State v. Condon

оpportunity to demonstrate that eligible she was to receive moratorium relief. Accordingly, merit, assignment Ms. Childers’s of error has and we remand this case to the trial proceedings, court for further including determining whether Ms. payment Childers initiated the moratorium process.

Judgment reversed and cause remanded. Kline, JJ., Peter B. Abele concur. Ohio, Appellee,

The STATE of v.

CONDON, Appellant. Condon, State [Cite as 152 Ohio 2003-Ohio-2335.] Ohio, Appeals

Court of District, First County. Hamilton No. C-020262. 9,May Decided 2003. Anton Allen, Attorney, and County Prosecuting K. Hamilton Judith Michael Attorney, for Prosecuting appellee. Assistant Lapp, Schwartz, L.L.P., M.

Sirkin, Piñales, H. Louis Sirkin and Jennifer Mezibov & Kinsley, appellant.

Gorman, Judge. Condon, from his conviction defendant-appellant, appeals Thomas corpses, grossly abusing eight on counts of different violations eight and sentence 2927.01(B). law, prohibits anyone, The statute without authorization R.C. community corpse way outrage a human in a would reasonable “to treat mem- permission family without official the consent Acting sensibilities.” art, bers, corpses photographic taking pictures as models for his Condon used them, in the props, they which he as awaited retrieval posed some of harm Morgue. largely upon Hamilton Based extreme emotional County done, they what had the trial upon inflicted the families after discovered Condon counts, finding maximum on them imposed one-year sentence seven offense, lesser, be forms of the six-month sentence on among worst two remaining count. The court the two maximum sentences counts ordered for a consecutively, on count six to served and five the six-month sentence years. two and imprisonment total one-half period assignments of error. Besides viola- presents alleging twelve

2}{¶ misconduct, prosecutorial errors in rights, of his Fourth Amendment tions trial, use of asserts that his unauthorized the conduct of artistic objects photographic protected expression of his art form Further, сhallenges constitutionality First of R.C. under the Amendment. he 2927.01(B), overly the First statute both broad under arguing vagueness under the Fourteenth Amendment. Should Amendment and void statute, addressing constitutionality of the reject arguments we convictions, support to his sufficiency and challenges weight overly trial court harsh imposed as finally challenges by sentence and contrary to law. and and the First arguments all of Condon’s under the Amendment reject We

3}{¶ him, not for punish Clause, holding legitimately that the state could Due Process using eight corpses photographic for pictures, the content of the but and first the consent legal obtaining without authorization without models view, dignity was a sufficient affront to the family In our his behavior members. under corpses, props, with to constitute their abuse posed some of which he Furthermore, unconstitutionally that is not statute. we hold statute construction, nor, chill of self- a does it other forms vague given reasonable abusing corpse. that not involve a expression do not police We further that the did violate Condon’s Fourth Amend- hold to the rights. Although prosecutor’s we that some of the remarks

ment conclude error, they rise to jury unprofessional, give were did not reversible improper hold, however, trial nor was the trial unfair. that court erred We a concluding position public they crimes violated trust and Condon’s diminishing capacity forms of offense. constituted the worst Without their inflict families, certainly harm extreme emotional on the Condon’s crimes were a among examples mistreating corpse. not the worst of someone We therefore 2953.08(G)(2) modify our under authority exercise R.C. Condon’s sentences say, term counts. impose imprisonment the minimum on all We cannot two, however, by ordering trial court erred the sentences counts five reduced, consecutively. imprisonment and six to run term of is thus servеd, already thirty with credit of the sentence he from part has months. eighteen

FACTS A. Prelude Consultants, Waits, In Ernest owner Universal Media Condon, approached Terry Daly, office adminis- photographer, associate office, Hamilton County concerning trative for the their assistant Coroner’s Daly in a project explaining interest video death children. Waits also informed in, essay project separately photographic about that Condon was interested sought cycle being, “life life human cycles” capture called each including Daly explained that he could not allow Waits to do an unofficial death. creating but him if he project autopsy would be interested video asked professional purposes. educational and Hamilton Dr. County Deputy March Chief Coroner Carl Parrott Waits, Lindemann, meeting Daly, County

held a Rhonda the Hamilton administrator, making proposed Coroner’s office and Condon to discuss Dr. autopsy-training Pfalzgraf, Deputy video. Robert Chief Coroner Patholo- at gy, may present meeting. participants have been this The discussed that the to in a investigation” designed provide video was be used “death seminar account of a death with investigation, starting ending detailed the death and with adjourned The that prosecution. meeting stating with Parrott he would contact an prosecutor’s opinion regarding legal the office for the ramifications of video- taping corpses particularly whether consent of the families was needed. — that they Parrott testified discussed one of personal projects Waits’s

{¶ 7} meeting, but he did not recall discussing anything proposed specifically by Daly Condon. recalled that there was some initial regarding discussion whether and Condon could their if projects “quid pro quo” they Waits do as a worked on training video. Waits testifiеd that Condon’s project was discussed at the meeting and that Condon had given pertinent Parrott material to his project. that, Waits that he was going recalled told before forward with of the projects, the coroner’s office needed to secure from permission prosecutor’s office. He being also recalled told that the coroner’s office would maintain control complete any photographic images. over subsequently coroner’s office an opinion prosecu- received from the

8}{¶ tor’s office regarding propriety using morgue corpses autopsy- an training Although evidence, video. the letter not Daly was admitted into testified the letter stated that of morgue use for the video would be permissible only approval with court the consent of the next of kin. Daly and/or also testified that Parrott had requests declined the of Waits and Condon to pursue their individual projects. In July permission Waits and Condon received morgue enter the they determine what resources need to autopsy-training would make the video. Parrott,

According to Condon was granted only limited access to morgue autopsy view one and to take photographs limited of the autopsy for the sole purpose assessing the cost of the autopsy-training video. Parrott testified given Condon was not permission keep take or photographs personal use. Condon then visited the on at least morgue two occasions with official in August visit,

authorization 2000. On the first both merely Waits Condon visit, autopsy assessed the room. On the on August second Condon video- taped Pfalzgraf performing autopsy Brady. Pfalzgraf John testified pictures procedure. Condon also took still of the training video. regarding the cost Subsequent discussion ensued $10,000. Parrott and Lindemann testified Both

Waits submitted an estimаte budget in its and that necessary not funds that the coroner’s office did have abeyance. consequently project put was who knew what and when testimony regarding There was welter testified project. video Parrott to the cancellation regard and that had been cancelled autopsy-training that the video

informed Lindemann project after the was morgue no to be longer permission had videotape informed that testified that he was never Pfalzgraf cancelled. morgue. not in the or that allowed had been discontinued project autopsy- Daly September further testified that he informed Waits for 2000 budget not based on the set training project completed video could testified that he had informed Condon October Daly and 2001. project go would not forward.

