State v. SutherlandState v. Sutherland
Rendered on the 2nd day of September, 2022.
DEBORAH S. QUIGLEY, Atty. Reg. No.0055455, Assistant Prosecuting Attorney, Darke County Prosecutor‘s Office, 504 South Broadway Street, Greenville, Ohio 45331 Attorney for Plaintiff-Appellee
MEGAN M. PATITUCE, Atty. Reg. No. 0081064 & JOSEPH C. PATITUCE, Atty. Reg. No. 0081384, 16855 Foltz Industrial Parkway, Strongsville, Ohio 44149 Attorneys for Defendant-Appellant
I. Facts and Procedural History
{¶ 2} In early 2020, E.S. lived with her mother, Amariah, three siblings, and Sutherland, who was engaged to be married to Amariah and was the father of two of E.S.‘s siblings. They resided first in a house in Greenville (“old house“) and then in one in Arcanum (“new house“).
{¶ 3} On the morning of April 20, 2020, Amariah took her four children to her sister‘s house (Aunt) while she was at work. The plan was for Aunt to watch the children in the morning, and then their grandmother (Grandmother) was to pick them up for the afternoon. At some point that morning, the children began to play a game called “I have a secret.” When it was E.S.‘s turn, she revealed that “Scotty‘s [Sutherland] bad.” Overhearing the revelation, Aunt pulled E.S. aside to inquire further, and once in the other room, she told Aunt that “Scotty touched me in my private. * * * Where I go to the bathroom.” Trial Tr. at 214-215.
{¶ 4} When Grandmother arrived, Aunt informed her of E.S.‘s disclosure, and after getting the children back to her house, Grandmother spoke to E.S. in the garage, where she confirmed that “Scotty touched me in a bad spot.” Trial Tr. at 216. Amariah was called, and when she arrived, Grandmother was in the garage crying. She then found E.S., who
{¶ 5} After learning of the accusations, Amariah‘s first call was to the pediatrician who suggested going to Dayton Children‘s Hospital for examination and sexual assault kit administration. Amariah took E.S. to the hospital, where she was examined, and from there they went to the Darke County Sheriff‘s Office, where they met with Detective Rachael Prickett.
{¶ 6} Detective Prickett testified that she met with E.S., Amariah, and Aunt, and then called Sutherland to notify him of the allegations against him. She did not, however, go into any details. Amariah also contacted Sutherland around 10:30 p.m. that evening, but like Detective Prickett, did not offer anything specific. Detective Prickett obtained a search warrant for Sutherland‘s phone, which was seized the following day, April 21, 2020. The phone was analyzed by deputies and the Ohio Bureau of Criminal Investigations (BCI), and it was determined that the phone had been used to make a number of incriminating Google searches, including: “Detecting the presence of male DNA in cases of sexual assault without ejaculаtion“; “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?”
{¶ 7} On June 26, 2020, Sutherland was indicted on three counts of rape (child under 10) in violation of
{¶ 8} The jury first heard testimony from E.S., who detailed three instances of inappropriate behavior by Sutherland. The first incident happened at the “old house” in Greenville. E.S. recounted that while she and her siblings were playing outside, Sutherland called her upstairs to the room he shared with Amariah. Once she arrived, Sutherland closed and locked the door and then summoned E.S. to get in bed with him. Once there, Sutherland pulled down E.S.‘s pants and underwear, and using a purple sex toy (E.S. described it as “the purple thing“), he touched her vagina. E.S. described it as “feeling weird” and testified that she told Sutherland to stop, but he continued to touch her until the other kids started knocking on the door.
{¶ 9} The next incident E.S. described happened in the “new house” in Arcanum. E.S. stated that she had spent the previous night at her grandfather‘s house, so after he dropped her off, she was tired and decided to rest on the couch. Next thing she knew, Sutherland sat down by her head, licked his finger, and put it in her anus. While the first incident was described as “feeling weird,” E.S. asserted that this time it “hurt bad.” According to E.S., she told Sutherland to stop, but he continued until she said she needed to go to the bathroom.
