State v. Sutherland

• Decision Date: 16 July 2021
• Docket Number: No. 2021-CA-4,2021-CA-4
• Citation: 173 N.E.3d 942
• Court: Ohio Court of Appeals
• Parties: STATE of Ohio, Plaintiff-Appellant v. Jeffrey Scott SUTHERLAND, Defendant-Appellee

173 N.E.3d 942

STATE of Ohio, Plaintiff-Appellant

v.Jeffrey Scott SUTHERLAND, Defendant-Appellee

No. 2021-CA-4

Court of Appeals of Ohio, Second District, Darke County.

Rendered on July 16, 2021

R. KELLY ORMSBY, III, Atty. Reg. No. 0020615 & DEBORAH S. QUIGLEY, Atty. Reg. No. 0055455, Darke County Prosecutor's Office, Appellate Division, 504 South Broadway Street, Greenville, Ohio 45331, Attorney for Plaintiff-Appellant.

JOSEPH C. PATITUCE, Atty. Reg. No. 0081384 & MEGAN M. PATITUCE, Atty. Reg. No. 0081064, 16855 Foltz Industrial Parkway, Strongsville, Ohio 44149, Attorneys for Defendant-Appellee.

OPINION

EPLEY, J.

{¶ 1} Pursuant to Crim.R. 12(K), appellant State of Ohio appeals from the trial court's pretrial decision excluding from trial what it characterized as "other acts" evidence. The court found the evidence (in the form of Google searches found on Defendant-Appellee Jeffrey Scott Sutherland's phone) to be incongruous with Evid.R. 404(B) and unfairly prejudicial to Sutherland. For the reasons that follow, we will reverse the trial court's decision in part and sustain it in part, and we will remand the matter to the trial court for further proceedings in light of our opinion.

I. Facts and Procedural History

{¶ 2} On April 20, 2020, a child victim ("CV") disclosed allegations of sexual abuse by Sutherland. The following day, Detective Prickett of the Darke County Sheriff's Office seized and searched Sutherland's cell phone pursuant to a warrant.

{¶ 3} On June 26, 2020, Sutherland was indicted on three counts of rape of a victim under the age of ten, felonies of the first degree, and one count of disseminating matter harmful to a juvenile, a third-degree felony. Sutherland entered a not guilty plea, and the case was set for trial on March 29, 2021.

{¶ 4} On March 11, 2021, the State filed notice that it intended to introduce "other acts" evidence pursuant to Evid.R. 404(B) and requested a jury instruction for "consciousness of guilt." The State intended to offer evidence of Google searches found on Sutherland's phone stemming from April 21, 2020, the day after CV disclosed the alleged abuse. While the record is silent on the matter, it appears from the parties’ briefs that Sutherland spoke with deputies that day as well. Sutherland filed a motion in opposition on March 17, 2021.

{¶ 5} Before the jury was sworn in on March 29, 2021, the trial court conducted a hearing on the State's motion. The State proffered that it would introduce evidence and testimony from a Bureau of Criminal Investigation forensic expert that would show specific Google searches found on Sutherland's phone the day after CV disclosed the alleged abuse. The Google searches were as follows: (1) "what if I'm accused of touching a child," (2) "how long to arrest someone," (3) "How long does skin DNA last," (4) "detecting the presence of male DNA in cases of sexual assault without ejaculation," (5) "how long does skin DNA last in a woman's body," (6) "how long can DNA last in a vagina," (7) "detecting seminal fluid and saliva in [sexual assault] kits," (8) "detecting saliva inside a vagina," and (9) "digital vaginal DNA life." Hearing Tr. at 194. The State's evidence, however, was limited to search terms; the results of the searches were not disclosed.

{¶ 6} After a lengthy back-and-forth between the parties and the trial court, the court orally disallowed the State's use of the Google searches at trial and then issued a written decision two days later. The State, for its part, gave notice of its intent to appeal the court's ruling under Crim.R. 12, the trial did not proceed, and the State's appeal was filed on April 2, 2021. The State raises two assignments of error.

II. Admissibility of Google searches

{¶ 7} In its first assignment of error, the State argues that the trial court misinterpreted State v. Hartman , 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, in regard to the admissibility of purported Evid.R. 404(B) "other acts" evidence. We conclude that the Google searches were not "other acts" evidence and overrule the assignment of error. In its second assignment of error, the State contends that the trial court abused its discretion when it excluded the Google searches. For reasons other than those proposed by the State, we sustain the assignment of error in part and overrule it in part.

