[Cite as State v. Sutherland,
2025-Ohio-488.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2024-CA-6
:
v. : Trial Court Case No. 20CR00091
:
JEFFREY SCOTT SUTHERLAND : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on February 14, 2025
...........
MICHAEL T. COLUMBUS, Attorney for Appellant
JAMES DEAN BENNETT, Attorney for Appellee
.............
HUFFMAN, J.
{¶ 1} Jeffrey Scott Sutherland appeals from the trial court’s denial of his petitions
for postconviction relief, which had alleged ineffective assistance of counsel and
prosecutorial misconduct. For the reasons that follow, the judgment of the trial court is
affirmed.
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Facts and Procedural History
{¶ 2} In December 2021, Sutherland was found guilty by a jury of two counts of
rape (child under 10) and sentenced to 25 years to life in prison. On direct appeal, we
found that his conviction for one count of rape (Count 1) had not been supported by
sufficient evidence, but that the evidence as to that count had supported a conviction on
the lesser-included offense of gross sexual imposition (GSI). We vacated the rape
conviction as to Count 1 and remanded for the trial court to modify its judgment to convict
Sutherland of GSI and sentence him for that offense. We affirmed Sutherland’s
conviction for rape as to Count 2. State v. Sutherland, 2022-Ohio-3079, ¶ 50 (2d Dist.).
{¶ 3} On February 17, 2023, Sutherland filed a petition for postconviction relief. He
raised issues of alleged ineffective assistance of counsel and prosecutorial misconduct.
Sutherland filed a second petition for postconviction relief on September 20, 2023, raising
the same issues. Sutherland supported his petitions with exhibits and his affidavits.
The State responded to both petitions.
{¶ 4} On February 7, 2024, the trial court denied Sutherland’s petitions without a
hearing. The court found that Sutherland’s allegations regarding ineffective assistance
of counsel were barred by the doctrine of res judicata, because they related directly to
matters in the trial record. Further, because new counsel had been appointed for
Sutherland on direct appeal, Sutherland could have made the ineffective assistance of
counsel allegations at that time, but he failed to do so. Accordingly, the court found that
Sutherland was barred from asserting a claim for ineffective assistance “based on matters
found in the trial record.”
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{¶ 5} The court found that Sutherland’s claim of ineffective assistance also relied
upon various items of evidence not utilized at trial: a report by children services; progress
notes by a counselor who treated the victim; Sutherland’s Police Academy Certificate; a
psychosexual report about Sutherland generated by a defense expert; and police
interview reports with witnesses. It was significant to the court that Sutherland did not
claim that the items were newly discovered evidence of material fact; rather, he argued
that the items should have been utilized by defense counsel but were not, and as such,
trial counsel was ineffective.
{¶ 6} The trial court observed that Sutherland had alleged numerous incidents of
ineffective communication between him and defense counsel during the case and at trial.
It was significant to the court that trial counsel had been retained by Sutherland, and he
could have retained substitute counsel if he believed trial counsel to be ineffective as
alleged. According to the court, this reason alone was sufficient for the court to conclude
that Sutherland’s allegations did “not state a substantial ground” for relief. The court
further noted that Sutherland had expressed satisfaction with trial counsel at the
conclusion of trial in response to questioning by the court.
{¶ 7} The court concluded that trial counsel had not been deficient, and even if
counsel should have offered additional material into evidence or communicated more
effectively with Sutherland, there was no “reasonable probability” that it would have
affected the outcome of the proceedings. Further, the court found that “the additional
proffered evidence would have been more harmful than helpful.” Accordingly, the court
determined that trial counsel’s errors, if any, were not so serious as to deprive Sutherland
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of a fair trial.
{¶ 8} Regarding prosecutorial misconduct, the court found that allegations of
ineffective communications or differences of opinion between Sutherland and trial counsel
did not provide substantive grounds for relief. The court noted that several of
Sutherland’s allegations were based on matters in the record, namely the prosecutor’s
comments during closing arguments, State’s Exhibit 5, and the State’s use of
Sutherland’s Google searches. The court found that res judicata barred Sutherland’s
claims and also noted that we previously had concluded that “It was error for the jury to
see the entirety of Exhibit 5, but it was harmless error as Sutherland’s substantial rights
were not abrogated.” Sutherland, 2022-Ohio-3079, at ¶ 25.
