[Cite as State v. Sutherland, 2021-Ohio-2433.]

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 DARKE COUNTY 

STATE OF OHIO 

Plaintiff-Appellant 

v. 

JEFFREY SCOTT SUTHERLAND 

Defendant-Appellee 

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Appellate Case No. 2021-CA-4 

Trial Court Case No. 2020-CR-91 

(Criminal Appeal from 

Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 16th day of July, 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 

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EPLEY, J. 
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{¶ 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 DefendantAppellee 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. 
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{¶ 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 
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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” 
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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, 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. * * * 
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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 
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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 accused takes an affirmative step to 

conceal conduct or avoid consequences of his or her illicit dealings, that person has 

demonstrated “consciousness of guilt.” For instance, the Ohio Supreme Court has 

commented that “today [it is] universally conceded that the fact of an accused’s flight, 

escape from custody, resistance to arrest, concealment, assumption of a false name, and 

related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt 

itself.” State v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646, 657 (1997), quoting State 

v. Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897 (1969), vacated on other grounds, 408 

U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750. The State may also ask for a jury instruction 

on “consciousness of guilt.” State v. St. John, 2d Dist. Montgomery No. 27988, 2019-

Ohio-650, ¶ 111.

{¶ 19} The State argues that Sutherland’s Google searches after the alleged crime 

were clear examples of “consciousness of guilt,” and it points to State v. Petkovic, 8th 

Dist. Cuyahoga No. 97548, 2012-Ohio-4050, to buttress that claim. In that factuallysimilar case, the defendant was accused by a minor of rape and other sexual offenses. 

After speaking with law enforcement (but before he was charged), the defendant made 

the following internet searches on his home computer: “age of consent,” “sex laws,” 
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“internet crimes,” “spousal privilege,” and “deleting email.” The evidence was admitted 

and during closing arguments, the prosecutor asked the jury, “If [defendant] didn’t think 

he did anything wrong, why is he going home and looking at those websites?” Petkovic 

was convicted, and on appeal he challenged the admissibility of the searches. The 

appeals court affirmed the conviction.

{¶ 20} The State reads the affirmance in Petkovic as an endorsement of its position 

that Google searches conducted after an alleged crime are clear examples of 

“consciousness of guilt” evidence. We see Petkovic differently. While the evidence of the 

internet search(es) was admitted into evidence in Petkovic, it was not, at any point, 

objected to by the defense. The prosecutor’s closing argument comments were not 

objected to either. Without objections at the trial court level, the reviewing court was 

required to decide the issue under a plain error standard, essentially precluding the Eighth 

District from deciding the question of the propriety of the internet search evidence on the 

merits. Petkovic, in our view, does not endorse the State’s position. 

{¶ 21} The Google queries in this case do not fall neatly into the typical categories 

of “consciousness of guilt” evidence. Instead, we conclude they are properly viewed as 

circumstantial evidence – evidence that is based on inference. Black's Law Dictionary

(11th Ed.2019). This type of evidence “is as inherently probative as direct evidence,” State 

v. Winton, 2d Dist. Montgomery No. 27043, 2017-Ohio-6908, ¶ 23, and an accused may 

be convicted wholly on that basis. State v. Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 

1236 (1998). 

{¶ 22} We have determined that the Google searches were neither “other acts” 

evidence under Evid.R. 404(B) nor “consciousness of guilt” evidence. Instead, we find 
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them to be circumstantial evidence. We must next decide whether the trial court erred 

when it excluded the evidence from trial. 

B. The Google search results were relevant and not unfairly prejudicial 

{¶ 23} “A trial court has broad discretion to admit or exclude evidence, and its 

exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.” 

State v. Hunt, 2d Dist. Darke No. 2018-CA-9, 2019-Ohio-2352, ¶ 27. A trial court abuses 

its discretion if it makes an unreasonable, unconscionable, or arbitrary decision. Id. 

{¶ 24} When engaging in this gatekeeper capacity, the trial court must determine 

if potential evidence is relevant. Evid.R. 401 defines “relevant” evidence. To be relevant, 

evidence must have a “tendency to make the existence of any fact that is of consequence 

to the determination of the action more or less probable than it would be without the 

evidence.” Evid.R. 401. In other words, there must be some probative value to the 

evidence. Generally, relevant evidence is admissible. Evid.R. 402. 