autopsy-training video Cycles

B. Life project the video cancelled autopsy-training After October with hold, in for morgue on no had official authorization to be the longer Condon Nonetheless, of evidence was purpose, taking pictures morgue corpses. let alone morgue the and presented that after October Condon continued to visit of his pictures morgue corpses, apparently purposes continued to take the which, noted, officially he had been denied pet project, cycles,” own “life of the permission. During period entry, pictures this of unauthorized he took Richardson, Melton, Beckman, Perry Senteney, bodies of Adam Thomas Debbie Sowards, of Frith pictures apparently Barbara and Jonathan Frith. The were during young boy’s autopsy. pictures, taken some Condon had on placed props body, pictures simply or near the while some of the were body in a lying repose. state of Gamble, 7, 2001, Clyde Finally, January Tyrone on Smith and both

{¶ 14} attendants, in morgue morgue saw Condon come into the the afternoon. Accord- Smith, Tobias, he, Gamble, a ing junior pathologist, to and Dr. Jonathan were in in morgue equipment. alone when Condon came with his camera Accord- Gamble, from an ing coming Condon talked with Tobias about the smell a where autopsy performing Tobias was at the time and then entered cooler in bring lighting in body bags. cadavers were stored Gamble observed Condon one to one and one- equipment. spent Smith and Gamble testified Condon half in cooler. came out of the cooler a hours Gamble testified point, At some entered the cooler get paper number times towels. Smith home, Folchi’s standing by a for a funeral he saw Condon Christina get body and it. that Condon body photographic lights positioned around Smith testified Folchi, victim, a appeared taking pictures nineteen-year-old be accident body exposed. body that her was completely Subsequent pictures taken by by police body obtained showed Folchf s with catheter tube (a incision, shell, in her cloth eyes, objects body over her on her snail a “Will” card, music, area), positioned pubic and sheet some which were around her side, in by key book her and a her mouth. 8, 2001, January On working Brent Erke was at Robin Imaging

{¶ 15} (“Robin Photography Imaging”) Lab when he “questionable” noticed some black- and-white film into a being reproduced negative format. Erke was shocked and owner, by negatives Johnson, mortified and notified his boss and William who negatives examined the and then police. called the Johnson confirmed that the film been in brought request had Condon. At the police, Johnson made copy of the negatives original and returned the set to Condon. studio, Police obtained a warrant to search Condon’s located in Hamilton County. identical to Props those used some the photographs were discover- ed, as negatives well as both developed photographs depicting cadavers with props placed searched, next to the bodies. car was also police and the props recovered other used in the photographs. police were to identify pictured able the bodies negatives

photographs recovered from Condon. Records were introduced into evidence demonstrating the date and time each body brought into the morgue and exception released. With the of the Brady corpse, none of the bodies had been morgue at a time Condon was facility. authorized Kowal, Cal a professor of art at School, the Cincinnati Museum Art testified Condon’s behalf. He testified that photography was an “art form.” that, Kowal stated in traditional photography, the artist worked first with a negative that, to create his historically, work. He stated art dealt with body always there had representation Kowal, been of corpses. According to pictures artists did take of corpses. He stated that Andres Serrano had a show photographs morgue taken Joel-Peter with body Witkin worked parts. opinion, Kowal’s project Condon’s on cycles” “life was “valid concept.”

FIRST AND FOURTEENTH AMENDMENT ISSUES

A. Expression Freedom Condon contends his third assignment of error that the trial {¶ 19} indictment, erred his overruling motion to dismiss the when his conduct in taking photographs protected by the First According Amendment. Condon, the were photographs expression, a form of artistic and thus the manner

639 in which he constitutionally prosecu- obtained them was immune from criminal disagree. tion. We Initially important it is to make clear that this case is not about the 2927.01(B)

images against themselves. R.C. is not a blanket proscription taking were, pictures people. of dead If it the statute would be content-based and unconstitutional. The First prohibits government Amendment from restrict ing expression ideas, message, subject matter, because of its or content. See Hudgens (1976), 507, v. Natl. Labor 520, 1029, Relations Bd. 424 U.S. 96 S.Ct. 47 196. L.Ed.2d able, therefore, Had Condon been obtaining devise a means of either (or

legal authorization or the consent causa subjects mortis of his perhaps even families), the posthumous consent of their he would have been to express free Condon, himself taking pictures however, that he did. did not receive authorization, nor did he receive the consent of the families of those whose bodies he chose to photograph. office, After consulting prosecutor’s with the morgue officials denied his request permission morgue use bodies for his “life cycles” project. absolutely There is no to suggest that he ever deceased, approached the families of the perhaps because he sharp- feared the Rather, reply. himself, ness their Condon took it upon knowing he did not have permission, to enter the morgue without authorization and to turn it into studio, his photography randomly selecting corpses and their using lifeless forms subjects, going even so far plant symbolic as to props several apparent effort to enhance his artistic message. It was this conduct by Condon— the unauthorized treatment of bodies of objects others’ loved ones as to be photographed for his personal project art sought punish. the state —that Contrary to argument, the First grant Amendment did not him right to abuse a corpse purpose for the of his art. (Employing the same logic, Condon a perfect right would have if dig up graves bodies from their decided his next project cycles,” was “death a study body of the human decom- posing.) Concededly, the Supreme United States has recognized Court protection of the First Amendment spoken “does not end at the or written word ** may ‘sufficiently *[and] conduct imbued with elements of communica- ” fall tion to within the scope of the First and Fourteenth Amendments.’ Texas (1989), 397, v. 2533, Johnson 491 U.S. 109 S.Ct. quoting L.Ed.2d 405, 409, Spence Washington 418 U.S. S.Ct. L.Ed.2d 842. But the Court recognized has also that “virtually any prohibited conduct can be for an performed expressive purpose only expressive of the fact that’the actor —if with disagrees prohibition.” (1991), v. Barnes Glen Theatre Inc. 501 U.S. 560, 576, 2456, (Scalia, J., 111 S.Ct. 115 L.Ed.2d 504 concurring). Consequently, “ rejected the Court has the view that a variety ‘limitless of conduct can be thereby to in the conduct intends person engaging “speech” labeled whenever ” 397, 2533, 105 Johnson, 404, 491 109 S.Ct. U.S. supra, an idea.’ express 367, 376, (1968), 88 S.Ct. 342, v. 391 U.S. quoting United States O’Brien L.Ed.2d 1673, 672. 20 L.Ed.2d Moreover, sufficiently imbued with communi even conduct is time, subject place, Amendment is to to fall under the First

cative elements noted, has never “The First Amendment restrictions. As this court has manner whenever, wherever right engage expressive to conduct conferred absolute (1994), v. speaker may Thompson a choose.” Cincinnati or whatever manner (1976), 424 7, 15-16, 1157, U.S. citing Spock 643 N.E.2d Greer App.3d 96 Ohio 505, (1966), 385 828, 836, 1211, Adderley v. Florida U.S. 96 S.Ct. L.Ed.2d 39, 48, 87 S.Ct. 17 L.Ed.2d 149. In that abortion had no constitu- Thompson, protestors this held to their views.

