[Cite as State v. Kulchar, 2015-Ohio-3703.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ATHENS COUNTY

STATE OF OHIO,                                     :      Case No. 10CA6
                                                   :
        Plaintiff-Appellee,                        :      AMENDED
                                                   :      DECISION AND
        v.                                         :      JUDGMENT ENTRY
                                                   :
MATTHEW C. KULCHAR,                                :
                                                   :      RELEASED: 9/9/2015
        Defendant-Appellant.                       :

______________________________________________________________________
                            APPEARANCES:

K. Robert Toy, TOY LAW OFFICE, Athens, Ohio, for appellant.

C. David Warren, ATHENS COUNTY PROSECUTOR, and George J. Reitmeier,
ATHENS COUNTY ASSISTANT PROSECUTOR, Athens, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶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
Athens App. No. 10CA6                                                                        2


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
Athens App. No. 10CA6                                                                           3


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 A.R. 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
Athens App. No. 10CA6                                                                     4


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 A.R. to

engage in sexual conduct with him over the course of several hours. A.R. 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. A.R. initially refused but eventually took her

to the bathroom. Kulchar admitted that he and A.R. engaged in sexual conduct but

claimed that it was consensual. Kulchar claimed that A.R. never mentioned her period

and testified that he would not have had sex with A.R. had she been on her period.

Kulchar denied seeing any blood when he and A.R. had intercourse. Although A.R.’s

sheets from the incident with Kulchar had stains she claimed were blood, the State did
Athens App. No. 10CA6                                                                     5


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 A.R. 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 A.R.’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 A.R.’s rape at the time. Kulchar said he

thought the arrest might be related to marihuana since he and A.R. 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 A.R. Johnson asked Kulchar if A.R. had her period during their encounter.
Athens App. No. 10CA6                                                                      6


Johnson asked him about the underwear he wore with A.R., 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 A.R. 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.
Athens App. No. 10CA6                                                                        7



       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:
Athens App. No. 10CA6                                                                       8


      (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 instituted, shall do any of the
      following:

      (1) Alter, destroy, conceal, or remove any record, document, or thing, with
      purpose to impair its value or availability as evidence in such proceeding
      or investigation[.]

                                           ***
      {¶18} The trial court gave the jury the following instructions on the complicity to

tampering with evidence charge:

            The innocent person did not have to have the mental elements of
      purpose or knowingly.

             * * * The term “investigation” is to be considered in its ordinary
      sense and given its common ordinary meaning. An “official investigation”
      includes any investigation conducted by a police officer in his official
      capacity. * * *

      {¶19} Kulchar complains that the trial court erred when it instructed the jury that

the “innocent person,” i.e. Ruddy, who Kulchar allegedly caused to tamper with

evidence “did not have to have the mental elements of purpose or knowingly.” Innocent

means: “Free from guilt; acting in good faith and without knowledge of incriminatory

circumstances, or of defects or objections.” Black’s Law Dictionary (Abridged 6.Ed.

1991), 542. Thus an innocent person would include one without the mens rea to
Athens App. No. 10CA6                                                                                    9


commit a crime, i.e. a person without knowledge of incriminatory circumstances.

       {¶20} Kulchar appears to acknowledge that the court made an accurate

statement of law, noting “[i]f the person was an innocent or irresponsible, how could he

knowingly and purposely commit the crime.” (Appellant’s Br. 25). Nevertheless,

Kulchar complains that the instruction somehow constituted error because it was

redundant, confused the jury, and led the jury astray. We fail to see how the court’s

legally accurate instruction, which in essence elaborated on the meaning of the term

“innocent,” misled the jury. Therefore, we conclude the court did not abuse its

discretion in selecting the wording or format of the instruction.1

       {¶21} Kulchar also complains that after the court instructed the jury that the term

“investigation” was “to be considered in its ordinary sense and given its common

ordinary meaning[,]” it erroneously told the jury that “[a]n ‘official investigation’ includes

any investigation conducted by a police officer in his official capacity.” According to

Kulchar, by adding this language about a police officer’s investigation to the instruction,

the court “took away from the minds of the jury the fact that they could use their ordinary

sense and give the word investigation its common, ordinary meaning.” Kulchar

contends that the court “in fact” told the jury that “anything a police officer does while he

is in uniform is an investigation.”