{¶ 9} Regarding Sutherland’s allegation of prosecutorial misconduct in the nature
of witness tampering, namely the prosecutor’s alleged nodding, head shaking, and facial
expressions during witness testimony, the court found that Sutherland’s reliance upon
State v. Tilley, 2012-Ohio-1533, ¶ 26 (8th Dist.), was misplaced. The trial court
distinguished Tilley, noting that the Eighth District “granted post-conviction relief because
the prosecutor’s questions ‘were improper and wrongfully impugned the credibility of the
defense witness,’ not because the prosecutor nodded in agreement with the witness.”
(Emphasis added.) The court found that it appeared “beyond a reasonable doubt that
the jury would have found the [Sutherland] guilty even absent the alleged misconduct.”
{¶ 10} After reviewing the record from the trial proceedings and the evidence filed
by the parties in the postconviction proceedings, the trial court concluded that Sutherland
had failed to establish substantive grounds for relief requiring a hearing. Noting that
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Sutherland’s attorney had provided significant detail in support of the allegations in the
petitions, including two affidavits by Sutherland and copies of the exhibits Sutherland
claimed should have been introduced at trial, the court further found that a hearing on the
pending motions “would not assist the Court – merely stating ‘in person’ what has already
been stated ‘in brief’ is not necessary. Plus, the exhibits attached to Defendant’s motion
require no oral explanation or context.”
{¶ 11} Sutherland appeals from the denial of his petitions without a hearing.
Assignments of Error and Analysis
{¶ 12} Sutherland’s first assignment of error is:
APPELLANT’S PETITIONS FOR POST-CONVICTION RELIEF
PRESENTED SUBSTANTIVE GROUNDS SUFFICIENT TO GRANT
RELIEF FROM CONVICTION LET ALONE A HEARING TO PERMIT THE
PRESENTATION OF EVIDENCE OUTSIDE THE TRIAL COURT AND
APPELLATE RECORDS.
Sutherland makes four arguments under this assignment of error: the
prosecutor engaged in misconduct by “intentionally delivering to the jury the highly
prejudicial and non-probative unredacted Exhibit 5”; the prosecutor tampered with
witness testimony, as allegedly reflected in video of the trial; the prosecutor
engaged in misconduct as demonstrated by video evidence outside the record;
and res judicata did not apply to the alleged video evidence. Sutherland claims
that the prosecutor’s actions denied Sutherland his constitutionally-protected right
to a fair and impartial trial.
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{¶ 13} R.C. 2953.21 governs petitions for postconviction relief. R.C.
2953.21(A)(1)(a) provides:
A person in any of the following categories may file a petition in the court
that imposed sentence, stating the grounds for relief relied upon, and asking
the court to vacate or set aside the judgment or sentence or to grant other
appropriate relief:
(i) Any person who has been convicted of a criminal offense . . . and who
claims there was such a denial or infringement of the person's rights as to
render the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States.
{¶ 14} “A petition for ‘postconviction relief is a means by which the petitioner may
present constitutional issues to the court that would otherwise be impossible to review
because the evidence supporting those issues is not contained in the record of the
petitioner's criminal conviction.’ ” State v. Mott, 2022-Ohio-2894, ¶ 10 (2d Dist.), quoting
State v. Monroe,
2015-Ohio-844, ¶ 37 (10th Dist.). The postconviction relief process is
a civil collateral attack on a criminal judgment and is not an appeal of the judgment. State
v. Calhoun,
86 Ohio St.3d 279, 281 (1999).
{¶ 15} The petitioner “may file a supporting affidavit and other documentary
evidence in support of the claim for relief.” R.C. 2953.21(A)(1)(b). The trial court is
required to consider the petition and any supporting affidavits and documentary evidence.