tionally right trespass upon private property express protected may verbally that a he or she Similarly, person, although this court has held officer, right curse at a has no express disapproval may police even giving by running officer from tickets ahead of the officer parking obstruct the (1998), 709 N.E.2d 1224. Stayton feed a meter. See State v. Ohio And, may this court has that an adult male be convicted of recently, more held facility, a around a disorderly by following ‍‌‌‌‌‌​​​​‌‌​‌‌​​​​‌​‌​​‌‌​​​‌‌‌‌​‌‌​​​​​‌‌​​‌‌​​‍young teenage girl conduct health sexdally Bailey comments. See State v. frightening by making inappropriate her (June 21, 2002), C-010641, 1st Dist. No. 2002 WL 1343466. each of these cases, Amendment rеjected argument we the First rendered prosecution. immune from criminal proscribed behavior clarification, point pointed As a further it should also be out this without the solely photographing people permis-

case is not concerned dead A photojournalist may pictures sion of the next of kin. take of the dead—on battlefield, tragedy, or as of a such as example, public the result accident spectacle surrounding the horrible of death the attack on the World Trade generally It is understood that such newsworthy document event. Center —to protected speech part documentation is a form of photographic subject photographer of the that cannot to either criminal or press freedom family. See liability, shocking civil no matter how the sensibilities Publishing Bremmer v. Co. 247 Iowa 76 N.W.2d Journal-Tribune Prosser, by generally agreed anything “It seems to be visible 762. As noted by photograph, in a can circulation means of a public place given be recorded and description, nothing since this amounts to to the same extent as written already anyone present and what giving publicity public more than what

641 (4 Ed.1971), Prosser, of Torts would be free to see.” Handbook of the Law 117, 811.1 Section Here, however, open public inspection. were not in a corpses place

{¶ 26} It a of morgue lending library place private repose, A is not a or a museum. that the public display. public expects charge not of those ensure not handled unnecessarily gratuitously bodies of their loved ones are disturbed what the merely photographically public or examined. Condon did not document see, without took morgue permission was free to but instead entered the of what the was not allowed to see. Some of the bodies he even pictures public entеrprise. for the sake of his artistic manipulated posed props with And, finally, emphasized it should be that we are not concerned with the {¶ 27} An merely having pictures corpses possession. act of one’s art museum or not, gallery example, corpse by hanging picture public does abuse a a of it for display, grisly image. no matter how or offensive the This case is about the manner in which took the photographs, and his treatment so; doing way prosecution it is no a based upon message sought express. assignment Condon’s third of error is overruled.

{¶ 28} Vagueness

B. error, In assignment his fourth the constitu challenges tionality by asserting of R.C. 2927.01 that it is impermissibly vague. argues He plain language provide average person the statute fails to adequate prohibited notice of the conduct. A vagueness criminal statute violates the doctrine under the Due if

Process Clause the Fourteenth Amendment it does not contain “ascertain (1980), 370, 416, guilt.” Young able standards of State v. 62 Ohio St.2d 16 O.O.3d (1984), 256, 524, 406 N.E.2d 499. State v. 17 Ohio 17 App.3d Glover OBR 479 2927.01(B) 901, N.E.2d the Eighth Appellate provide District held that R.C. does such ascertainable standards. The court that “[a] observed criminal statute is not void for vagueness simply requires person because to conform to an imprecise standard,” but comprehensible only normative but when “it no specifies 258, 524, at all.” standard conduct Id. at 17 OBR 479 N.E.2d 901. The Glover court reasoned that while R.C. 2927.01 not every does define word within its ambit, “treat,” the words in the “human corpse,” “way,” contained statute — “outrages,” generally by persons and “sensibilities”—are understood of common conceivable, however, guilty abusing photojournalist 1. It is that even a could be found public corpse place manipulated one found in R.C. 2927.01 if he or she —even —under body heightening purpose photograph. for the the visual effect of a Thus, that the statute is not void for id. the court concluded intelligence. See contempo- a standard of conduct based on simply provides and that it vagueness rary community mores. See id. out, Districts, it Appellate pointed should be have The Second and Sixth (1996), App.3d Ohio Hopfer

followed the Glover decision. See State 321; 582 N.E.2d 679 N.E.2d State v. Gardner Ohio Community concerning mores persuaded by reasoning. 1014. are also its We not, view, or corpse treatment of a are our esoteric otherwise proper views, if an Irrespective religious to discern. of one’s and even one is difficult universally that the bodies of the agnostic, atheist or an is almost understood respect with the utmost and in a manner that will not dead are to be treated inflict “the hearts of friends and any pain upon more emotional wounded 724, 730, 74 D. mourners.” Commonwealth v. Browne Pa. & C.2d 1976 Indeed, in human sense that beings ingrained WL 17417. there is the dead not to trifled with. It is incredible that Condon would maintain that he are be appreciation corpses had no inherent that his treatment of the violated communi- ty principles decency, project mores. Aside from of fundamental the fact that the him rejected by had been the coroner’s office should have alerted that use of the sure, To county morgue project officially disapproved. for his art had been proceeded the unauthorized manner with which he then indicates that he well objects as art contrary understood his use was to societal accepted rules of behavior. analysis, Based we upon foregoing conclude terms R.C.

{¶ 32} 2927.01(B) sufficiently are to notice of what conduct is explicit provide prohibited 2927.01(B) Accordingly, under the statute. we hold that R.C. is not unconstitu- tionally vague.

C. Overbreadth error, Also in his fourth assignment argues R.C. 2927.01 is a effect its capable having chilling community because reference morеs, delineation, may permitted without further lead citizens to steer clear of argument fully developed ancillary behavior. The is not and is treated as arguments Condon’s other that R.C. 2907.01 inhibits free and is speech impermis discussed, sibly vague. already As we have the statute is content-neutral and designed target person’s treating corpse a conduct a in a manner that the not community only wrong, outrageous. generally finds but also Such norms are understood. The that when he into average person rightfully appreciates comes dead, unusually contact with in their circumspect he must be treatment and far, behavior, may if it too run afoul of law. The disrespectful goes 2927.01 is to if not purpose people, they already entire R.C. ensure have learned, dealing will act with reverence when with the bodies of the dead. conceive, moreover, that significant poten- We cannot R.C. 2927.01 has inhibiting permitted tial for behavior. The official comments to the section make law, clear that it does not include conduct authorized such as a mandatory autopsy Furthermore, or the exhumation of a on court body dead order. 2927.01(B) culpable required mental state for a violation R.C. is recklessness. Glover, 2901.22(C) supra, See State v. OBR N.E.2d 901. R.C. when, defines this mental state as “A person recklessly follows: acts heedless consequences, indifference a perversely disregards known risk that his likely conduct is to cause a certain or is likely result to be of certain nature.” This against definition ensures someone innocently naively commit- ting convict, the crime of abuse of a corpse. order to the state must prove the defendant knew that his of a corpse likely treatment to cause outrage to the community and that he nonetheless “perversely” disregarded that risk. A court duty statute, is under a give pоssible, whenever

reasonable construction that will it constitutionally render definite. See State v. (1983), 60, 61, 4 150, 449, Dorso Ohio 4 St.3d OBR 446 N.E.2d citing United (1954), 612, 618, 808, 989; States v. Harriss 347 U.S. 74 S.Ct. 98 L.Ed. State v. (2002), 224, so, Norris 147 Ohio 769 N.E.2d 896. being given This recklessness, that the requires culpable statute mental state of we do not perceive that R.C. 2927.01 has a potential chilling legal effect on otherwise behavior. reject We therefore argument overly the statute is broad. assignment Condon’s fourth of error is overruled.