       {¶22} We disagree with Kulchar’s interpretation of the court’s instruction. The

court did not tell the jury that anything a police officer does in uniform is an investigation.

Nor did the court contradict its instruction that the word investigation should be

considered in its ordinary sense and given its common meaning. Kulchar’s argument

1
 Kulchar also tries to argue that the State admitted at trial that it “could not prove the offense” of
complicity to tampering with evidence. However, the State merely indicated that Ruddy did not have the
mens rea to commit the crime of tampering with evidence himself, i.e. he was an “innocent person.”
Athens App. No. 10CA6                                                                                             10


confuses the word “investigation” with the phrase “official investigation.” The court

generally instructed the jury on the meaning of the word “investigation.” Then the court

gave the jury an example of an “official investigation” that relied in part on the court’s

instruction on the word “investigation.”2 We fail to see how an investigation (as that

term is commonly used) conducted by a police officer in his official capacity would not

qualify as an “official investigation.” We find no legal error in the court’s instruction, nor

do we find any abuse of discretion in the court’s wording or formatting of the instruction.

We overrule Kulchar’s fifth assignment of error.

                           IV. Jury Instruction on Lesser Included Offense

         {¶23} In his fourth assignment of error, Kulchar contends that the trial court

erred when it refused to instruct the jury on a lesser included offense of complicity to

tampering with evidence. In reviewing a trial court’s decision on whether to give a jury

instruction on a lesser included offense, we employ a two-tiered analysis. State v.

Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889. First, we must

determine whether one offense is in fact a lesser included offense of the charged

offense. Id. at ¶26. This presents a question of a law we review de novo. State v.

Braun (Apr. 21, 1997), Washington App. No. 95CA41, 1997 WL 200719, at *2. In State

v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, the Supreme Court of Ohio set out

a three-part test for courts to make this determination, and in Evans, the court clarified

that test. One offense is a lesser included offense of another where: (1) one offense

carries a greater penalty than the other; (2) some element of the greater offense is not


2
  In his brief, Kulchar states that “[t]here was no definition of public official in the court’s instruction to [his]
jury.” (Appellant’s Br. 25). It is unclear whether Kulchar claims that this is an error, but in any event, the
court did not use the phrase “public official” in its instruction on the complicity to tampering with evidence
charge. Therefore, the court had no reason to define it.
Athens App. No. 10CA6                                                                     11


required to prove commission of the lesser offense; and (3) the greater offense as

statutorily defined cannot be committed without the lesser offense as statutorily defined

also being committed. Evans at paragraph two of the syllabus. Unless all three

components are satisfied, we do not proceed to the second tier of the analysis.

       {¶24} Kulchar argues that obstructing official business is a lesser included

offense of tampering with evidence, so the court should have given the jury a complicity

instruction on both offenses. R.C. 2921.12(A) defines tampering with evidence as:

       (A) No person, knowing that an official proceeding or investigation is in
       progress, or is about to be or likely to be instituted, shall do any of the
       following:

       (1) Alter, destroy, conceal, or remove any record, document, or thing, with
       purpose to impair its value or availability as evidence in such proceeding
       or investigation[.]

       {¶25} R.C. 2921.31(A) defines how a person commits the crime of obstructing

official business:

       No person, without privilege to do so and with purpose to prevent,
       obstruct, or delay the performance by a public official of any authorized act
       within the public official’s official capacity, shall do any act that hampers or
       impedes a public official in the performance of the public official’s lawful
       duties.