A. The Google search results are not Evid.R. 404(B) evidence

{¶ 8} "A hallmark of the American criminal justice system is the principle that proof that the accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused's propensity or inclination to commit crime." State v. Curry , 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975), citing 1 Underhill's Criminal Evidence , Section 205, 595 (6th Ed.1973). Evid.R. 404 is the embodiment of that principle.

{¶ 9} Evid.R. 404(A) states: "Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." Evid.R. 404(A). In other words, it does not necessarily follow that because a person committed a crime in the past, he or she committed this crime.

{¶ 10} As with many things in the law, however, there are exceptions. Evid.R. 404(B) provides that "other acts" or "propensity" evidence is sometimes admissible for other purposes such as proof of motive, opportunity, preparation, plan, intent, absence of mistake, identity, or knowledge." Evid.R. 404(B). "The key is that the evidence must prove something other than the defendant's disposition to commit certain acts. Thus, while evidence showing the defendant's character or propensity to commit crimes or acts is forbidden, evidence of other acts is admissible when the evidence is probative of a separate, nonpropensity-based issue." Hartman at ¶ 22.

{¶ 11} In this case, the State argues that the Google searches should be admissible as "other acts" evidence under Evid.R. 404(B) and points to the "knowledge" exception as the vehicle for admittance. We disagree.

{¶ 12} Black's Law Dictionary defines knowledge as "[a]n awareness or understanding of a fact or circumstance; a state of mind in which a person has no substantial doubt about the existence of a fact." Black's Law Dictionary (11th Ed.2019). The Ohio Revised Code provides a definition as well: "A person has knowledge of circumstances when the person is aware that such circumstances probably exist." R.C. 2901.22(B). While neither of these definitions are particularly helpful here, the caselaw on the "knowledge" exception to Evid.R. 404(B) is.

{¶ 13} In State v. Snyder , 3d Dist. Logan No. 8-03-04, 2003-Ohio-5134, 2003 WL 22229430, the defendant was charged with complicity to commit burglary after a house was broken into and valuables were stolen from a gun cabinet in the master bedroom. To help prove its case, the State submitted evidence that the defendant had previously burglarized the house and admitted to knowledge of the layout of the victim's home and the location of the gun safe. The Third District wrote:

* * * In the current case, the boys who entered the residence * * * went directly to the master bedroom where they opened the gun cabinet and took the valuable coin collection that was located within. The majority of the residence was left undisturbed and, as evidence and testimony at trial showed, the boys knew where they were going when they entered the residence. The testimony of Officer Kenner relaying Joshua Snyder's knowledge of the residence and the location of valuables within the residence was relevant to the issue of proving complicity to commit burglary in the current case. * * *

Id. at ¶ 14.

{¶ 14} The court ultimately held that the "other acts" evidence was appropriate because it showed that the defendant's prior experience in the house gave him the knowledge needed to find the valuables in the gun cabinet without disturbing anything else.

{¶ 15} In State v. Dickson, 5th Dist. Stark No. 1994 CA 00152, 1995 WL 156286 (Feb. 6, 1995), the defendant was convicted of criminal trespass. The State sought, over defense objection, to admit evidence that the defendant had four previous instances of criminal trespass at this particular apartment complex to demonstrate he had knowledge that he was not to be on the premises. Both the trial court and appellate court found that Evid.R. 404(B) was an appropriate vehicle to introduce the knowledge evidence. See also United States v. Blitz , 151 F.3d 1002, 1007 (9th Cir. 1998) (evidence of the defendant's prior employment at a fraudulent telemarketing company was admissible to demonstrate defendant knew current telemarketing company was engaged in fraud).

{¶ 16} The archetypal Evid.R. 404(B) "knowledge" cases, including the just-cited examples, are different than this case. In those cases, the accused had the knowledge and then committed the crime. For the "knowledge" exception to work in a hypothetical analogous instance, the accused would have to make the Google searches, find out the information, and then do the illicit act. In Sutherland's case, if the State's theory is to be followed, he committed the crime and then had the knowledge. While that seems to be a subtle difference on the surface, the distinction is important, and it takes this scenario out of the Evid.R. 404(B) realm. To the extent that the State and trial court used an Evid.R. 404(B) analysis to reach their conclusions, we find that they were mistaken. The Google searches were not "other acts" evidence under Evid.R. 404(B).

{¶ 17} In the alternative, the State contends that the Google searches should be construed as "consciousness of guilt" evidence. Misconduct establishing the defendant's consciousness of guilt is admissible. One court has even stated that this type of evidence is "second only to a confession in terms of probative value." United States v. Meling , 47 F.3d 1546, 1557 (9th Cir. 1995).

{¶ 18} Courts have determined that when an...