{¶ 10} The third incident also happened at the “new house.” This time, E.S. testified that one morning while she was upstairs asleep in her bedroom, Sutherland took her downstairs to his bed and laid her next to her sleeping little sister. Sutherland then
{¶ 11} At the close of the State‘s case-in-chief, Sutherland moved for a
{¶ 12} After deliberating for several hours and submitting a question to the court (which will be discussed in detail in assignments of error one and two), the jury found Sutherland guilty of rape in both counts. The trial court sentenced Sutherland to a prison term of 25 years to life on each count, to run concurrently, and he was classified as a Tier 3 sex offender.
{¶ 13} Sutherland has appealed and raises four аssignments of errors.
II. Mistrial Motion
{¶ 14} In his first assignment of error, Sutherland argues that the trial court erred when it denied his motion for a mistrial after it was discovered that the jury had received an exhibit that was not admitted during trial.
{¶ 15} At the close of its case-in-chief, the State moved to admit 19 exhibits; chief among them were 5A, 5B, 5C, 5D, 5E, 5F, and 5G – the admissible but incriminating
{¶ 16} After an unknown amount of deliberation with the entire Exhibit 5 in its possession, the jury sent a note to the court (which is not a part of our record) asking whether it could consider the entire exhibit since it was not discussed during trial. After conferring with counsel, the court sent back an answer which, according to the briefs and transcript, included a curative instruction. The instruction was deemed satisfactory by both parties, Trial Tr. at 508, and the exhibit was removed from the jury‘s possession. Nevertheless, Sutherland moved for a mistrial, stating, “After realizing the impact that Exhibit Number 5 could potentially have on the jury, we feel as though the jury is tainted. They are now privy to information that could infer guilt just by the nature of the exhibit itself.” Trial Tr. at 509. The trial court denied the motion.
{¶ 17} The gravamen of Sutherland‘s argument on appeal is that, even with the court‘s curative instruction, the material the jurors saw was so prejudicial that he could not have received a fair trial. The State, on the other hand, contends that while the admission of the exhibit was an error, it did not change the outcome for Sutherland.
{¶ 18} “Mistrials need to be declared only when the ends of justice so require, and a fair trial is no longer possible.” State v. Patterson, 188 Ohio App.3d 292, 2010-Ohio-2012, 935 N.E.2d 439, ¶ 69 (2d Dist.). The decision lies within the sound discretion of the
{¶ 19} Our analysis for this assignment of error is multifaceted. The first issue we must consider is if the court erred when it sеnt the entire Exhibit 5 to the jury. The answer to this first question is unquestionably yes – both parties agree. The next step in the analysis, then, is to determine how impactful the error was.
{¶ 20}
{¶ 21} As to the first element, Sutherland reasons that the information the jury saw in Exhibit 5 was so prejudicial that it necessarily affected the vеrdict. The State, on the other hand, points out that the trial court gave a curative instruction which advised the
{¶ 22} First, both parties agree that the court sent an instruction to the jurors telling them that they were to only consider the admitted portions of Exhibit 5 (5A, 5B, 5C, 5D, 5E, 5F, and 5G), and while we do not have a record of what the response actually said, the transcript is clear that both parties assented to its content. Next, Ohio courts have consistently held that juries are presumed to follow the instructions, including curative instructions given by a trial court. State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995); State v. Wood, 2d Dist. Clark No. 2016-CA-69, 2018-Ohio-875, ¶ 67. In this case, however, it is more than a presumption, as the trial court asked each juror on the record if there was “any reference or use of Exhibit 5, the BCI report?” Each one explicitly denied using or considering the unadmitted materials to reach the verdict. Trial Tr. at 511-513. The trial cоurt was able to assess the jurors’ credibility and we must defer to its judgment in that regard. State v. Phillips, 6th Dist. Lucas No. L-06-1135, 2007-Ohio-2150, ¶ 18 (the trial court is in the best position to assess juror credibility); State v. Melanson, 804 A.2d 394, 398 (Me. 2002) (“The court‘s determination of whether a juror can remain impartial is entitled to substantial deference because of the trial court‘s ability to observe and assess the juror‘s credibility.“).
{¶ 23} We recognize that this Court has, on one occasion, come down the other way on this issue. In State v. Patterson, 2010-Ohio-2012, 935 N.E.2d 439 (2d Dist.), the jury inadvertently received prejudicial material to consider during deliberations. We held
{¶ 24} Even if Sutherland could establish the first element, his argument would fail on the second, because the remaining evidence established his guilt beyond a reasonable doubt.
