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State v. Kopchak

Court of Appeals of Ohio, Fifth District, Muskingum

March 26, 2018

STATE OF OHIO Plaintiff-Appellee
v.
TODD A. KOPCHAK Defendant-Appellant

          Appeal from the Court of Common Pleas, Case No. CR2016-0250

          For Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney By: GERALD V. ANDERSON II Assistant Prosecuting Attorney

          For Defendant-Appellant JEFFERY M. BLOSSER

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          WISE, EARLE, 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.

         STATEMENT 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 findings.

         {¶ 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 conducted.

         {¶ 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 ...


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