{¶ 25} In its written decision excluding the Google search evidence, the trial court 

did not make a determination of the evidence’s relevance; instead, it skipped ahead to 

the next step in the analysis – determining the level of prejudice. We find, however, that 

the evidence was relevant. Overall, these Google queries made the State’s contention 

that Sutherland sexually abused CV more probable than without them. However, some 

of the Google results were more probative than others. 

{¶ 26} Queries such as: “What if I’m accused of touching a child?” “How long to 

arrest someone?” are minimally probative. As Sutherland argues in his brief, these 

Google searches could realistically be nothing more than a person trying to find out more 

information about topics that were discussed during his conversation with detectives. The 
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probative value of these two queries was minimal and rendered them not relevant, thus 

inadmissible. The trial court did not err in excluding those searches. 

{¶ 27} The remaining searches, however, were much more specific and probative. 

Googling topics such as “Detecting the presence of male DNA in cases of sexual assault 

without ejaculation,” “Detecting seminal fluid and saliva in sexual assault kits,” “Detecting 

saliva inside a vagina,” “Digital vaginal DNA life,” “How long does skin DNA last in a 

woman’s body?” “How long does skin DNA last?” and “How long can DNA last in a 

vagina?” potentially revealed significantly more information than the innocuous searches 

mentioned above. A jury could have reasonably found those queries, as the State posits, 

to be evidence of guilt, or as Evid.R. 401 puts it, the searches could have made a “fact 

that is of consequence to the determination of the action more or less probable than it 

would be without the evidence.” Evid.R. 401. These Google searches are probative and 

relevant. 

{¶ 28} Finding that evidence is relevant is not the end of the analysis, however. A 

trial court may still exclude relevant evidence if its probative value is substantially

outweighed by the danger of unfair prejudice. Evid.R. 403. “Exclusion on the basis of 

unfair prejudice involves more than a balance of mere prejudice. If unfair prejudice simply 

meant prejudice, anything adverse to the litigant’s case would be excludable under Rule 

403. Emphasis must be placed on the word ‘unfair.’ Unfair prejudice is that quality of 

evidence which might result in an improper basis for a jury decision.” Oberlin v. Akron 

Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 2001-Ohio-248, 743 N.E.2d 890. If the evidence 

arouses the emotions or sympathies of the jury, evokes a sense of horror, or appeals to 

an instinct to punish, the evidence is likely unfairly prejudicial and should be excluded. Id. 
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{¶ 29} “[W]hen determining whether the relevance of evidence is outweighed by 

its prejudicial effects, the evidence is viewed in a light most favorable to the proponent.” 

State v. Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-325, ¶ 22. Courts have 

characterized Evid.R. 403 as an “extraordinary remedy” which should only be used 

sparingly because it permits the exclusion of otherwise relevant evidence.” United States 

v. Meester, 762 F.2d 867, 875 (11th Cir.1985). The major function of Evid.R. 403 is 

“limited to excluding matter of scant or cumulative probative force, dragged in by the heels 

for the sake of its prejudicial effect.” United States v. McRae, 593 F.2d 700, 707 (5th 

Cir.1979). 

{¶ 30} Sutherland argues that the danger for prejudice outweighs any probative 

value because the State could use the Google search evidence as “stand-alone proof of 

guilt.” That argument would make sense in an Evid.R. 404(B) scenario where the “other 

acts” evidence were more “icing on the cake” than the “main course,” but we have already 

held that the Google searches are not “other acts” evidence, but rather circumstantial 

evidence which is treated the same as direct evidence. Sutherland also underplays the 

probative value and relevance of many of the searches. Only two of the nine Google 

searches, we believe, could be fairly characterized as (as Sutherland puts it) “seeking to 

educate himself on what he was interrogated upon.” The remaining seven were much 

more probative. 

