State v. Sutherland, 2021 Ohio 2433

On April 21, 2020 police seized Sutherland’s phone under warrant after a child disclosed alleged sexual abuse the prior day; the phone contained Google searches made April 21.
Sutherland was indicted on three counts of first-degree rape (victim under ten) and one count of disseminating matter harmful to a juvenile; he pleaded not guilty.
The State filed notice under Evid.R. 404(B) seeking to admit the Google searches and requested a consciousness-of-guilt jury instruction; the searches were limited in the proffer to search terms (not results).
The proffered searches included two general queries (e.g., “what if I’m accused of touching a child,” “how long to arrest someone”) and seven technical DNA/forensics queries concerning detection and longevity of male/skin/DNA in a vagina.
The trial court excluded the searches pretrial; the State appealed under Crim.R. 12(K). The appellate court held the searches were not 404(B) other-acts evidence but were circumstantial evidence and reversed in part, remanding for trial with seven searches admitted and two excluded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Google searches are "other acts" evidence admissible under Evid.R. 404(B) (knowledge exception)	State: searches show post-offense knowledge and fit the 404(B) "knowledge" purpose, so admissible as other acts.	Sutherland: searches are propensity/other-acts evidence or otherwise inadmissible; prejudicial.	Court: Not 404(B) other-acts. Because searches were made after the alleged offense, they operate as circumstantial evidence, not prior "other acts" under Evid.R. 404(B).
Whether the trial court abused its discretion excluding the searches under Evid.R. 401/403 (relevance vs. unfair prejudice)	State: searches were highly probative and essential to the prosecution; exclusion would "cripple" the case.	Sutherland: some searches are innocuous or merely reflect post-interview research and would be unfairly prejudicial if admitted.	Court: Split the proffer. Two general queries were minimally probative and properly excluded. Seven technical DNA/forensics searches were relevant and their probative value was not substantially outweighed by unfair prejudice, so exclusion was an abuse of discretion as to those seven (they must be admitted).

State v. Hartman, 161 N.E.3d 651 (Ohio 2020) (governs scope and permissible non-propensity purposes of Evid.R. 404(B))
State v. Curry, 330 N.E.2d 720 (Ohio 1975) (general principle excluding proof of defendant's propensity)
State v. Williams, 679 N.E.2d 646 (Ohio 1997) (examples of consciousness-of-guilt conduct admissible)
State v. Nicely, 529 N.E.2d 1236 (Ohio 1988) (circumstantial evidence can suffice for conviction)
Oberlin v. Akron Gen. Med. Ctr., 743 N.E.2d 890 (Ohio 2001) (definition of unfair prejudice under Evid.R. 403)
United States v. Blitz, 151 F.3d 1002 (9th Cir. 1998) (prior conduct admissible to show knowledge in white-collar context)
United States v. Meling, 47 F.3d 1546 (9th Cir. 1995) (probative value of consciousness-of-guilt evidence)
United States v. Meester, 762 F.2d 867 (11th Cir. 1985) (Evid.R./Fed. R. Evid. 403 is an extraordinary remedy; exclude only scant or cumulative matter)
United States v. McRae, 593 F.2d 700 (5th Cir. 1979) (danger of prejudice must substantially outweigh probative force)