       {¶26} As the Fifth District explained in State v. Dotson (Mar. 11, 2002), Stark

App. No. 2001CA00165, 2002-Ohio-1132, 2002 WL 391690, at *3:

       [O]bstructing official business is not a lesser included offense of tampering
       with evidence. [Deem] requires that the greater offense cannot be
       committed without the offender committing the lesser offense. An offender
       can commit the offense of tampering with evidence without violating the
       obstructing official business statute. One could destroy, conceal or
       remove evidence with the purpose of impairing a proceeding or
       investigation without actually hampering or impeding a public official in the
       performance of his duty.

       {¶27} In other words, a defendant must succeed at hampering or impeding a
Athens App. No. 10CA6                                                                       12


public official in the performance of his lawful duties to be found guilty of obstructing

official business. But a defendant need not succeed at impairing an item’s value or

availability as evidence for an official proceeding or investigation to commit the crime of

tampering with evidence. Because Kulchar’s argument fails part of the Deem test,

obstructing official business is not a lesser included offense of tampering with evidence.

       {¶28} To the extent Kulchar argues that Evans renders Dotson inapplicable, he

is mistaken. In phrasing the components of the lesser included offense analysis, the

Deem Court stated in part that a court had to find that “the greater offense cannot, as

statutorily defined, ever be committed without the lesser offense, as statutorily defined,

also being committed[.]” Deem, supra, at paragraph three of the syllabus (Emphasis

added). The Evans court clarified Deem by deleting the word “ever” from this phrasing.

Evans, supra, at ¶25. The Evans Court stressed that:

       This clarification does not modify the Deem test, but rather eliminates the
       implausible scenarios advanced by parties to suggest the remote
       possibility that one offense could conceivably be committed without the
       other also being committed. Deem requires a comparison of the elements
       of the respective offenses in the abstract to determine whether one
       element is the functional equivalent of the other. If so, and if the other
       parts of the test are met, one offense is a lesser included offense of the
       other.

Id.
       {¶29} We fail to see how the Evans modification invalidates the rationale in

Dotson. The Dotson court compared the elements of the respective offenses in the

abstract. Dotson at *3. Contrary to what Kulchar’s primarily fact-based argument

implies, this is the correct approach under Deem and the Evans clarification. In

deciding whether to give a lesser included offense instruction, the court only looks at the

specific facts surrounding the alleged offense after it determines whether the
Athens App. No. 10CA6                                                                      13

Deem/Evans test is satisfied. Evans at ¶13. And “[i]f the evidence is such that a jury

could reasonably find the defendant not guilty of the charged offense, but could convict

the defendant of the lesser included offense, then the judge should instruct the jury on

the lesser included offense.” Id., quoting Shaker Hts. v. Mosely, 113 Ohio St.3d 329,

2007-Ohio-2072, 865 N.E.2d 859, at ¶11.

       {¶30} Kulchar does not contend that the Dotson court relied on an “implausible

scenario[ ] advanced by parties to suggest the remote possibility that one offense could

conceivably be committed without the other also being committed.” Moreover, it is

certainly plausible that one could, under the mistaken belief that an item has evidentiary

value, destroy, conceal or remove that item with the purpose of impairing a proceeding

or investigation without actually hampering or impeding a public official in the

performance of his duty. Therefore, we conclude that the trial court did not err when it

refused to instruct the jury on complicity to obstructing official business. We overrule

Kulchar’s fourth assignment of error.

                         V. Manifest Weight of the Evidence and
                              Sufficiency of the Evidence

       {¶31} In his second assignment of error, Kulchar contends that his conviction

was against the manifest weight of the evidence and that insufficient evidence exists to

support his conviction. “When an appellate court concludes that the weight of the

evidence supports a defendant’s conviction, this conclusion necessarily includes a

finding that sufficient evidence supports the conviction.” State v. Puckett, Ross App.

No. 10CA3153, 2010-Ohio-6597, at ¶34, citing State v. Pollitt, Scioto App. No.