{¶ 31} To be sure, the Google searches were prejudicial, just like most evidence 

presented by the State in a criminal trial, but they were not unfairly prejudicial. The Google 

searches did not rise to the level of evoking a sense of horror in a juror or igniting an 

instinct to punish. Unfairly prejudicial evidence “appeals to the jury’s emotions rather than 
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intellect,” Weissenberger’s Ohio Evidence (2000) 85-87, Section 403.3, and we do not 

have that here. The balance should be struck in favor of admission because the dangers 

associated with the potentially inflammatory evidence must substantially outweigh its 

probative value. Amesse v. Wright State Physicians, Inc., 2018-Ohio-416, 105 N.E.3d 

612, ¶ 36 (2d Dist.). 

{¶ 32} The seven probative and relevant Google searches should be admitted due 

to their importance to the case. While prosecutorial need alone does not mean probative 

value outweighs prejudice, “the more essential the evidence, the greater its probative 

value, and the less likely that a trial court should order the evidence excluded.” United 

States v. King, 713 F.2d 627, 631 (11th Cir.1983) (internal citations omitted). See United 

States v. Frick, 588 F.2d 531, 537 (5th Cir.1979) (without other evidence that the 

defendants were part of the conspiracy, not only was the government’s need high, but the 

evidence was very probative). In this case, both parties concede that Google search 

evidence was critical to the State’s case. In fact, the prosecutor admitted during the 

hearing on the motion that denying the motion “will cripple my case.” The essential nature 

of the evidence increased its already-high probative value and militated in favor of 

admittance. 

{¶ 33} We conclude that there were seven Google searches that were relevant and 

the probative value of which was not substantially outweighed by the danger of unfair 

prejudice: “Detecting the presence of male DNA in cases of sexual assault without 

ejaculation,” “Detecting seminal fluid and saliva in sexual assault kits,” “Detecting saliva 

inside a vagina,” “Digital vaginal DNA life,” “How long does skin DNA last in a woman’s 

body?,” “How long does skin DNA last?,” and “How long can DNA last in a vagina?” 
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However, the trial court is granted broad discretion in evidentiary matters and we can only 

disturb its decision if it is unreasonable, arbitrary, or unconscionable. State v. Malloy, 2d 

Dist. Clark No. 11CA0021, 2012-Ohio-2664, ¶ 24. “It is to be expected that most instances 

of abuse of discretion will result in decisions that are simply unreasonable, rather than 

decisions that are unconscionable or arbitrary.” Id. 

{¶ 34} While the trial court has broad discretion, it only goes so far. If the trial court 

committed a legal error in its ruling, “that ruling necessarily constitutes an abuse of 

discretion, since the trial court had no discretion to commit a legal error.” State v. Pierce, 

2011-Ohio-4873, 968 N.E.2d 1019, ¶ 72 (2d Dist.). Most of the trial court’s analysis is 

based on the faulty Evid.R. 404(B) reasoning; the Evid.R. 403 analysis was essentially a 

fallback argument that consisted of two sentences and a block quote. Notably, a line from 

the block quote stated that “the trial court’s analysis under this rule should be robust[.]” 

{¶ 35} The seven Google searches cited in paragraph 33 should not have been 

excluded because they were relevant and their probative value outweighed the danger of 

unfair prejudice. As to those, the State’s second assignment of error is sustained. The 

remaining queries, cited in paragraph 26, had little relevance or probative value, and were 

properly excluded from trial. The State’s second assignment of error is overruled as to 

those. 

III. Conclusion 

{¶ 36} The trial court abused its discretion when it excluded the following Google 

searches from trial: “Detecting the presence of male DNA in cases of sexual assault 

without ejaculation,” “Detecting seminal fluid and saliva in sexual assault kits,” “Detecting 
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saliva inside a vagina,” “Digital vaginal DNA life,” “How long does skin DNA last in a 

woman’s body?,” “How long does skin DNA last?,” and “How long can DNA last in a 

vagina?” The trial court’s decision will be reversed in part and affirmed in part, and the 

case will be remanded to the trial court to proceed in accordance with this opinion. 

. . . . . . . . . . . . . 

TUCKER, P. J. and WELBAUM, J., concur. 

Copies sent to: 

R. Kelly Ormsby, III 

Deborah S. Quigley 

Joseph C. Patituce 

Megan M. Patituce 

Hon. Jonathan P. Hein