{¶ 25} The jury heard very specific testimony from E.S. that on multiple occasions, Sutherland touched her inappropriately on both her vagina and anus. She told the jury that each time he licked his finger and then inserted it. This testimony aligned with the Google searches found on Sutherland‘s phone (“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?“). There was sufficient evidence presented to the jury to establish guilt beyond a reasonable doubt. It was an error for the jury to see the entirety of Exhibit 5, but it was hаrmless error as Sutherland‘s substantial rights were not abrogated.
III. Record of Jury Question and Response
{¶ 27} The trial court mistakenly sent the entirety of State‘s Exhibit 5 into the jury room after the close of testimony. Approximately three hours into deliberations, the jury sent a question (the trial transcript refers to the question as Court Exhibit 2) to the court regarding consideration of the whole exhibit, which included both admitted evidence (State‘s Exhibits 5A, 5B, 5C, 5D, 5E, 5F, and 5G) and evidence that had not been discussed during trial. After off-the-record discussions, the court, along with both parties, agreed to a response and curative instruction. In the time between trial and our consideration of this case, however, the question from the jury and the response from the court have been lost or destroyed. In his second assignment of error, Sutherland argues that the trial court committed reversable error when it failed to make a record of the jury question and the court‘s response to it.
{¶ 28} Sutherland‘s legal argument is based on
{¶ 29} Further, Sutherland did not object to the curative instruction given at trial, and indeed, agreed to it, making this case akin to State v. Cottrell, 8th Dist. Cuyahoga No. 81356, 2003-Ohio-5806. In Cottrell, the defendant argued that the court had failed to clearly advise the jury regarding a gang specification because it failed to define the offenses under
{¶ 30} The Eighth District noted that while written jury instructions should be preserved as part of the record, a failure to do so is not necessarily reversible error,
IV. Sufficiency of the Evidence
{¶ 31} Sutherland‘s third assignment of error raises the claim that his convictions on Counts 1 and 2 were not supported by sufficient evidence.
{¶ 32} “[S]ufficiency is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 33} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is tо examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Marshall, 2010-Ohio-5160, 946 N.E.2d 762, ¶ 52 (2d Dist.), quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id.
{¶ 35} E.S. testified the first incident happened at the “old house” in Greenville. While the other children were outside playing, Sutherland called E.S. up to his bedroom and then locked the door once she was inside. Sutherland told E.S. to get into bed, and when she did, he pulled down her pants and underwear and рut a purple dildo “where I [E.S.] go to the bathroom * * * [to] pee.” Trial Tr. at 225-226. E.S. described the Sutherland‘s actions as feeling “weird” and said it “hurt.” Trial Tr. at 227.
{¶ 36} According to E.S.‘s testimony, the second incident occurred at the “new house” in Arcanum. E.S. told the jury that while she was lying down, resting on the couch, Sutherland sat down beside her and began showing her something on his phone. He then licked his finger and put it in her anus. E.S. testified that this incident “hurted [sic] bad.” Trial Tr. at 232.
{¶ 37} In addition to the first-hand account provided by E.S., the jury saw exhibits (5A through 5G) showing Google search results from Sutherland‘s phone which were made after he was informed by Detective Prickett that he was being investigated for abusing E.S. The searches included the following terms: “Detecting the presence of male DNA in cases of sexual assault without ejaculation (5A)“; “Detecting seminal fluid and saliva in sexual assault kits (5B)“; “How long does skin DNA last (5C)“; “How long does
{¶ 38} We will begin with Count 2 (the “new house” incident) because the analysis is straightforward. During her testimony E.S. definitively stated that Sutherland licked his finger and put it in her anus. This is demonstrated in two exchanges – one with defense counsel on cross examination and one on redirect with the State.
Defense Counsel: So, he never put his fingerprint up the hole, just on the outside?
E.S.: Like – yeah, he, like, put, like, inside.
Defense Counsel: He put it on the inside.
E.S.: Yeah.
Trial Tr. at 246. This point was reiterated during the State‘s redirect.
Prosecutor: You told me about when he touched – he licked his finger and touched where you went poop. You told me he licked his finger and touched you where you went pee. Which of them went inside you?