08CA3263, 2010-Ohio-2556. “Thus, a determination that [a] conviction is supported by

the weight of the evidence will also be dispositive of the issue of sufficiency.” Id.,
Athens App. No. 10CA6                                                                       14

quoting State v. Lombardi, Summit App. No. 22435, 2005-Ohio-4942, at ¶9, in turn,

quoting State v. Roberts (Sept. 17, 1997), Lorain App. No. 96CA006462, 1997 WL

600669. Therefore, we first consider whether Kulchar’s conviction was against the

manifest weight of the evidence.

       {¶32} “In determining whether a criminal conviction is against the manifest

weight of the evidence, an appellate court must review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed.” State v. Brown, Athens App. No. 09CA3, 2009-Ohio-5390, at ¶24, citing

State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. A

reviewing court “may not reverse a conviction when there is substantial evidence upon

which the trial court could reasonably conclude that all elements of the offense have

been proven beyond a reasonable doubt.” State v. Johnson (1991), 58 Ohio St.3d 40,

42, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304,

at paragraph two of the syllabus.

       {¶33} Even in acting as a thirteenth juror we must still remember that the weight

to be given evidence and the credibility to be afforded testimony are issues to be

determined by the trier of fact. State v. Frazier, 73 Ohio St.3d 323, 339, 1995-Ohio-235,

652 N.E.2d 1000, citing State v. Grant, 67 Ohio St.3d 465, 477, 1993-Ohio-171, 620

N.E.2d 50. The fact finder “is best able to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio
Athens App. No. 10CA6                                                                     15


St.3d 77, 80, 461 N.E.2d 1273 (per curiam). Thus, we will only interfere if the fact finder

clearly lost its way and created a manifest miscarriage of justice. Moreover, “[t]o

reverse a judgment of a trial court on the weight of the evidence, when the judgment

results from a trial by jury, a unanimous concurrence of all three judges on the court of

appeals panel reviewing the case is required.” Thompkins at paragraph four of the

syllabus, construing and applying Section 3(B)(3), Article IV of the Ohio Constitution.

        {¶34} Kulchar claims that his conviction was against the manifest weight of the

evidence because Ruddy testified that he did not see any stains or blood on the boxers,

so the boxers did not constitute “evidence.” Kulchar also appears to argue that even if

the boxers did contain physical evidence, that fact would have been irrelevant to the

police investigation. He argues that law enforcement did not have other items, like

A.R.’s sheets, tested for body fluids. And he points to testimony members of law

enforcement gave to the effect that they did not think such testing was necessary

because Kulchar admitted that he had sex with A.R., making consent the only real issue

at trial.

        {¶35} However, R.C. 2921.12(A)(1) only requires that a person “[a]lter, destroy,

conceal, or remove any record, document, or thing, with purpose to impair its value or

availability as evidence * * *.” (Emphasis added). It does not require that the State

show the item would have in fact contained evidence, particularly in a case such as this

where police cannot locate an item due to the defendant’s actions. Moreover, the

statute does not require that the State show that police would have found the item

material to their investigation, i.e. the State did not have to show that it would have

found the boxers pertinent enough to its case that it would have allocated limited
Athens App. No. 10CA6                                                                     16


resources to have them tested for body fluids.

         {¶36} The jury chose to believe the State’s version of events, and we will not

substitute our judgment for that of the finder of fact under these circumstances. Kulchar

admitted that he texted Ruddy and asked him to get rid of the SpongeBob SquarePants

boxers. At the time Kulchar sent the text, he had already been arrested and had one

hand cuffed to a chair. Kulchar claimed that he thought police were interested in his

marihuana use, not investigating him for rape. However, the pre-arrest questions

Lieutenant Johnson posed to Kulchar – such as questions about A.R.’s period and the

type of underwear Kulchar wore during their sexual encounter – discredit Kulchar’s

claim.

         {¶37} This evidence reasonably supports the conclusion that Kulchar knew

police were investigating him for rape and instructed Ruddy to get rid of the boxer

shorts with the purpose of impairing the value or availability of the boxers as evidence in

that investigation. After reviewing the entire record, we cannot say that the jury lost its

way or created a manifest miscarriage of justice when it found Kulchar guilty of

complicity to tampering with evidence. Accordingly, we find that Kulchar’s conviction

was not against the manifest weight of the evidence. Thus, we necessarily also

conclude that sufficient evidence supports his conviction. We overrule Kulchar’s second

assignment of error.