R.C. 2953.21(D). “When the evidence a defendant relies upon [is] dehors the record that
evidence must meet a threshold of cogency.” State v. Hill, 2005-Ohio-3176, ¶ 8 (2d
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Dist.), quoting State v. Lawson, 103 Ohio App.3d 307 (12th Dist.1995). “Cogent evidence
is that which is more than ‘marginally significant’ and advances a claim ‘beyond mere
hypothesis and desire for further discovery.’ ”
Id.
{¶ 16} A postconviction relief petitioner is not automatically entitled to a hearing.
Calhoun at 282. Instead, “a trial court has a gatekeeping role as to whether a defendant
will even receive a hearing.” State v. Gondor,
2006-Ohio-6679, ¶ 51. Before granting
a hearing on a petition, the trial court shall determine whether there are substantive
grounds for relief. State v. Perry,
2016-Ohio-4582, ¶ 24 (2d Dist.). It is the petitioner's
initial burden to provide evidence containing sufficient operative facts to show a
cognizable claim of constitutional error. State v. Kapper,
5 Ohio St.3d 36, 37-38 (1983).
A postconviction relief petition may be denied, without a hearing, if the petition and its
supporting evidentiary documents do not contain operative facts that would, if proven,
establish a substantive ground for relief. State v. Armstrong,
56 Ohio App.3d 105, 108
(8th Dist. 1988). “A petitioner is not entitled to a hearing if his claim for relief is belied by
the record and is unsupported by any operative facts other than [his] own self-serving
affidavit or statements in his petition, which alone are legally insufficient to rebut the
record on review.”
Kapper at 38. “Broad conclusory allegations are insufficient, as a
matter of law, to require a hearing.” State v. Coleman,
2005-Ohio-3874, ¶ 17 (2d Dist.).
{¶ 17} Res judicata is applicable in all postconviction relief proceedings. State v.
Blanton, 2022-Ohio-3985, ¶ 43. In State v. Goldwire,
2005-Ohio-5784, ¶ 11 (2d Dist.),
we discussed the role of res judicata in the analysis of petitions for postconviction relief:
“The most significant restriction on Ohio's statutory procedure for post-
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conviction relief is that the doctrine of res judicata requires that the claim
presented in support of the petition represent error supported by evidence
outside the record generated by the direct criminal proceedings.” State v.
Monroe, 2005-Ohio-5242, [¶ 9 (10th Dist.)]. “Under the doctrine of res
judicata, a final judgment of conviction bars the convicted defendant from
raising and litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that was raised
or could have been raised by the defendant at the trial which resulted in that
judgment of conviction or on an appeal from that judgment.” State v. Perry
(1967), 10 Ohio St.2d 175, 180 . . . . “Our statutes do not contemplate
relitigation of those claims in postconviction proceedings where there are
no allegations to show that they could not have been fully adjudicated by
the judgment of conviction and an appeal therefrom.” Id. “To overcome
the res judicata bar, the petitioner must produce new evidence that renders
the judgment void or voidable, and show that he could not have appealed
the claims based upon information contained in the original record.” State
v. Aldridge, [120 Ohio App.3d 122, 151 (1997)]. “ ‘Res judicata also implicitly
bars a petitioner from ‘repackaging’ evidence or issues which either were,
or could have been, raised, in the context of the petitioner's trial or direct
appeal.[’] ” Monroe.
“For a defendant to avoid dismissal of the petition by operation of res judicata, the
evidence supporting the claims in the petition must be competent, relevant, and material
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evidence outside the trial court record, and it must not be evidence that existed or was
available for use at the time of trial. . . .” State v. Jackson, 2007-Ohio-1474, ¶ 21 (10th
Dist.).
{¶ 18} “We review a trial court's denial of post-conviction relief under R.C. 2953.21
for an abuse of discretion . . . .” State v. White, 2008-Ohio-1623, ¶ 45. “The term ‘abuse
of discretion’ has been defined as a decision that is unreasonable, arbitrary, or
unconscionable.” (Citation omitted.) State v. Howard,
2014-Ohio-4602, ¶ 8 (2d Dist.).
