Court of Appeals of Ohio, Fifth District, Muskingum
from the Court of Common Pleas, Case No. CR2016-0250
Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney By:
GERALD V. ANDERSON II Assistant Prosecuting Attorney
Defendant-Appellant JEFFERY M. BLOSSER
JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
1} Defendant-Appellant Todd A. Kopchak appeals the May 18,
2017 judgment of conviction and sentence of the Court of
Common Pleas, Muskingum County, Ohio. Plaintiff-Appellee is
the state of Ohio.
OF THE CASE
2} On August 3, 2016, the Muskingum County Grand Jury
returned an indictment charging appellant with two counts of
rape pursuant to R.C. 2907.02(A)(1)(c), felonies of the first
degree. A jury trial began on April 18, 2017, at the
conclusion of which appellant was convicted as charged.
Appellant was subsequently sentenced to eight years on each
count and ordered to serve the sentences concurrently.
3} On appeal, appellant raises a discovery issue. A
recitation of the facts which led to the charges is therefore
not necessary to our disposition of this appeal. The relevant
facts are as follow:
4} The Bureau of Criminal Investigation (BCI) conducted DNA
analysis of bodily fluids found on an article of
appellant's clothing, a standard submitted by appellant,
and swabs from the victim's rape kit. At trial, the BCI
criminalist who conducted the testing testified as to his
5} Appellant was initially represented by Attorney Mark
Kaido. Attorney Kaido retained Dr. Theodore Kessis, an expert
in the area of forensic DNA analysis to perform an
independent analysis of the results obtained by the BCI.
Kessis did not perform additional testing of the evidence.
Rather, he reviewed the procedures and methods utilized by
the BCI. In a one-page letter dated January 11, 2017, Kessis
opined the BCI procedures were accurately and reliably
6} Appellant subsequently fired Attorney Kaido and hired
Attorney Jeffery Blosser. On April 5, 2017, Attorney Blosser
filed a response to the state's request for discovery.
Item 4 of the response stated "The Defendant does not
intend to call an expert witness in this matter as set forth
in Crim.R. 16(K)."
7} On April 10, 2017, following an in-chambers pretrial which
is not a part of the record, Attorney Blosser filed the
one-page letter from Kessis with the trial court, under seal,
for determination by the court as to whether or not the
defense was required to provide the letter to the state.
8} On April 11, 2017, a hearing was held on the matter. The
state argued Attorney Kaido had stated he had hired an expert
witness, it believed Kessis would be an expert witness, and
that therefore it was therefore entitled to the letter
prepared by Kessis. Attorney Blosser, however, indicated he
had no intention to call ...