{¶ 36} FOURTH AMENDMENT ISSUES error, assignment the fifth Condon contends that the trial court admitting erred when items an seized under invalid search warrant. Condon contends that the affidavit in support the warrant was invalid because it conclusory contained false and statements and insufficient indicia of probable cause. In particular, argues in officer’s statements the affidavit that Condon was in engaged pandering obscenity were misleading and concluso ry. An supporting enjoys affidavit a warrant a presumption

{¶ validity. (1980), 170, 201, See State v. Roberts 62 Ohio St.2d 16 O.O.3d 247. challenging accuracy N.E.2d When in a supporting statements made affidavit, provide proof the defendant must “an specifically offer which outlines false, the portions alleged of the affidavit to be the supporting reasons for the of affidavits should include the submission proof claims. This offer defendant’s satisfactorily ex statements, or their absence should be or otherwise reliable Furthermore, 178, 201, 405 247. as this 16 O.O.3d N.E.2d plained.” Id. has been held, to show that the false statement required

has the defendant truth, disregard or with reckless for the knowingly intentionally, either made (Nov. 14, 1979), 1st in mislead the court. See State Green a manner would 2674, (1978), 154, C-790012, 438 U.S. 98 S.Ct. citing No. Franks v. Delaware Dist. 57 L.Ed.2d 667. in out, of the search warrant support the state the affidavit points As also crimes of pandering obscenity, the crime of but only alleged

this case not Attached were nudity-oriented of a and use of a minor material. corpse abuse photo- crime-scene nudity autopsies the context of photographs depicting presented evidentiary the state that Condon insufficient graphs. agree We made a false support requesting material to his claim that the officer affidavit intentionally, disregard or with a reckless for the knowingly, statement either appears truth. it pointing duplicity, Absent evidence deliberate officer, preliminary with the unusual nature of the at the struggling photographs of the crimes he stage investigation, merely being overly inclusive suspected preparing were involved when he was the affidavit. also that the affidavit in of the search warrant argues support to link crimes and probable

failed establish cause because failed determining sufficiency probable to his studio. When cause an warrant, issuing magistrate affidavit submitted in of a-search must support “ whether, ‘a all practical, given make common-sense decision the circumstances him, “veracity” forth in “basis of including set the affidavit before information, knowledge” persons supplying hearsay probability there is a fair ” of a in a particular place.’ contraband or evidence crime will be found (1989), George State v. 45 Ohio 544 N.E.2d one of the paragraph St.3d 213, 238-239, 103 syllabus, quoting Illinois v. Gates 462 U.S. S.Ct.

L.Ed.2d 527. to a give great judge’s probable-cause Courts deference determina tion. paragraph syllabus. principles Id. two the With these mind and affidavit, factual considering the officer’s extensive recitation we conclude ample support finding probable information existed to that there was cause Thus, for the of a warrant. from issuance we hold the items seized illegally. studio were not The fifth of error is therefore assignment obtained overruled.

PRETRIAL ISSUES A. Evidence Exculpatory arising pretrial We next address Condon’s asserted errors from {¶ 41} error, In maintains procedures assignment and decisions. his second

645 by failing compel exculpatory that the trial court erred disclosure material asks this court to letter from particular, opinion evidence. review the Hamilton Prosecutor’s office to determine its relevance and to County if denying overturn the of the trial court disclosure of the letter we deem decision it to be material. motion, At trial an in camera pretrial hearing on the court made letter, 2, 1999. The trial

inspection opinion which was dated November motion, relevant, that “the is not it’s not finding opinion denied Condon’s evidence, alleged charged admissible in nor does authorize of the acts [it] the defendants.” 16(B)(1)(f), an obligation supply Under Crim.R. the state has

defense with guilt is favorable the accused and material to either violated, A punishment. due-process right defendant’s to a fair trial is warranted, prosecution exculpatory reversal is when the withholds evidence in a (1963), proceeding. 83, 87, criminal Brady Maryland See 373 U.S. 83 S.Ct. 1194, 10 215; (1988), 48, L.Ed.2d State v. Johnston 529 Ohio St.3d N.E.2d four of paragraph syllabus. To determine that evidence is material for due- process purposes, that, there should be a “reasonable probability had the defense, evidence been disclosed to the the result of the proceeding would have Johnston, been different.” supra, paragraph State v. five of the A syllabus. “reasonable probability” probability sufficient to undermine the “confidence in the trial result obtained without the exculpatory evidence.” State v. Jackson (1991), 29, 33, Ohio St.3d citing Bagley N.E.2d United States v. 667, 682, See, also, Johnston,

473 U.S. 105 S.Ct. 87 L.Ed.2d 481. State v. supra. Here, prosecution asked the trial court for a determination of the

materiality letter, of the and thus we are not with a confronted case where the prosecution attempted to conceal its contents from the court. The letter was proffered, and therefore we are able to review it. The letter addressed the propriety whether, producing autopsy-training coroner’s office an video and part officially project, this authorized it would be necessary for the coroner’s office first to obtain the consent of the next of kin. The issue of consent under circumstances, however, these 2927.01(B), did not arise the context of R.C. which proscribes 2741.02, the abuse of a but corpse, entirely under R.C. that protects persona against different statute an individual’s misappropriation its purposes commercial during period sixty individual’s lifetime or for a years after if prosecutor’s death. The office advised that training video reproduced purposes, necessary and sold for commercial then it would be kin pursuant Conversely, obtain consent the next of to R.C. 2741.02. prosecutor’s office also if the training advised video did not violate the use, from the exempt then the video would be restrictions on commercial that, given 2741. The letter also advised the issue Chapter of R.C. provisions identity, any autopsy-training of a video had appropriation corpse’s commercial stated, subject’s identity. The letter steps take to conceal the precautionary physical identifying to conceal the features and other “Steps should be taken tattoos, scarring, glass eyes, noticeable etc.” amputations, traits such as: that the letter did not constitute material evidence opinion We conclude guilt abusing corpses or innocence for under R.C. 2927.01. pertaining matter under an entirely entirely The letter was concerned with an different persona of an in an appropriation different statute: commercial individual’s video under R.C. 2741.02. The letter was officially autopsy-training authorized defense, probability not favorable to Condon’s nor was there reasonable have had the letter been proceeding the result of the would been different Indeed, letter, if likely presented jury, disclosed. it is to the would have issues, false only purpose: creating impression served one to confuse the jurors’ charged minds Condon was somehow the intellectual- property appropriating corpses’ personas purposes crime of for commercial abusing by treating photographic rather than them them as models for his art. importance taking steps To the extent that the letter stressed the to conceal video, identity any corpse training may used such confusion have significantly damaged absolutely steps Condon’s defense since he took no identify conceal the that he trial photographed. court concluded, therefore, correctly letter need not opinion have been Brady, supra, exculpatory, disclosed under because it was neither material nor 403(B) that it given was excludable under Evid.R. its lack of relevance and for confusion. potential

B. Interest Conflict of error, In the seventh trial assignment Condon maintains failing to dismiss prosecutor acting erred the indictment because the under a conflict of interest.2 Condon claims that he was due process denied prosecutor improperly appeared grand jury seeking because the before the against indictment Condon two after a civil lawsuit brought by weeks had been against County employees, the families of the deceased victims certain Hamilton Tobias, that, including County and Condon. Condon claims because the Hamilton required by represent county employees Prosecutor’s Office was law to jointly separatе disqualify prosecutor's 2. Condon and Tobias filed a motion to office under 6(D). similarly assignment Crim.R. The trial court overruled it. Based on Condon’s appeal, propriety overruling we do not address the this motion.