                                VI. Motion for Mistrial

         {¶38} In his third assignment of error, Kulchar contends that the court erred

when it denied his “motion for mistrial” based on the State’s failure to timely provide

certain discovery under Crim.R. 16 and Brady, supra. Although Kulchar did raise the
Athens App. No. 10CA6                                                                      17


discovery issue during trial, he characterized his motion as one “to dismiss” the charges

against him, not as a “motion for mistrial.” However, for either type of motion, we review

the court’s ruling for an abuse of discretion. See State v. Murphy, Scioto App. No.

09CA3311, 2010-Ohio-5031, at ¶83 (outlining standard of review for trial court’s ruling

on motion for mistrial); State v. Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, 850

N.E.2d 123 (outlining standard of review for trial court’s denial of motion to dismiss).

The phrase “abuse of discretion” implies that the court’s decision was unreasonable,

arbitrary, or unconscionable. Adams, supra, at 157. And as we explain below, the trial

court did not abuse its discretion when it denied Kulchar’s motion.

          {¶39} Kulchar contends that before trial began, the State failed to disclose

certain inconsistent statements A.R. made and that failure somehow prejudiced his

defense. Crim.R. 16 outlines rules for discovery in criminal cases. Kulchar points to the

current language of the rule to support his argument that he was entitled to this

discovery prior to trial; however, at the time of Kulchar’s prosecution, Crim.R. 16 stated3:

          (A) Demand for discovery

          Upon written request each party shall forthwith provide the discovery
          herein allowed. Motions for discovery shall certify that demand for
          discovery has been made and the discovery has not been provided.

          (B) Disclosure of evidence by the prosecuting attorney

          (1) Information subject to disclosure.

                                                     ***

          (g) In camera inspection of witness’ statement. Upon completion of a
          witness’ direct examination at trial, the court on motion of the defendant
          shall conduct an in camera inspection of the witness’ written or recorded
          statement with the defense attorney and prosecuting attorney present and
          participating, to determine the existence of inconsistencies, if any,
3
    Crim.R. 16 was amended effective July 1, 2010.
Athens App. No. 10CA6                                                                      18


      between the testimony of such witness and the prior statement.

      If the court determines that inconsistencies exist, the statement shall be
      given to the defense attorney for use in cross-examination of the witness
      as to the inconsistencies.

      If the court determines that inconsistencies do not exist the statement
      shall not be given to the defense attorney and he shall not be permitted to
      cross-examine or comment thereon.

      Whenever the defense attorney is not given the entire statement, it shall
      be preserved in the records of the court to be made available to the
      appellate court in the event of an appeal.

                                           ***

      {¶40} Under the plain language of former Crim.R. 16(B)(1)(g), Kulchar was not

entitled to any of A.R.’s statements before trial. Instead, once the State completed its

direct examination of A.R., Kulchar could move the court to conduct an in camera

inspection of any of her statements in his counsel’s presence and with his counsel’s

participation. Therefore, the State did not violate former Crim.R. 16.

      {¶41} Nonetheless, Kulchar contends he was entitled to pre-trial disclosure of

A.R.’s statements under Brady. As the Supreme Court of Ohio explained in State v.

Iacona, 93 Ohio St.3d 83, 88-89, 2001-Ohio-1292, 752 N.E.2d 937:

