[Cite as State v. Kopchak, 2018-Ohio-1136.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :     JUDGES:
                                              :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :     Hon. William B. Hoffman, J.
                                              :     Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
TODD A. KOPCHAK                               :     Case No. CT2017-0036
                                              :
        Defendant-Appellant                   :     OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. CR2016-0250




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   March 26, 2018




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

D. MICHAEL HADDOX                                   JEFFERY M. BLOSSER
Prosecuting Attorney                                765 South High Street
By: GERALD V. ANDERSON II                           Columbus, OH 43206
Assistant Prosecuting Attorney
27 North Fifth Street, P. O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2017-0036                                                      2


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.
Muskingum County, Case No. CT2017-0036                                                      3


       {¶ 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 Kessis as a witness. The

trial court ordered defense counsel to provide the letter to the state.

       {¶ 9} At trial, over the objection of defense counsel, the state called Kessis to

testify in its case-in-chief. Kessis testified that the procedures and methods utilized by the

BCI were accurately and reliably carried out. He further testified that the findings were

consistent with the alleged facts surrounding the rape. Finally, again over defense

counsel’s objection, Kessis’ letter was admitted into evidence.

       {¶ 10} Appellant brings this appeal to challenge the trial court’s decision

compelling him to disclose to the state the letter authored by Kessis. He raises two

arguments:
Muskingum County, Case No. CT2017-0036                                                      4


                                                  I

       {¶ 11} "THE TRIAL COURT ERRED IN ORDERING THE DISCLOSURE TO THE

STATE OF A CONSULTING EXPERT WITNESS FOR THE DEFENSE IN VIOLATION

OF CRIM. R. 16(J)."

                                                 II

       {¶ 12} "THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF A

CONSULTING EXPERT FOR THE DEFENSE AND HIRED BY THE DEFENDANT'S

PREVIOUS COUNSEL BY THE STATE WHERE THE TESTIMONY'S PROBATIVE

VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE NEEDLESS PRESENTATION

OF CUMULATIVE EVIDENCE."

                                                I, II

       {¶ 13} Because they are interrelated, we address appellant’s assignments of error

together.

       {¶ 14} In his first assignment of error, appellant argues pursuant to Crim.R.

16(J)(1), the trial court erred in ordering the disclosure to the state of the letter authored

by Kessis, his consulting expert. In his second assignment of error, appellant argues the

trial court erred in permitting the state to call a defense-retained consulting expert when

the expert's testimony was needlessly cumulative pursuant to Evid.R. 403(B). We agree

with both arguments, but under the facts of this case, find the errors harmless.

       {¶ 15} An appellate court's standard of review on evidentiary and discovery

matters is an abuse of discretion. State v. Elliott, 5th Dist. Tuscarawas No.

2007AP070044, 2008-Ohio-5673 ¶ 23. An abuse of discretion is more than an error of
Muskingum County, Case No. CT2017-0036                                                   5


law and implies that the trial court acted “unreasonably, arbitrarily or unconscionably.”

Blackmore v. Blackmore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 16} Crim.R 16 governs criminal discovery and inspection. Crim.R. 16(H)

addresses a defendant's obligation to provide the prosecution with reciprocal discovery.

The rule states in relevant part:



       * * * The defendant shall provide copies or photographs, or permit the

       prosecuting attorney to copy or photograph, the following items related to

       the particular case indictment, information or complaint, and which are

       material to the innocence or alibi of the defendant, or are intended for use

       by the defense as evidence at the trial, or were obtained from or belong to

       the victim, within the possession of, or reasonably available to the

       defendant, except as provided in division (J) of this rule:

       (1) All laboratory or hospital reports, books, papers, documents,

       photographs, tangible objects, buildings or places;

       (2) Results of physical or mental examinations, experiments or scientific

       tests;

       (3) Any evidence that tends to negate the guilt of the defendant, or is

       material to punishment, or tends to support an alibi. However, nothing in

       this rule shall be construed to require the defendant to disclose information

       that would tend to incriminate that defendant;

       (4) All investigative reports, except as provided in division (J) of this rule;
Muskingum County, Case No. CT2017-0036                                                     6


       (5) Any written or recorded statement by a witness in the defendant’s case-

       in-chief, or any witness that it reasonably anticipates calling as a witness in

       surrebuttal.



       {¶ 17} Emphasis added.

       {¶ 18} Crim.R. 16(J) addresses items which are not subject to disclosure. These

items include materials “subject to work product protection,” including but not limited to

“reports, memoranda, or other internal documents made by the prosecuting attorney or

defense counsel, or their agents in connection with the investigation or prosecution or

defense of the case * * *” Crim.R. 16(J)(1). Emphasis added.

       {¶ 19} Crim.R. 16(K) addresses expert witness reports. That section provides:

An expert witness for either side shall prepare a written report summarizing the expert

witness’s testimony, findings, analysis, conclusions, or opinion, and shall include a

summary of the expert’s qualifications. The written report and summary of qualifications

shall be subject to disclosure under this rule no later than twenty-one days prior to trial,

which period may be modified by the court for good cause shown, which does not

prejudice any other party. Failure to disclose the written report to opposing counsel shall

preclude the expert’s testimony at trial.

