[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 : : : : : : : : : : 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. QUIGL EY, Atty. Reg. No. 0055455, Darke County Prosecutor’s Office, Appellate Divisi on, 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

. . . . . . . . . . . . . EPLEY, J.-2-

{¶ 1} Pursuant to Crim.R. 12(K), appellant State of Ohio appeals from the trial court’s pretrial decision excluding from trial what it characte rized as “other acts” evidence. The court found the evidence (in the form of Google searches fo und on DefendantAppellee Jeffrey Scott Sutherland’s phone) to be incongruous wi th 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 re mand 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 Dar ke County Sheriff’s Office seized and searched Sutherland’s cell phone pursuant to a warra nt. {¶ 3} On June 26, 2020, Sutherland was indicted on three counts of ra pe of a victim under the age of ten, felonies of the first degree, and one cou nt of disseminating matter harmful to a juvenile, a third-degree felony. Sutherland entere d 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 i ntroduce “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 aft er CV disclosed the alleged abuse. While the record is silent on the matter, it app ears from the parties’ briefs that Sutherland spoke with deputies that day as well. Sutherlan d filed a motion in opposition on March 17, 2021.-3- {¶ 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 woul d introduce evidence and testimony from a Bureau of Criminal Investigation forensic expe rt that would show specific Google searches found on Sutherland’s phone the day after CV di sclosed the alleged abuse. The Google searches were as follows: (1) “what if I’m ac cused of touching a child,” (2) “how long to arrest someone,” (3) “How long does skin DNA l ast,” (4) “detecting the presence of male DNA in cases of sexual assault without ejacula tion,” (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) “detect ing 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 d isclosed. {¶ 6} After a lengthy back-and-forth between the parties and the tria l 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 err or. II. Admissibility of Google searches {¶ 7} In its first assignment of error, the State argues that the tri al 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) “oth er acts” evidence. We conclude that the Google searches were not “other acts” evidenc e and overrule the assignment of error. In its second assignment of error, the Sta te contends that the trial court abused its discretion when it excluded the Google searche s. For reasons other than-4- 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 prin ciple 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 prope nsity 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 t rait of character is not admissible for the purpose of proving action i n conformity therewith on a particular occasion.” Evid.R. 404(A). In other words, it does n ot necessarily follow that because a person committed a crime in the past, he or she commi tted 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 s ometimes admissible for other purposes such as proof of motive, opportunity, preparatio n, plan, intent, absence of mistake, identity, or knowledge.” Evid.R. 404(B). “The key is t hat the evidence must prove something other than the defendant’s disposition to commit cert ain acts. Thus, while evidence showing the defendant's character or propensity to com mit crimes or acts is forbidden, evidence of other acts is admissible when the eviden ce 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 po ints to the “knowledge”-5- 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 whi ch 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 bedr oom. To help prove its case, the State submitted evidence that the defendant had previ ously burglarized the house and admitted to knowledge of the layout of the victim’s h ome 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 c abinet

and took the valuable coin collection that was located within. The majority of the residence was left undisturbed and, as evidence and test imony at trial showed, the boys knew where they were going when they entered t he residence. The testimony of Officer Kenner relaying Joshua Snyd er's knowledge of the residence and the location of valuables within the residence was relevant to the issue of proving complicity to co mmit burglary

in the current case. * * *-6- Id . at ¶ 14. {¶ 14} The court ultimately held that the “other acts” evidence was a ppropriate 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 witho ut 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 trespas s. The State sought, over defense objection, to admit evidence that the defendant had fou r previous instances of criminal trespass at this particular apartment complex to demon strate 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 know ledge 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 admi ssible to demonstrate defendant knew current telemarketing company was engaged in fra ud). {¶ 16} The archetypal Evid.R. 404(B) “knowledge” cases, including the just-cited examples, are different than this case. In those cases, the acc used 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 s earches, find out the information, and then do the illic it 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 t rial court used an Evid.R. 404(B) analysis to reach their conclusions, we find that they w ere mistaken. The Google-7- 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 esta blishing 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 affirmativ e step to conceal conduct or avoid conseque nces of his or her illicit dea lings, that person has demonstrated “consciousness of guilt.” For instance, the Ohio S upreme Court has commented that “today [it is] universally conceded that the fac t of an accused’s flight, escape from custody, resistance to arrest, concealment, assumpt ion 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 as k 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 al leged 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 clai m. 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 c onsent,” “sex laws,”-8- “internet crimes,” “spousal privilege,” and “deleting email.” T he evidence was admitted and during closing arguments, the prosecutor asked the jury, “I f [defendant] didn’t think he did anything wrong, why is he going home and looking at thos e 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 c omments 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, esse ntially precluding the Eighth District from deciding the question of the propriety of the int ernet 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 typ ical 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 probati ve as direct evidence,” State

v. Winton , 2d Dist. Montgomery No. 27043, 2017-Ohio-6908, ¶ 23, and an a ccused 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” evid ence. Instead, we find-9- 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 pre judicial {¶ 23} “A trial court has broad discretion to admit or exclude evidenc e, and its exercise of that discretion will not be disturbed on appeal abs ent an abuse of discretion.”