647 and lawsuit, office indicted Condon prosecutor’s civil a conflict existed when the for crimes to the civil lawsuit. relating Tobias interest, where there is a conflict of the Traditionally, potential findings issue of fact when evidentiary hearing

trial court must hold Kala v. Alumi if can overcome. determining improper appearance the See Co., Inc., 1, 1998-Ohio-439, Smelting Refining num & 81 688 N.E.2d Ohio St.3d 258, in syllabus. attorneys government But a relationship because the between firm, in a the mere relationship private office is different from the between those in appearance impropriety government in a office is not sufficient itself 13—01—16, Frederick, State v. to warrant 3d Dist. No. 20 disqualification. vicarious See (Nov. 1988), Murphy State v. -Ohio-2315, 1432039, 15, citing 2001 WL 3rd 01 9-87-35, ABA (quoting Dist. No. 1988 WL 126748 Committee on Professional 517). 342, Ethics Formal 62 A.B.A.J. Opinion Here, the a on ‍‌‌‌‌‌​​​​‌‌​‌‌​​​​‌​‌​​‌‌​​​‌‌‌‌​‌‌​​​​​‌‌​​‌‌​​‍motion to the hearing trial held the dismiss At hearing, presented supporting

indictment. the Condon no additional evidence motion, his but solely rested on the fact that the civil law suit had been filed 26, 2001, January Hamilton against County employees, and the suit included and Tobias. After the trial court overruled considering arguments, Condon the right Condon’s motion but ruled that to submit further Condon retained prior written claim of an conflict. At no time support evidence actual trial offer In of such supplemental proof. supplemental did Condon the absence proof record, in the we conclude that trial court correctly ruled that grounds disqualification prosecutor’s had not established vicarious office a conflict of upon based interest.

TRIAL ISSUES A. Weight Sufficiency error, assignment challenges weight In the ninth sufficiency reviewing sufficiency of the evidence. of the When evidence conviction, support a criminal trial we must examine the evidence admitted at in light prosecution most favorable to the and determine whether such evidence could have convinced rational of fact essential trier v. reasonable doubt. See State elements of the crime proven beyond were Thompkins, 78 Ohio St.3d State v. Jenks 380, 386, 1997-Ohio-52, 541; 678 N.E.2d paragraph syllabus, Ohio St.3d N.E.2d two State state constitutional on other superseded by grounds amendment Smith, 89, 1997-Ohio-355, deciding 80 Ohio 668. if the St.3d 684 N.E.2d sufficient, evidentiary resolve conflicts nor assess the we neither witnesses, both of fact. credibility are functions reserved the trier 767, 777-778, In a (2001), 144 761 N.E.2d 688. State v. Ohio See Willard record, weigh the entire weight-of-the-evidence challenge, we must review witnesses, inferences, credibility all consider the evidence and reasonable evidence, whether, clearly the trier of fact resolving and decide conflicts justice. supra, way miscarriage Thompkins, lost its and created a manifest granted only exceptional 678 N.E.2d 541. A new trial should be cases weighs heavily against the evidence conviction. Id. where Sufficiency 1. Lack Authorization Corpse, —Abuse of 2927.01(B) noted, as autho- provides person, except “[n]o As R.C. that {¶ 50} law, a human in a that reasonable by corpse way outrage rized shall treat would community legisla- 2927.01 sensibilities.” The comment to R.C. states formerly by specific ture the statute to cover prohibited intended “conduct a prohibitions against grave robbing corpse.” and unlawful dissection of The 2927.01(B) continues, conduct, comment also includes other kinds of such “[R.C. ] copulating mistreating corpse. with or otherwise a This section does not law, mandatory autopsy include conduct authorized such as a or the exhuma- tion of a for a body culpable required dead on order.” The mental state 2927.01(B), discussed, violatiоn of R.C. as we have is recklessness. Condon that argues taking photographs corpse purposes for artistic

{¶ 51} 2927.01(B). is insufficient evidence of “abuse” as that term is in R.C. used sufficient, that, that Additionally, assuming argues respect even it is he with five, presented count the state insufficient that he took photograph Further, argues present of Melton. that the state did not sufficient evidence legal that he acted without authorization. disagree We with taking photographs Condon of unauthorized

{¶ 52} corpse legally of a cannot rise to the level of clearly abuse. statute proscribes range provided broad of conduct that it is so and inappropriate outrage community require insensitive as to standards. The does not statute the corpse physically Treating corpse object, abused. as a mere as a value, manipulated model to be or for shock can exploited its suffice under certain Here, Condon, circumstances. never official having permission received his project, having own and lost his reason for in the legitimate being morgue one cancelled, autopsy-training after the video was nonetheless to visit the continued morgue after October 2000 to take of the for his own pictures gratuitous purposes. He to the harsh exposed eight corpses glare One, lights regard sanctity. young and camera without for their apparent boy, photographed body apparently undergoing autopsy. while the was an objectified by placing upon props Others he their bodies enhance whatever message convey. artistic he wished to We hold that such unauthorized and for the dignity was a affront to disrespectful treatment of the bodies sufficient a corpse. to determine that there had been abuse of jury took the we note pictures, As for evidence that Condon (1) Richardson, categories: photographs fell into two photographs generally or Folchi, Beckman, placed on near Brady, Senteney, props and Sowards (2) Beck- bodies, Richardson, Folchi, Brady, Senteney, photographs their Melton, man, Sowards, county morgue. and Frith taken while in the to establish that Condon presented The evidence trial was sufficient Frith, Richardson, Folchi, Melton, Brady, Senteney, photographs took the Beckman, developed print at the them morgue and Sowards had photographs took presented format. Direct evidence was negative further established that Condon took the Brady.3 of Folchi and Indirect evidence Richardson, Melton, Frith, Beckman, Senteney, and Sowards.4 photographs of presented photo- was also that Condon took testimony Sufficient from office. Parrot testified that graphs without authorization the coroner’s cycles” Both given permission pursue project. Condon was never “life Parrott come into the Daly only permission testified had an morgue space autopsy two occasions—once to view the and once to view purpose developing for the coroner’s on the instructional estimate office given morgue. video. Parrott testified that was limited access to the only Condon morgue supposed establishing Condon’s access to the was to be used for an estimate of much film autopsy-training how it would cost to an video that was to by be used the coroner’s purposes. respect office educational With to the photographs Brady, of the evidence established that given permis- Condon was view, sion to videotape, photograph Brady’s autopsy August 2000. not, however, Condon have permission photograph Brady did for artistic use, or purposes personal suggested by his as was content of of some images and the fact that the in photographs private were later found Condon’s possession. spent