{¶ 19} With respect to prosecutorial misconduct, the test “is whether remarks [or
actions] were improper and, if so, whether they prejudicially affected substantial rights of
the accused.” State v. Jones, 90 Ohio St.3d 403, 420 (2000), citing State v. Smith,
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Ohio St.3d 13, 14 (1984). “The touchstone of the analysis ‘is the fairness of the trial, not
the culpability of the prosecutor.’ ” State v. Garrett,
2022-Ohio-4218, ¶ 144, quoting
Smith v. Phillips,
455 U.S. 209, 219 (1982). “Where it is clear beyond a reasonable doubt
that a jury would have found the defendant guilty even absent the alleged misconduct,
the defendant has not been prejudiced, and his conviction will not be reversed.” State v.
Stevenson,
2008-Ohio-2900, ¶ 42 (2d Dist.), citing State v. Loza,
71 Ohio St.3d 61, 78
(1994).
1. Exhibit 5
{¶ 20} As the trial court noted, in Sutherland’s direct appeal, we discussed Exhibit
5 in the context of a motion for mistrial that Sutherland had filed and the trial court had
denied. Sutherland, 2022-Ohio-3079, at ¶ 14. Exhibit 5 contained “admissible but
incriminating” Google searches found on Sutherland’s phone and part of an Ohio Bureau
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of Criminal Investigation (BCI) report. Id. at ¶ 15. The Google searches included:
“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?” Id. at ¶ 6.
{¶ 21} The issue on appeal was that, instead of sending the jury only the Google
searches, “the entire BCI report was inadvertently sent to the jury room (which included
internet searches for ‘father-step-daughter’ pornography) that the State did not bring up
during testimony or attempt to admit.” Id. at ¶ 15. After the jury asked the court if it was
permitted to consider the entire exhibit since it had not been discussed at trial in its
entirety, the court denied the request and provided a curative instruction. Id. at ¶ 16.
Sutherland’s subsequent motion for mistrial was denied. Id.
{¶ 22} On appeal, Sutherland argued that, even with the curative instruction, “the
material the jurors saw was so prejudicial that he could not have received a fair trial.” Id.
at ¶ 17. We concluded that, although there were portions of Exhibit 5 “that painted
[Sutherland] in an extremely unfavorable light,” it did not impact the trial. Id. at ¶ 21. We
found it significant that both parties had assented to the content of the curative instruction,
noting that “Ohio courts have consistently held that juries are presumed to follow the
instructions, including curative instructions given by a trial court.” Id. at ¶ 22. Further,
in response to a question to every juror by the court, “[e]ach one explicitly denied using
or considering the unadmitted materials to reach the verdict.” Id. We observed that the
evidence in question “did not prove an element of the crime, it simply portrayed
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[Sutherland] in an unfavorable light.” Id. at ¶ 23. Finally, we noted that the jury had
heard explicit testimony from the victim regarding Sutherland’s conduct, and her
testimony “aligned with the Google searches found on Sutherland’s phone.” Id. at ¶ 25.
{¶ 23} The trial court correctly found that any issue as to the admission of Exhibit
5 in its entirety had been thoroughly litigated on direct appeal. Accordingly, it properly
found that the doctrine of res judicata applied to Sutherland’s arguments about the exhibit.
2. Alleged Trial Video
{¶ 24} According to Sutherland, a video of the trial reflected witness tampering by
the prosecutor in the nature of “constant gesturing and signaling to witnesses throughout
the trial to elicit the State’s desired responses.” Sutherland argues that the State used
“subtle, and not so subtle, non-verbal clues such as gestures, nods, and facial
expressions to steer witnesses” to give its desired response, which prejudiced him and
denied him a fair trial. Sutherland asserts that such alleged tampering was “particularly
concerning” with respect to the testimony from the victim and called her credibility and
“true independent recollection” into question.