              In the landmark case of Brady v. Maryland (1963), 373 U.S. 83, 83
      S.Ct. 1194, 10 L.Ed.2d 215, the United States Supreme Court held that a
      criminal defendant may claim denial of due process where the state fails
      to disclose the existence of potentially exculpatory evidence. “[T]he
      suppression by the prosecution of evidence favorable to an accused upon
      request violates due process where the evidence is material either to guilt
      or to punishment, irrespective of the good faith or bad faith of the
      prosecution.” Id. at 86, 83 S.Ct. at 1196-1197, 10 L.Ed.2d at 218. But,
      “[i]n determining whether the prosecution improperly suppressed evidence
      favorable to an accused, such evidence shall be deemed material only if
      there is a reasonable probability that, had the evidence been disclosed to
      the defense, the result of the proceeding would have been different. A
      ‘reasonable probability’ is a probability sufficient to undermine confidence
      in the outcome. This standard of materiality applies regardless of whether
Athens App. No. 10CA6                                                                   19


       the evidence is specifically, generally or not at all requested by the
       defense.” State v. Johnston (1988), 39 Ohio St.3d 48, 529 N.E.2d 898,
       [at] paragraph five of the syllabus, following United States v. Bagley
       (1985), 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481. See, also, State v.
       Treesh (2001), 90 Ohio St.3d 460, 475, 739 N.E.2d 749, 767.

       {¶42} The Iacona Court further explained that:

       Strictly speaking, Brady is not violated when disclosure occurs during trial,
       even when disclosure surprises the defendant with previously undisclosed
       evidence. State v. Wickline (1990), 50 Ohio St.3d 114, 116, 552 N.E.2d
       913, 917. In such a circumstance a trial court has authority, pursuant to
       Crim.R. 16(E)(3), to grant a continuance or make other orders that the
       court deems just to ensure that the recently disclosed information can be
       evaluated, and used at defense counsel’s option, before the trial is
       concluded.

               It has, however, been held that the philosophical underpinnings of
       Brady support the conclusion that even disclosure of potentially
       exculpatory evidence during trial may constitute a due process violation if
       the late timing of the disclosure significantly impairs the fairness of the
       trial. [But] [e]ven where information may be exculpatory, “[n]o due process
       violation occurs as long as Brady material is disclosed to a defendant in
       time for its effective use at trial.” United States v. Smith Grading & Paving,
       Inc. (C.A.4, 1985), 760 F.2d 527, 532. See, also, United States v.
       Starusko (C.A.3, 1984), 729 F.2d 256, 262; United States v. O'Keefe
       (C.A.5, 1997), 128 F.3d 885, 898.

Id. at 100. The defendant has the burden to prove a Brady violation rising to the level of

denial of due process. Id. at 92.

       {¶43} Kulchar complains that the State waited until after opening statements to

give him statements A.R. made in which she: 1.) admitted that she smoked marihuana

with Kulchar before the alleged rape; 2.) denied being able to locate her cell phone

during the incident with Kulchar. He claims that these statements contradicted other

statements A.R. gave about incident with him. However, Kulchar did not request a

continuance to review these statements. In addition, Kulchar received the statements

before any witnesses testified and he actually used them during trial in an effort to
Athens App. No. 10CA6                                                                    20


discredit A.R. Therefore, Kulchar failed to show that he received the statements at a

time when he could no longer effectively use them at trial, and we conclude that no

Brady violation occurred.

       {¶44} The State did not violate former Crim.R. 16 or Brady. Therefore, the trial

court’s decision to deny Kulchar’s motion was not unreasonable, arbitrary or

unconscionable. We overrule his third assignment of error.

                                     VII. Sentencing

       {¶45} In his first assignment of error, Kulchar contends that the trial court erred

when it sentenced him. In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, the Supreme Court of Ohio announced the standard for appellate review of

felony sentences. We must employ a two-step analysis. First, we must “examine the

sentencing court’s compliance with all applicable rules and statutes in imposing the

sentence to determine whether the sentence is clearly and convincingly contrary to law.”

Kalish at ¶4. If the sentence is not clearly and convincingly contrary to law, we review it

for an abuse of discretion. Id.

       {¶46} If the trial court’s sentence is outside the permissible statutory range, the

sentence is clearly and convincingly contrary to law. Kalish at ¶15. Here, the trial court

convicted Kulchar of a third-degree felony and sentenced him to three years in prison.

Under R.C. 2929.14(A)(3), the statutory prison term range for a third-degree felony is

one to five years. Therefore, the trial court imposed a sentence within the permissible

statutory range.