State v. Hunt , 2d Dist. Darke No. 2018-CA-9, 2019-Ohio-2352, ¶ 27. A trial c ourt 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 “relevan t” evidence. To be relevant, evidence must have a “tendency to make the existence of any fac t that is of consequence to the determination of the action more or less probable than i t would be without the evidence.” Evid.R. 401. In other words, there must be some prob ative value to the evidence. Generally, relevant evidence is admissible. Evid.R. 4 02. {¶ 25} In its written decision excluding the Google search evidence, t he trial court did not make a determination of the evidence’s relevance; inste ad, it skipped ahead to the next step in the analysis – determining the level of prejud ice. We find, however, that the evidence was relevant. Overall, these Google queries made t he State’s contention that Sutherland sexually abused CV more probable than without t hem. However, some of the Google results were more probative than others. {¶ 26} Queries such as: “What if I’m accused of touching a child?” “Ho w long to arrest someone?” are minimally probative. As Sutherland argues in his brief, these Google searches could realistically be nothing more than a pers on trying to find out more information about topics that were discussed during his convers ation with detectives. The-10- probative value of these two queries was minimal and rendered t hem not relevant, thus inadmissible. The trial court did not err in excluding those se arches. {¶ 27} The remaining searches, however, were much more specific and pr obative. Googling topics such as “Detecting the presence of male DNA in cases of sexual assault without ejaculation,” “Detecting seminal fluid and saliva in se xual 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 th an the innocuous searches mentioned above. A jury could have reasonably found those queri es, as the State posits, to be evidence of guilt, or as Evid.R. 401 puts it, the searche s 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 searc hes are probative and

relevant. {¶ 28} Finding that evidence is relevant is not the end of the analysi s, however. A trial court may still exclude relevant evidence if its probativ e value is substantially outweighed by the danger of unfair prejudice. Evid.R. 403. “Exc lusion 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 preju dice is that quality of evidence which might result in an improper basis for a jury dec ision.” Oberlin v. Akron

Gen. Med. Ctr ., 91 Ohio St.3d 169, 172, 2001-Ohio-248, 743 N.E.2d 890. If th e 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 prejudic ial and should be excluded. Id.-11- {¶ 29} “[W]hen determining whether the relevance of evidence is outwei ghed 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 h ave characterized Evid.R. 403 as an “extraordinary remedy” which sh ould only be used sparingly because it permits the exclusion of otherwise relevan t 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 f orce, 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) sce nario where the “other acts” evidence were more “icing on the cake” than the “main cou rse,” but we have already held that the Google searches are not “other acts” evidence, bu t rather circumstantial

evidence which is treated the same as direct evidence. Sutherla nd 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 Suth erland puts it) “seeking to educate himself on what he was interrogated upon.” The remainin g seven were much more probative. {¶ 31} To be sure, the Google searches were prejudicial, just like mos t 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 t he jury’s emotions rather than-12- 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 admiss ion because the dangers associated with the potentially inflammatory evidence must subs tantially 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 admi tted due to their importance to the case. While prosecutorial need alone does not mean probative value outweighs prejudice, “the more essential the evidence, th e 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 govern ment’s need high, but the evidence was very probative). In this case, both parties conced e that Google search evidence was critical to the State’s case. In fact, the prosecu tor admitted during the hearing on the motion that denyin g 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 rel evant and the probative value of which was not substantially outweighed b y the danger of unfair prejudice: “Detecting the presence of male DNA in cases of sexu al assault without ejaculation,” “Detecting seminal fluid and saliva in sexual ass ault kits,” “Detecting saliva inside a vagina,” “Digital vaginal DNA life,” “How long does sk in DNA last in a woman’s body?,” “How long does skin DNA last?,” and “How long can DNA l ast in a vagina?”-13- However, the trial court is granted broad discretion in evident iary matters and we can only disturb its decision if it is unreasonable, arbitrary, or uncon scionable. State v. Malloy , 2d Dist. Clark No. 11CA0021, 2012-Ohio-2664, ¶ 24. “It is to be ex pected 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 t rial court’s analysis is based on the faulty Evid.R. 404(B) reasoning; the Evid.R. 403 a nalysis was essentially a fallback argument that consisted of two sentences and a block q uote. Notably, a line from the block quote stated that “the trial court’s analysis under t his 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 o utweighed 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 foll owing Google searches from trial: “Detecting the presence of male DNA in cas es of sexual assault without ejaculation,” “Detecting seminal fluid and saliva in se xual assault kits,” “Detecting-14- 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 c an DNA last in a vagina?” The trial court’s decision will be reversed in part an d affirmed in part, and the case will be remanded to the trial court to proceed in accordan ce 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