Abuse of a Corpse


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

R.C. 2929.01 -- Abuse of a corpse.
State v. Condon, 152 Ohio App. 3d 629, 2003-Ohio-2335 -- Fine arts photographer was convicted of abuse of a corpse after taking posed pictures at the morgue without authorization. (1) The content of the photos is protected by the First Amendment, and had the defendant obtained authorization he would have been permitted to express himself by taking the pictures he did. A Museum would be free to display such photos. It is the manner in which the photos were taken that is at issue. Court differentiates news photos taken in a public place. (2) R.C. 2929.01 is not impermissibly vague or overbroad. (3) Prosecutor's office representation of county employees sued civilly by families did not give rise to a conflict of interest forcing disqualification of the prosecutor's office from undertaking prosecution. (4) Court accepts the mere act of photography as abuse, since it was disrespectful treatment of the bodies. Use of props didn't help, but faults also the harsh glare of the lights. Lack of family consent is not an element of the offense, but consent forms might provide exoneration. (5) Recklessness element proven, citing community mores and security checkpoints at the morgue. (6) Prosecutorial misconduct does not merit reversal. (7) Albeit fifth degree felonies, prison sentences were justified, though not the maximum. Taking photos was not the worst form of the offense. Photographer was not a public official and did not use his professional position to facilitate his crimes.
State v. Tobias, Hamilton App. No. C-020261, 2003-Ohio-2336 -- Junior pathologist at the Hamilton County Morgue was convicted of aiding and abetting in the abuse of a corpse based on his presence at the time photos at issue in State v. Condon were taken. The evidence was insufficient to sustain conviction as it establishes no more than mere presence at the time crimes were committed by another.
State v. Condon, 157 Ohio App. 3d 26, 2004-Ohio-2031 -- Newly discovered evidence encompasses newly available evidence. The defendant in Tobias exercised his Fifth Amendment privilege at Condon's trial, but later furnished an affidavit exculpating Condon on one count. Trial court erroneously overruled motion for leave to file a motion for a new trial.
State v. Gabriel, 170 Ohio App. 3d 393, 2007-Ohio-794 -- Tampering with evidence and gross abuse of a corpse are not allied offenses of similar import.

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.