{¶ 25} Sutherland asserts that the video of the trial was neither in the trial court
record nor the appellate court record, and his motion requesting the video was denied.
He argues that “[n]otably, the trial court did not deny that the surveillance video shows
what . . . Sutherland alleges,” and he asserts that the video “contains the requisite ‘factual
allegations’ ” to support his petitions.
{¶ 26} Finally, Sutherland asserts that the allegations in his petitions “could not
have been litigated at trial or on appeal as the surveillance video was not part of the record
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or available. The sealed video is competent, relevant, and material evidence outside the
trial record that was unavailable at trial or on appeal and currently unavailable for this
Court to review.”
{¶ 27} The record reflects that Sutherland filed a motion to release the trial video
on February 26, 2024, and the trial court denied the motion on March 22, 2024. The
court noted that the issue had been previously decided when, on December 13, 2021, the
court granted a joint motion by the parties not to live-stream the trial on YouTube. The
court stated that, because of this agreement, no video recording of the trial on the court’s
recording system had been made. The court also stated that, to the extent Sutherland
sought “security surveillance video administered by the Darke County Sheriff’s
Department, the State indicated that it approved . . . Sutherland’s request to possess
surveillance video footage from the hearing, with the limitation that it would be for
‘counsel-eyes only.’ ”1 The court noted that Sutherland’s attorney had been allowed to
view the surveillance video.
{¶ 28} The trial court did not abuse its discretion when it concluded that Sutherland
had failed to demonstrate substantive grounds for relief on the basis of alleged witness
tampering. Sutherland was present during the alleged gesturing and was therefore
aware of it at that time. Because this issue occurred at trial and could have been made
1
Crim.R. 16(C) states: “The prosecuting attorney may designate any material subject to
disclosure under this rule as ‘counsel only’ by stamping a prominent notice on each page
or thing so designated. . . . Except as otherwise provided, ‘counsel only’ material may
not be shown to the defendant or any other person, but may be disclosed only to defense
counsel, or the agents or employees of defense counsel, and may not otherwise be
reproduced, copied or disseminated in any way. Defense counsel may orally
communicate the content of the ‘counsel only’ material to the defendant.”
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part of the record, it is not properly raised in postconviction relief. There was no “new
evidence.” Moreover, Sutherland’s attorney was able to view the security video and
orally communicate its contents to his client. Nonetheless, Sutherland dd not describe
with any specificity the actions by which the prosecutor allegedly coached the witnesses
or identify specific portions of testimony where these actions allegedly occurred; he made
only self-serving and vague arguments about the prosecutor’s alleged gestures, nods,
and facial expressions throughout the proceedings.
{¶ 29} Finally, the trial court thoroughly, paragraph by paragraph, reviewed
Sutherland’s petitions for postconviction relief. The trial court did not abuse its discretion
in concluding that the supporting documents lacked operative facts that would establish
grounds for relief if proven. Thus, Sutherland was not entitled to a hearing. For the
foregoing reasons, Sutherland’s first assignment of error is overruled.
{¶ 30} Sutherland’s second assignment of error is as follows:
THE TRIAL COURT ERRED BY REFUSING TO RELEASE THE
SURVEILLANCE VIDEO AS IT IS DISCOVERABLE EVIDENCE.
{¶ 31} In his second assignment of error, Sutherland asserts that the trial court did
not provide “any legitimate reason why the surveillance video could not be used in a post-
conviction hearing” with safeguards sufficient to protect the identities of the jurors and the
victim from disclosure. Sutherland notes that the parties already know the identities of
the jurors and victim.
{¶ 32} In light of the parties’ agreement that the trial would not be recorded,
Sutherland’s first-hand knowledge of the prosecutor’s alleged gestures, nods, and facial
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expressions at trial, and his failure to specify how any such motions impacted the outcome
of the trial, the trial court reasonably concluded that the surveillance video did not provide
a basis for postconviction relief. Thus, Sutherland’s second assignment of error is
without merit.
{¶ 33} The judgment of the trial court is affirmed.
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EPLEY, P.J. and LEWIS, J., concur.