       {¶47} Kulchar also appears to complain that the sentence is clearly and

convincingly contrary to law because the court did not consider R.C. 2929.11 and R.C.
Athens App. No. 10CA6                                                                       21


2929.12. Although sentencing courts are “no longer required to make findings or give

their reasons for imposing maximum, consecutive, or more than the minimum

sentences[,]” State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at

paragraph seven of the syllabus, they must still consider R.C. 2929.11 and R.C.

2929.12 before imposing a sentence. Kalish at ¶13. He contends that these statutes

“clearly call upon the court to evaluate individual characteristics of the defendant” and

that the court failed to evaluate his individual characteristics. However, in the

sentencing entry, the trial court expressly stated that it considered R.C. 2929.11 and

R.C. 2929.12. Although the court did not make specific findings concerning the various

factors in these statutes, it had no obligation to do so. State v. Taylor, Athens App. No.

08CA23, 2009-Ohio-3119, at ¶13, citing State v. Woodruff, Ross App. No. 07CA2972,

2008-Ohio-967, at ¶16. Therefore, we reject Kulchar’s argument. And because Kulchar

cites no other failure of the trial court to comply with any other “applicable rules and

statutes,” we find that Kulchar’s sentence is not clearly and convincingly contrary to law.

       {¶48} Next, we must determine whether the trial court abused its discretion in

selecting Kulchar’s sentence. The term “abuse of discretion” implies that the court’s

attitude is arbitrary, unreasonable, or unconscionable. Adams, supra, at 157. As we

explained in State v. Davis, Highland App. No. 06CA21, 2007-Ohio-3944, at ¶42:

       “‘An “abuse of discretion” has * * * been found where a sentence is greatly
       excessive under traditional concepts of justice or is manifestly
       disproportionate to the crime or the defendant. Woosley v. United States
       (1973), 478 F.2d 139, 147. * * * Where the severity of the sentence
       shocks the judicial conscience or greatly exceeds penalties usually
       exacted for similar offenses or defendants, and the record fails to justify
       and the trial court fails to explain the imposition of the sentence, the
       appellate court’s [sic] can reverse the sentence. [Id.] This by no means is
       an exhaustive or exclusive list of the circumstances under which an
       appellate court may find that the trial court abused its discretion in the
Athens App. No. 10CA6                                                                                     22

        imposition of [a] sentence in a particular case.’” [State v. Elswick, Lake
        App. No.2006-L-075, 2006-Ohio-7011], at ¶49, quoting State v.
        Firouzmandi, Licking App. No. 2006-CA-41, 2006-Ohio-5823, at ¶56.

        {¶49} At the January 4, 2010 sentencing hearing, the trial court made the

following statements4:

        [T]he Court finds that uh, in reaching its decision that the boxers uh, uh,
        you either knew or suspected that they had something of evidentiary value
        on them and uh, whether or not the police would of had them tested will
        [sic] just never know cause they never had them. And uh, and those were
        directly due to your actions in uh, in uh, texting Mr. Ruddy to dispose of
        those pants. Now as indicated here the Court finds that two of your
        statements at the trial were not truthful, they didn’t make any sense. And
        that was your testimony that you made untruthful statements to Chris
        Johnson because he didn’t uh, you indicated you did not want to get
        caught for marijuana use and lose your scholarship and the chemical test
        and even though Lieutenant was questioning you about the, the sex and
        you said it was consensual uh, and that despite that thing going on you
        texted Mr. Ruddy to get rid of those boxers when you knew the
        investigation was going on [sic]. Also the Court finds is not believable [sic]
        the fact that you testified that you did not want to uh, the Lieutenant to
        think you were a liar uh, when you indicated to him that they were plaid
        boxers as opposed to those Sponge Bob Square Pants boxers uh, and of
        course that, so rather than you know, telling him, that oops I made a
        mistake here Lieutenant you went ahead and texted Mr. Ruddy to get rid
        of those. The Court, and of course you’ve had these two convictions that
        Mr. Driscoll has referred to for the trespassing and the OMVI and uh, so
        that would be further indication that recidivism and the Court finds that
        because of your actions here and I’ll, that the more serious factors as I’ve
        stated here outweigh less seriousness and the more likely outweigh the
        less likely uh, because of your convictions and your activities and uh,
        giving the testimony the Court finds not believable [sic]. So for those
        areas about destroying the underwear when you knew that the
        investigation was uh, or the sexual assault was going on, your uh, uh,
        statements at the trial, I’ve referred to those two statements, your
        convictions here uh, the Court as I’ve indicated finds that your [sic] not
        amenable for a, placing on community control and uh, will sentence you to
        three years in prison.