3. Smith and Gamble testified that Condon had one to one and one-half hours in the cooler, coroner, taking pictures January Daly a unattended of Folchi on 2001. testified autopsy Brady, Pfalzgraf that Condon viewed the of testified that Condon had taken still photographs Brady. of Richardson, Frith, Beckman, pictures pictures pictures pictures 4. Five of fifteen of two of two Senteney, picture Brady, pictures fully developed one and three of Melton were found Richardson, Folchi, Frith, print negatives Brady, Senteney, format at Condon's office. And Beckman, Imaging. and Sowards were found either in Condon's office or at Robin For the purpose litigation, police negatives prints. negatives made those into One of Frith's enlarger also found Condon's at his office. noted, firmly As the evidence established that Condon continued to take {¶ 56} autopsy-training even after he been informed that the pictures morgue had cancelled, no had project consequently longer had been video Richardson, Melton, morgue. corpses Senteney, to be at the permission Frith, kept morgue Beckman Folchi and were at the between November Sowards morgue well after time Condon’s access to the had January been revoked. Finally, family they given members testified that had not Condon

{¶ 57} Richardson, Folchi, photographs corpses Brady, authorization to take Melton, Frith, Beckman, Senteney, family or Sowards. Lindemann testified not in the coroner’s photograph corpses appear consent forms did files that, corpse. maintained for each note while lack of authorization is family We if corpse, arguably, permission family, not elеment of abuse of from the it existed, Condon, minds, jurors’ would have exonerated at least in the as his may perceived outrageous not have as either if behavior been reckless done family’s approval. with the sum, presented we hold that the state sufficient evidence to establish Condon, acting any legal authority, eight without treated bodies such a

manner as to constitute their abuse under R.C. 2927.01. Sufficiency Culpable

2. Mental State — also argues produce the state failed to sufficient evidence recklessly knowledge photographs he acted and without that his would outrage community reasonable sensibilities. We disagree. discussed, we previously As have noted and R.C. 2927.01 required that, did,

state to demonstrate in treating perversely as he disregarded likely known risk that his behavior was to cause a certain result— case, noted, outrage among community. this sense of As we have also every citizen generally community regarding aware strictures the treatment part humanity. of the dead. Such strictures are of a shared sense of Frankly, seriously argue we find difficult to believe that Condon can that he had no sense that his unauthorized use. of the people’s bodies other loved ones families, art project posed causing outrage, only among a risk of not the in but community large. the at Even an overblown sense of the importance one’s art treating own could not make one oblivious to the impropriety morgue objects corpses freely exploited posed as to be for their value. photographic argues Condon also that the fact that was he allowed access the {¶ 61} morgue autopsy photographs security to take certain and to a number of pass checkpoints gain disregard admittance established that he did not a perversely community risk that his сonduct would We this outrage known sensibilities. see note of the evidence. We also best, challenge weight a to the argument, purposes other morgue legitimate in that authorization to be the Condon’s in he recklessly that acted precluded finding not surely logically would have had, fact, in been had no authorization for which he pictures the taking permission. refused Kowal, who of Professor Cal Finally, testimony argues

{¶ 62} since the photography corpses proper subjects death have been stated that recklessly. form, acted Accord- precluded finding the that he beginning of art “[bjecause Condon, previously photographed have photographers other ing to objects, without corpses that were inanimate corpses including posed would have photography not that his could have conceived prosecution, [he] that argument goes we this an community.” Again, the consider outraged Further, reject notion that artistic license weight sufficiency. we the rather than lived, community in of the which he common sense. As member replaces community mores understanding to have a basic the expected Condon could the understanding, This presumed the respecting proper corpses. treatment officials, the by unautho- project morgue fact his had been turned down that work, that all to the evidence rized manner which set about contributed recklessly. he acted outrage the was, furthermore, evidence of ample There testimonial were pictures Dr. Parrott testified that Condon’s

provoked by Condon’s actions. “offensive” and pictures that were “deplorable.” Lindemann testified the Lovett, police photographic the officer who retrieved David “disrespectful.” by photo- that he “shocked” the negatives Imaging, from Robin testified negatives the graphs. Erke testified that he was “shocked” and “mortified” were “disturb- Imaging. photographs he saw at Robin testified the .Johnson ing.” A officer who conducted the search Condon’s studio testified police Senteney negatives Craig the made testified photographs and her “nauseous.” Beckman testified that photographs that all of were terrible. Richard testified that he disturbing. his sister were Robert Martineck photographs not thought they proper. saw of Folchi and were photographs sum, presented we hold that there was sufficient evidence recklessly treating as he did. Condon had acted Weight

3. the Evidence claim chal- argument support additional of his provides no record, .Nevertheless, having lenging of the evidence. reviewed weight clearly jury way resolving we did not lose its are convinced perceived authorization respect in the to Condon’s conflicts evidence. With testimony take was entitled find photographs, jury 652 Parrott, witnesses, Lindemann, Dr. including Daly,

state’s was more credible testimony than the of Waits. never And while Waits testified that “life-cycles” own personal project informed that his Condon’s could not project undertaken, be the overwhelming evidence established Condon was never Further, given pursue to permission personal project. after all of viewing the critically examining photographs, jury evidence and the the found that the Richardson, Folchi, Melton, Brady, Frith, Beckman, of Senteney, recklessly Sowards had been way community treated offended sensibili ties. the to be weight given Because the evidence and the the credibility of fact, (1967), were of primarily witnesses for the trier see State v. Ohio DeHass 10 230, 366, 212, 39 227 St.2d O.O.2d N.E.2d one of the paragraph syllabus, we say that, law, cannot as matter the jury improperly weighed the evidence. Having found that no manifest miscarriage justice, we overrule ninth the assignment of error.

B. Prosecutorial Misconduct Next, assignment error, we first address Condon’s which prosecutorial relates to misconduct. order to reverse a conviction based on prosecutorial misconduct, alleged must have deprived misconduct the defen Fears, 329, dant of fair 332, 1999-Ohio-111, trial. See State v. 86 Ohio St.3d 715 136; (1984), 239, v. N.E.2d State Maurer 15 Ohio St.3d 15 OBR 473 prejudicial N.E.2d 768. The effect of the alleged misconduct must be considered the context of trial not simply entire from the immediate context which the misconduct occurred. See id. vigorously complains about the made following prosecution during remarks closing argument: are things “There some scream out and I’m going {¶ addressed 67} start attorney’s] [Condon’s some defense comments. all, audacity “First of he has the to come into this courtroom in {¶ front of 68} you, in victims, front of the relatives these and refer to this project bullshit as art, is an insult victims and especially the families.” (Emphasis supplied.) objected attorney to the comments. trial court overruled objection gave jury but a general curative instruction remarks of counsel were not to be prosecutor considered evidence. The by stating, followed outrageous “It’s they calling would even consider that art work.” No objection was raised. The prosecution wide latitude highlight afforded strengths defense,

