[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.