       {¶ 20} The staff note for Crim.R. 16(K), however, specifically states the division

does not require disclosure of “* * * written reports of consulting experts who are not being

called as witnesses.”

       {¶ 21} The state argues that appellant’s first attorney requested supplemental

discovery from the state specifically for the purpose of providing the same to Kessis so
Muskingum County, Case No. CT2017-0036                                                      7


that he could write a report. The state further argues appellant’s first attorney advised the

state of a document composed by Kessis detailing his review and analysis of the BCI’s

procedures and methods. None of this, however, changes the fact that Kessis' report to

defense counsel was not discoverable if the counsel representing appellant at trial had

no intention to call Kessis as a witness. Whatever strategy appellant’s first attorney had

in mind had no bearing on the trial strategy of appellant’s second attorney.

       {¶ 22} In State v. Fairchild, 2nd Dist. Darke App. No. 1481, 1999WL9424491 (Aug.

29, 1999) *6, appellant raised an ineffective assistance of counsel claim because the state

was permitted to call a defense-retained expert in its case-in-chief without objection from

the defense. Although the court ultimately found appellant had failed to establish prejudice

as required to meet the second prong of an ineffective assistance of counsel claim, the

Second District Court of Appeals nonetheless found the admission of the testimony a

“contravention of appellant’s attorney-client privilege” and further noted:



       * * *[W]e believe the use of such testimony contravenes the work product

       privilege enjoyed by the defendant. We recognize that if the State were

       permitted to call defense retained experts to testify against the defendant,

       defense attorneys would be deterred from seeking out such experts and

       developing work product on behalf of their clients.



       {¶ 23} Although appellant here does not specifically raise attorney-client privilege,

Fairchild is nonetheless instructive as Crim.R.16 (J)(1) is designed to protect the attorney-

client relationship. The realities of litigation in our adversary system, dictate that defense
Muskingum County, Case No. CT2017-0036                                                      8


counsel must often “* * * rely on the assistance of investigators and other agents in the

compilation of materials in preparation for trial. It is therefore necessary that the doctrine

protect material prepared by agents for the attorney as well as those prepared by the

attorney himself.” United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d

141 (1975).

       {¶ 24} We find the trial court's decision compelling the defense to disclose a letter

from a consulting expert was error. We further find that permitting the state to call a

defense-retained DNA expert to present evidence cumulative to its own DNA expert was

error. We find, however, based on the evidence in this matter that these errors were

harmless.

       {¶ 25} In State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153,

the Ohio Supreme Court considered the applicable standard to determine harmless error

where a criminal defendant seeks a new trial due to the erroneous admission of evidence

under Evid.R. 404(B). The court summarized its analysis in the subsequent decision of

State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37:



       Recently, in Morris, a four-to-three decision, we examined the harmless-

       error rule in the context of a defendant's claim that the erroneous admission

       of certain evidence required a new trial. In that decision, the majority

       dispensed with the distinction between constitutional and non-constitutional

       errors under Crim.R. 52(A). Id. at ¶ 22-24. In its place, the following analysis

       was established to guide appellate courts in determining whether an error

       has affected the substantial rights of a defendant, thereby requiring a new
Muskingum County, Case No. CT2017-0036                                                    9


       trial. First, it must be determined whether the defendant was prejudiced by

       the error, i.e., whether the error had an impact on the verdict. Id. at ¶ 25 and

       27. Second, it must be determined whether the error was not harmless

       beyond a reasonable doubt. Id. at ¶ 28. Lastly, once the prejudicial evidence

       is excised, the remaining evidence is weighed to determine whether it

       establishes the defendant's guilt beyond a reasonable doubt.



       {¶ 26} Id. at ¶ 29, 33.

       {¶ 27} The victim in this matter testified that appellant raped her digitally and

vaginally. T. 282-283. Male specific Y-STR testing of the vaginal and perianal swabs from

the victim's rape kit could not exclude appellant as the source of the male DNA present

on the swabs. A criminalist from the BCI testified that a statistic of 1 in 9000 is a strong

statistic for Y-STR testing. The perianal swab resulted in a statistic of 1 in 1,786 and the

vaginal swab produced a 1 in 2500 statistic. T. 231-233.

       {¶ 28} DNA testing was also completed on a pair of shorts worn by appellant on

the evening in question. Because the shorts appeared to be reversible, the crotch area of

both sides of the shorts were tested. Each side of the shorts contained a mixture of DNA

belonging to appellant and a second person. The statistical possibility that the DNA

foreign to appellant could be anyone other than the victim was 1 in 25 billion, 60 million

on one side of the shorts, and more than 1 in one trillion on the other side of the shorts.

T. 253-254. The criminalist further testified that the DNA on one side of the shorts was

25% female and on the other side was 40% female and that this was a significant

percentage to find on an item belonging to a male. T. 238.
Muskingum County, Case No. CT2017-0036                                                   10


       {¶ 29} The forensic evidence in this case is strong, and the victim was able to

provide the jury with a detailed account of the rape. After a thorough review of the record,

we find the remaining properly introduced evidence overwhelmingly establishes

defendant's guilt.

       {¶ 30} Appellant’s two assignments of error are overruled.


By Wise, Earle, J.

Gwin, P.J. and

Hoffman, J. concur.

EEW/rw 315