relative its case the relative weakness but this far letting prosecution latitude does not extend as denigrate role (1993), 402, 406, defense counsel. See v. State Keenan 66 Ohio St.3d 613 N.E.2d 203; 671-672, State Hart Ohio A N.E.2d 755. hiding is insinuating that the defense denigrate by not counsel may

prosecutor 149, (1998), 360, 369, N.E.2d App.3d 720 130 Ohio the truth. See State v. Smith 665, 673-674, 641 N.E.2d 755. 94 Ohio State v. Hart quoting warranted prosecutor’s the comments were argues The state by Condon’s atmosphere in to the created response were made they because actually But, record, was Tobias’s counsel who review of the upon counsel. our atmosphere. antagonistic the that were to have caused alleged made comments counsel, use prosecutor’s we the regardless of rancor between consider And meant to clearly grossly unprofessional as art” phrase project “bullshit jury that Further, suggested to the jury. prosecutor’s inflame the comments the fabricating false jury by deliberately was to the seeking counsel deceive defense view, com prosecutor’s In our the behind Condon’s behavior. purpose artistic prosecutorial misconduct. highly inappropriate ments were and constituted while occurred a little alleged The next instance misconduct rebuttal, in later, during closing prosecutor argument, when the stated own The improperly counsel had influenced one their witnesses. defense in stated, “Now, this is back when Ernie Waits had this fresh prosecutor mind, the meeting attorneys he had a little with all of defense the before team, in fashion memory before he had chance to have his altered some defense ** objection Again suggestion No was raised to this comment. we hold the fabricating entirely inappropriate. that Condon’s was defense prosecution alleges improper further made numerous {If73} (who, jury both and Tobias it must be suggesting remarks to-the remembered, pleasure were sort of tried derived some fetishistic sexual together) Tobias, upon the photographed. example, commenting from bodies For the stated, “Now, seeing we start into it. You start the sexual prosecution getting up start to in these that are almost identical to what his pop overtones that Condon, prose- buddy, photographer by Thomas takes.” Other remarks (1) (2) body, following: cution included the Condon molested Folchi’s Condon had Malakoff,” (3) to wаy Toby jury pay “his Folchi with Christina viewing to when progression happens attention to the of “what clothes” (4) Another such photographs depicted “striptease.” photographs, during closing argument prosecutor, remark rebuttal where occurred stated, Tobias, “Here’s another talking photographs by about taken crime-scene * * * Now, enough is now we are still down. not so photograph. Shirt on the body going place emphasis to roll the over and we are breast.” going (Emphasis supplied.) closing prosecutor going must avoid During arguments, Smith, jury. State v. Ohio St.3d

beyond presented the evidence to the See photographs OBR 470 N.E.2d 883. But what was reflected were opportunity photographs very take the much issue this case. argument pictures state’s basic was that the taken Condon were taken they from not permission without the coroner’s office and that were taken for but, rather, argument official personal business reasons Condon. The photographs arguably gone bore some could have to the jury’s sexual interest pictures consideration of whether were be used “official business” or reasons, culpable as well mental For personal state. these reasons, such not under improper comments were the facts this case. alleged by The next instances of Condon relate to misconduct whether closing

the state to the emotions. improperly appealed jury’s During argument, prosecutor pictures the referred to Frith “revolting repulsive,” the as the pictures “disgusting,” picture of Folchi as and the of Melton as “horrific.” The prosecutor way also stated that the bodies “manipulated, propped, the were posed, pulled, way they camera, the whirled the live-action disgusting, around it’s revolting repulsive.” objections it’s it’s No were raised these comments. Thе last instance of prosecutorial misconduct cited Condon concerns prosecutor’s jury two warnings “be careful” when handling the in photographs placed they had been might evidence because contain “blood or bodily again objections other fluids.” Defense no counsel raised to these comments. Considering trial, all in the these remarks context of the view we them 77}

{¶ and, in disturbing, instances, as improper, some but are not we convinced that were of they magnitude sufficient to have prejudicially affected Condon’s consti right tutional fair This lengthy trial. was a charged case with emotion. condoning misconduct, Without prosecutors’s episodes we believe that the trial court’s jury objection instructions to the when an was made cured any impropriety respect Moreover, to those remarks. after careful consideration of the in entirety, record its we cannot say prosecution’s remarks that objected were not to by plain Condon amounted to error. “Plain errors or affecting rights defects substantial may although they noticed were not 52(B). brought to the attention of the court.” See Crim.R. In to prevail order a plain-error analysis, under the defendant bears the burden of demonstrating that the clearly outcome the trial have been would different but for the error. (1994), 275, 300, State v. Mundy 502, See 99 Ohio citing 650 N.E.2d State 178, Long (1978), 91, v. 804, 53 Ohio St.2d 7 372 paragraph O.O.3d N.E.2d two of syllabus. comments, None of the if arguably cited even inappropriate, were prejudicial plain so or deny outcome-determinative as constitute error and to a fair trial. prosecutors sum, that, part, for the most are convinced we prosecu- what the the state’s case and presented during

focused on evidence though some in Condon’s case. So even as the weaknesses perceived tors inexсusable, that their we do not conclude inappropriate were comments sufficient to warrant a new trial. impact ‍‌‌‌‌‌​​​​‌‌​‌‌​​​​‌​‌​​‌‌​​​‌‌‌‌​‌‌​​​​​‌‌​​‌‌​​‍was argument remaining portion assignment, As of this opinion failed to disclose prosecutor a fair trial when the was denied trial court did office, already we have held that the prosecutor’s

letter from the then, not entitled to Certainly, excluding that letter. not err Thus, reasons, the first foregoing we overrule on that basis. new trial of error. assignment Evidentiary

C. Issues Next, which he claims assignment we Condon’s sixth address prejudicial evidence. admission admitting irrelevant and trial erred of the trial rests within the “sound discretion or exclusion of relevant evidence 375, 343, 173, N.E.2d 31 OBR Sage court.” State 31 Ohio St.3d We, therefore, proceed largely under abuse-of- syllabus. paragraph two than an error connotes more “The term ‘abuse of discretion’ discretion standard. unreasonable, attitude is implies the court’s judgment; of law or ** (1980), 62 Ohio St.2d State v. Adams arbitrary unconscionable or exclusion of 144. An error the admission 404 N.E.2d O.O.3d if not affect substantial harmless error it does properly considered 52(A). of the accused. Crim.R. right See family of the argues testimony of the members Condon first testimony and had their was irrelevant prejudicial

deceased victims was because substantially its undue probative outweighed by prejudice. so as to be little value (1) identify testimony was response, the state maintains that the admissible (2) taking the in establish lack of consent photographs, the individuals the (3) community outrage. demonstrate photographs, But of the permits the admission relevant evidence. Evid.R. 403(A), prohibits which the by of is limited Evid.R. introduction relevant evidence outweighed by probative substantially of “its value is introduction evidence where issues, misleading the or of prejudice, of unfair of confusion of the danger the 403(A). jury.” Evid.R. record, testimony the of the thе are convinced that Having reviewed we value, the helped jury as the to determine

family probative members had consent, danger The identity community outrage. lack of corpses, the scope. in And the testimony minimal was limited prejudice of because view, In our jury or to confuse the issues. enough effect was not mislead probative value of testimony substantially outweighed the relatives’ was not issues, by of unfair danger prejudice, misleading jury. confusion of the or result, As a admitting we hold that the trial court not err in did the evidence. Second, argues photographs of “not corpses several