E.S.: Like the poop one.
Prosecutor: The poop one?
E.S.: Yeah.
Prosecutor: Okay. And that was thе one where you‘re on the couch.
E.S.: Yeah.
Trial Tr. at 251. Based on this testimony alone, there is no question that the State met the elements of rape as to Count 2. E.S. clearly described sexual conduct. The establishment of this element for Count 1 (the “old house” incident), however, is much less apparent. In
{¶ 39} During cross-examination, E.S. appeared to outright deny that there was penetration during the “old house” incident.
Defense Counsel: That purple thing was just on the outside of you, correct? It never went inside you, correct?
E.S.: No. Yeah.
Defense Counsel: So, it was just on the outside.
E.S.: Yeah.
* * *
Defense Counsel: And the purple thing didn‘t go inside you, cоrrect.
E.S.: No.
Trial Tr. at 245-247. During redirect, the closest E.S. came to describing penetration was saying that Sutherland put the “purple thing” between her legs while her legs were closed. Trial Tr. at 249. She is clearly describing sexual contact (see
{¶ 41} We conclude that the State failed to present sufficient evidence to sustain a conviction of rape in Count 1, the “old house” incident, as E.S. described sexual contact, not conduct. The State‘s evidence, however, was sufficient to convict Sutherland of GSI, in violation of
{¶ 42} Conversely, as to Count 2, the first “new house” incident, it is clear that the State did provide evidence of penetration and therefore sufficient evidence to sustain a rape conviction.
{¶ 43} Sutherland‘s assignment of error is оverruled in part and sustained in part.
V. Manifest Weight of the Evidence
{¶ 44} In his fourth assignment of error, Sutherland asserts that his convictions were against the manifest weight of the evidence. Because we already determined that the evidence was insufficient to sustain a conviction on Count 1, in this section we will
{¶ 45} When an appellate court reviews whether a conviction is against the manifest weight of the evidence, “[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A case should not be reversed as being against the manifest weight of the evidence except “‘in the exceptional case in which the evidence weighs heavily against the conviction.‘” (Emphasis added.) Id.
{¶ 46} Sutherland raises several arguments to support his manifest weight claim. The first takes aim at the credibility and believability of E.S. and her mother, Amariah. He points out that Amariah testified that she did not suspect Sutherland could do such a thing and that when Amariah first met with Detective Prickett, she told her that she “didn‘t feel it in [her] heart that [Sutherland] would do something wrong.” Trial Tr. at 303. Sutherland even points out that throughout the pendency of the case, Amariah not only continued to talk with him, but the two maintained a sexual relationship. She also testified that E.S. had not been consistent as to who abused her, at one point telling Amariah that her older brother did it. According to Amariah, E.S. once claimed the whole thing could have been a dream.
{¶ 47} Despite the alleged contradictions, “[i]t is well-established that when
{¶ 48} Finally, Sutherland contends that the Google searches found on his phone should not have been given persuasive weight because his phone “did not have a lock on it and there was no evidence as to who conducted the searches.” Appellant‘s Brief at 13. The jury clearly did nоt believe that someone else took Sutherland‘s phone and searched for incriminating information on Google. The jury also did not believe, as Sutherland posits, that the searches were innocuous – merely someone trying to find out more information about crimes of which he was accused. The searches were very specific, searched for before being told by law enforcement or Amariah of the specific allegations, and matched up with the acts E.S. accused Sutherland of committing.
{¶ 49} Wе cannot conclude that this is an exceptional case in which the evidence weighed heavily against the conviction. Accordingly, we find that Sutherland‘s conviction was not against the manifest weight of the evidence and his fourth assignment of error is
VI. Conclusion
{¶ 50} Having found that Sutherland‘s conviction for rape in Count 1 was not supported by sufficient evidence, the trial court‘s judgment of conviction will be vacated as to that Count only; the matter will be remanded for the trial court to modify its judgment to indicate that Sutherland was convicted of GSI and for sentencing on that offense. The trial court‘s judgment of conviction for rape as to Count 2 will be affirmed.
TUCKER, P.J. and WELBAUM, J., concur.
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Deborah S. Quigley
Megan M. Patituce
Joseph C. Patituce
Hon. Jonathan P. Hein