(Emphasis added).


4
   The Court held an earlier sentencing hearing on December 16, 2009, but never journalized the sentence
it orally imposed at that hearing. Due to a perceived error at the hearing, the court “vacated” the original,
un-journalized sentence and held a new sentencing hearing.
Athens App. No. 10CA6                                                                       23


       {¶50} Kulchar argues that the court abused its discretion when it sentenced him

because “[i]t appears that the court took the serious nature of the charges for which he

had been falsely accused and used them in its consideration of sentencing.” He

inquires, “How else can it be explained that a man is sentenced to prison for having a

friend dispose of underwear that the police stat[e] have no evidentiary value[?]”

Kulchar points to the court’s statement that “the sexual assault was going on” as

evidence that the court disagreed with his acquittal on the rape charge and sentenced

him to three years in prison to punish him for the rape – not for complicity. Kulchar

notes that he was a young college student who only had “a minor trespassing

conviction” and OVI conviction on his record. And he argues that the record does not

support the court’s conclusion that he was not amenable to community control and

should be sentenced to three years in prison.

       {¶51} Admittedly the court’s comment about the sexual assault, when read in

isolation, is confusing. However, when read in context with the court’s other comments

about Kulchar’s trial testimony, it is apparent that the court was trying to convey its

belief that Kulchar knew police were investigating him for an alleged sexual assault

when he told Ruddy to get rid of his boxer shorts – a belief entirely consistent with the

jury’s finding of guilt on the complicity charge. None of the court’s statements at the

sentencing hearing indicate that the court felt the jury erred when it found Kulchar not

guilty of the rape charge or that the court increased Kulchar’s sentence to punish him

for raping A.R.

       {¶52} And contrary to Kulchar’s arguments, the record does not indicate that the

court abused its discretion in any other fashion when it found that he was not amenable
Athens App. No. 10CA6                                                                      24


to community control and imposed a three year sentence. As specific support for the

sentence, the trial court pointed to testimony from Kulchar the court felt lacked credibility

and the fact that Kulchar committed two other crimes (OVI and trespassing) after the

grand jury indicted him in this case. See State v. O'Dell (1989), 45 Ohio St.3d 140, 148,

543 N.E.2d 1220 (“[W]hen a sentencing judge is the same judge who presided over the

defendant’s trial, the defendant’s act of lying under oath is a factor that may be

considered along with other pertinent factors when imposing sentence. Accordingly, we

hold that the trial court did not abuse its discretion when it considered defendant’s

demeanor and truthfulness as a witness in light of all the other factors present in this

case.”) (internal citation omitted); State v. Collier, Lorain App. No. 07CA009115, 2008-

Ohio-826, at ¶19 (finding trial court did not abuse its discretion in sentencing defendant

when it considered “based on its observation of the testimony and demeanor of

Defendant, that he lied under oath”). Accordingly, we find that the court did not act in an

arbitrary, unreasonable or unconscionable manner when it selected Kulchar’s sentence.

We overrule his first assignment of error.

                                     VIII. Conclusion

       {¶53} Having overruled each of the assignments of error, we affirm the trial

court’s judgment.

                                                                  JUDGMENT AFFIRMED.
Athens App. No. 10CA6                                                                       25


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, A.J.: Concur in Judgment and Opinion.

                                            For the Court



                                            BY: ______________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
