him about the underwear he wore with Reddick, and Kulchar told him he had on plaid boxer shorts. Kulchar told Johnson that he would bring the boxers in the next day. At one point during the interview, Johnson asked Kulchar if he wanted to change his story because another officer could not locate the condom he claimed to use with Reddick in the location he said he put it. After his arrest, Kulchar remembered he had in fact worn the SpongeBob SquarePants boxers. Instead of correcting the misstatement, Kulchar claimed he texted Ruddy to get rid of the boxers to avoid the appearance that he was a liar.

{¶13} After the jury found Kulchar guilty of the complicity charge and the trial court sentenced him, this appeal followed.

II. Assignments of Error

{¶14} Kulchar assigns the following errors for our review:

ASSIGNMENT OF ERROR NO. 1: The trial court erred to the prejudice of defendant in failing to impose a sentence consistent with the principles and purposes of sentencing under Ohio R.C. §2929.11 and proper consideration of the seriousness in [sic] recidivism factors under Ohio R.C. §2929.12.

ASSIGNMENT OF ERROR NO. 2: The trial court erred to the prejudice of defendant, and in violation of his rights under the 14th amendment to the Constitution of the United States, by entering judgment against the defendant on the charge of Complicity to Tampering with Evidence, as the evidence was insufficient to sustain the conviction, or, in the alternative, the conviction was against the manifest weight of the evidence.

ASSIGNMENT OF ERROR NO. 3: The trial court erred in overruling Appellant's motion for mistrial due to prosecutor misconduct which occurred during the trial and which deprived Appellant his constitutional right to due process.

ASSIGNMENT OF ERROR NO. 4: The trial court erred to the prejudice of the Defendant and in violation of his rights under the 14th amendment to the Constitution of the United States by failing to instruct the jury on the lesser included offense of Obstruction of Official Business.

ASSIGNMENT OF ERROR NO. 5: The trial court erred to the prejudice of Defendant and in violation of his rights under the 14th amendment to the Constitution of the United States, and in the trial court's jury instructions concerning the Complicity to Tampering with Evidence [charge].

For ease of analysis, we will address Kulchar's assignments of error out of order.

III. Jury Instructions on Complicity to Tampering with Evidence

{¶15} In his fifth assignment of error, Kulchar contends that the trial court erred when it gave the jury the State's requested instructions on the complicity to tampering with evidence charge. Generally, a trial court should give requested jury instructions if they are "correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction." Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828, quoting Markus & Palmer, Trial Handbook for Ohio Lawyers (3 Ed.1991) 860, Section 36:2. Moreover, R.C. 2945.11 requires a trial court to charge the jury with all the law required to return a verdict. Our review concerning whether jury instructions correctly state the law is de novo. State v. Brown, Athens App. No. 09CA3, 2009-Ohio-5390, at ¶34. However, reversible error should not be predicated upon one phrase or one sentence in a jury charge; instead, a reviewing court must consider the jury charge in its entirety. State v. Porter (1968), 14 Ohio St.2d 10, 13, 235 N.E.2d 520. Moreover, if an instruction correctly states the law, its precise wording and format are within the trial court's discretion. Brown at ¶34. To constitute an abuse of discretion, the trial court's decision must be unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.

{¶16} R.C. 2923.03, the complicity statute, provides:

(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

(4) Cause an innocent or irresponsible person to commit the offense.

(B) It is no defense to a charge under this section that no person with whom the accused was in complicity has been convicted as a principal offender.

{¶17} R.C. 2921.12(A), the tampering with evidence statute, states:

(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be ...


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