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

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. William B. Hoffman, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

TODD A. KOPCHAK : Case No. CT2017-0036 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. CR2016-0250 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: March 26, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

D. MICHAEL HADDOX JEFFERY M. BLOSSER 

Prosecuting Attorney 765 South High Street 

By: GERALD V. ANDERSON II Columbus, OH 43206 

Assistant Prosecuting Attorney 

27 North Fifth Street, P. O. Box 189 

Zanesville, OH 43702-0189 
Muskingum County, Case No. CT2017-0036 2 

Wise, Earle, J.

{¶ 1} Defendant-Appellant Todd A. Kopchak appeals the May 18, 2017 judgment 

of conviction and sentence of the Court of Common Pleas, Muskingum County, Ohio. 

Plaintiff-Appellee is the state of Ohio. 

STATEMENT OF THE CASE 

{¶ 2} On August 3, 2016, the Muskingum County Grand Jury returned an 

indictment charging appellant with two counts of rape pursuant to R.C. 2907.02(A)(1)(c), 

felonies of the first degree. A jury trial began on April 18, 2017, at the conclusion of which 

appellant was convicted as charged. Appellant was subsequently sentenced to eight 

years on each count and ordered to serve the sentences concurrently. 

{¶ 3} On appeal, appellant raises a discovery issue. A recitation of the facts which 

led to the charges is therefore not necessary to our disposition of this appeal. The relevant 

facts are as follow: 

{¶ 4} The Bureau of Criminal Investigation (BCI) conducted DNA analysis of 

bodily fluids found on an article of appellant’s clothing, a standard submitted by appellant, 

and swabs from the victim’s rape kit. At trial, the BCI criminalist who conducted the testing 

testified as to his findings. 

{¶ 5} Appellant was initially represented by Attorney Mark Kaido. Attorney Kaido 

retained Dr. Theodore Kessis, an expert in the area of forensic DNA analysis to perform 

an independent analysis of the results obtained by the BCI. Kessis did not perform 

additional testing of the evidence. Rather, he reviewed the procedures and methods 

utilized by the BCI. In a one-page letter dated January 11, 2017, Kessis opined the BCI 

procedures were accurately and reliably conducted. 
Muskingum County, Case No. CT2017-0036 3 

{¶ 6} Appellant subsequently fired Attorney Kaido and hired Attorney Jeffery 

Blosser. On April 5, 2017, Attorney Blosser filed a response to the state’s request for 

discovery. Item 4 of the response stated “The Defendant does not intend to call an expert 

witness in this matter as set forth in Crim.R. 16(K).” 

{¶ 7} On April 10, 2017, following an in-chambers pretrial which is not a part of 

the record, Attorney Blosser filed the one-page letter from Kessis with the trial court, under 

seal, for determination by the court as to whether or not the defense was required to 

provide the letter to the state. 

{¶ 8} On April 11, 2017, a hearing was held on the matter. The state argued 

Attorney Kaido had stated he had hired an expert witness, it believed Kessis would be an 

expert witness, and that therefore it was therefore entitled to the letter prepared by Kessis. 

Attorney Blosser, however, indicated he had no intention to call Kessis as a witness. The 

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

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

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

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

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

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

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

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

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

I 

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

STATE OF A CONSULTING EXPERT WITNESS FOR THE DEFENSE IN VIOLATION 

OF CRIM. R. 16(J)." 

II 

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

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

PREVIOUS COUNSEL BY THE STATE WHERE THE TESTIMONY'S PROBATIVE 

VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE NEEDLESS PRESENTATION 

OF CUMULATIVE EVIDENCE." 

I, II 

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

together. 

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

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

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

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

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

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

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

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

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

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

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

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

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

The rule states in relevant part: 

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

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

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

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

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

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

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

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

photographs, tangible objects, buildings or places; 

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

tests; 

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

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

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

that would tend to incriminate that defendant; 

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

(5) Any written or recorded statement by a witness in the defendant’s casein-chief, or any witness that it reasonably anticipates calling as a witness in 

surrebuttal. 

{¶ 17} Emphasis added. 

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

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

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

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

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

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

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

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

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

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

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

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

preclude the expert’s testimony at trial. 

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

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

called as witnesses.” 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

defense attorneys would be deterred from seeking out such experts and 

developing work product on behalf of their clients. 

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

Fairchild is nonetheless instructive as Crim.R.16 (J)(1) is designed to protect the attorneyclient relationship. The realities of litigation in our adversary system, dictate that defense 
Muskingum County, Case No. CT2017-0036 8 

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

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

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

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

141 (1975). 

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

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

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

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

harmless. 

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

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

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

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

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

Recently, in Morris, a four-to-three decision, we examined the harmlesserror rule in the context of a defendant's claim that the erroneous admission 

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

dispensed with the distinction between constitutional and non-constitutional 

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

was established to guide appellate courts in determining whether an error 

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

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

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

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

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

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

establishes the defendant's guilt beyond a reasonable doubt. 

{¶ 26} Id. at ¶ 29, 33. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

we find the remaining properly introduced evidence overwhelmingly establishes 

defendant's guilt. 

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

By Wise, Earle, J. 

Gwin, P.J. and 

Hoffman, J. concur. 

 

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