{¶.84} to a in specific related count” the indictment were of inadmissible evidence prior Generally, bad acts. evidence of a in propensity engage defendant’s prior misconduct and evidence of defendant’s prove misconduct he later conformity 404(A) in acted with that conduct is inadmissible. See Evid.R. (B). prior But of may misconduct be admissible it is probative where of “motive, things intent, such as opportunity, preparation, plan, knowledge, identi 404(B). ty, or absence of mistake or accident.” Evid.R. This principle is further 2945.59, in provides, any embodied R.C. which “In criminal case which the intent, defendant’s motive or the absence of on part, mistake or accident his or scheme, material, defendant’s or plan, system doing an act is any acts of intent, the defendant which tend to show his motive or the absence mistake or scheme, part, accident or the defendant’s plan system act in doing the question may proved, they whether are contemporaneous with or prior or thereto, subsequent notwithstanding proof may such show or tend to show the commission of another crime the defendant.” question threshold in determining admissibility

{¶ other-acts 85} 404(B) evidence under Evid.R. whether the matters proof are at issue See State v. the case. Ohio 753 N.E.2d 967. Griffin Here, Gibson, the photographs Thomas, Huckaby, and an corpse unidentified were entered Daly into evidence. testified those photographs were the property County the Hamilton Coroner’s office and that the photographs had been found in state, According studio. to the the photographs were offered to show Tobias’s connection with Condon and were relevant the issue of aiding abetting. view, In our photographs were to identify alleged relevant

connection between Condon and purpose Tobias of establishing whether those two were in a involved common involving scheme unauthorized use coroner’s to procure facilities photographs for personal purposes. Even assuming for the sake of argument that the photographs should not have admitted, been we hold that the error was harmless and not did affect a substantial right because the overwhelming photographic specifically evidence pertaining to each of eight counts. Finally, argues Condon in introducing state erred photographs

relating “pictures of sheet music and other papers” unrelated to the indictment or to a of a human photograph corpse. The contested are not photographs in great error; discussed detail in assignment merely rather Condon record, According numbers in a footnote. their exhibit by them identifies to the admission actually in footnote related the exhibits identified (2) office, Derrick (1) by coroner’s kept White’s record following: Eugene (4) (3) studio, Barbara and Ste- of Condon’s diagram photograph, Thomas’s in this case volume of exhibits admitted Given the videotape deposition. vens’s (not depicted all of which in the record photographs contained and the numerous to in objects Condon this to disсern which exhibits corpses), we are unable human assignment his portion to review this Accordingly, we are unable assignment. is, therefore, overruled. assignment of error of error. The sixth ACQUITTAL A NEW TRIAL MOTIONS FOR AND/OR error, trial maintains that the court In Condon assignment his tenth his motion for a new trial. his 29 motion or refusing grant Crim.R. erred same those we have motion for a new trial were the grounds The for Condon’s (1) first, assignments sixth of error: third and previously discussed misconduct, (2) First protections, violation of his Amendment prosecutorial (3) admission of irrelevant evidence. A of the trial for a trial is directed the sound discretion motion new

court, appeal shall not reversed on absent an abuse of the court’s decision be 71, (1990), 54, 55 Ohio 564 N.E.2d discretion. State v. Schiebel St.3d See first, syllabus. light disposition In of our of Condon’s third paragraph one of errors, by we trial court not err assignments and sixth conclude did grounds Condon also refusing presented. new trial grant 33(A) his Crim.R. motion for a new trial or his Crim.R. 29 argues either granted motion for have been because insufficient evidence was acquittal should inquiry in this is the same as the inquiry respect trial. relevant presented 33(A)(4); v. 55 Ohio St.2d sufficiency. Bridgeman See Crim.R. State (June 14, 2002), syllabus; Stephens 9 O.O.3d N.E.2d State 2001-T-0044, Having already 11th Dist. 2002 WL 1306002. found sufficient No. eight conviction on all counts abuse of supporting gross assignment, similarly ninth we that the trial to the conclude corpse response trial or on that acquittal did Condon’s motions a new denying court not err basis.

JURY INSTRUCTIONS maintains that the trial eighth assignment, (1) abet,” “aid and instructing jury regarding erred in definitions (3) (4) (2) law,” “treat,” “public office/public official.” Because “authorized abetting, not the court’s charged aiding we do consider not jury It is well established that instructions must instructions on that matter. 658 (1993), 261, 262-263,

reviewed as whole. State v. 66 See Ohio St.3d Burchfield give 611 819. A court jury provide correct, N.E.2d trial must instructions that complete clear law. Bryant statement of the See Sweeney Walt Automo tivе, Inc., C-010404, 2002-Ohio-2577, 1st Dist. Nos. C-010395 and 2002 WL ¶ 1071943, may 15. Patterned trial instructions aid the court the preparation charge to jury, jury the the but instructions should be tailored to the facts of (1994), 459, 470-471, the case. See State v. Shue 97 App.3d Ohio 646 N.E.2d 1156; (1983), 297, 299, Avon Lake v. Anderson 10 Ohio 10 OBR 462 N.E.2d The court 188. trial retains discretion on how conform jury to the (1981), to the presented instructions trial. See State v. Guster Ohio St.2d 20 O.O.3d 421 N.E.2d 157. suggests Condon that the trial court should have better tailored its gross

definition of of corpse abuse under R.C. 2927.01 to the facts of this case. First, alleges that the trial Condon court should have on portion elaborated the the relating statute to by “authorized law.” The trial court’s instruction was as follows: “Persons authorized lawby county designated include a coroner and staff, physicians members of his surgeons, students, accredited medical organs embalmers certified to remove human by consent of the deceased accord- ing law, to persons acting and all authority other under of law.” Second, alleges Condon that the trial court have

{¶ should elaborated on 92} definition “treat” under 2927.01. premises R.C. argument on taking fact that a picture corpse, of a physical alteration, without evidence of does not constitute an of a corpse. abuse language relating court’s by “authorized law” practically was

verbatim from Jury the Ohio Instructions. See Ohio Jury Instruction 527.01(2). 798, Section While trial court could have defined “other persons acting authority whole, under law” more definitively, the trial court properly jury. “treat,” instructed the regard With already we have held taking picture of a a corpse personal use without by authorization law can, given circumstances, constitute mistreatment of a corpse violation of 2927.01(B). Thus, physical R.C. alteration not element of the crime. The trial court’s instruction relating to “gross corpse” fairly abuse of correctly stated applicable law. that, Finally, alleges because, view, in his “authorized law” defined,

was not properly the trial court have jury should instructed the about the identity, responsibility, culpability public who public officials hold Having offices. already given found that definition jury by the trial proper light case, facts and circumstances of this we do not agree proposed necessary definitions were relevant or jury weigh the evidence and reach a decision relating to Condon’s culpability,

particularly since a public Accordingly, Condon was not official. we overrule the eighth assignment of error.

SENTENCING ISSUES alleged We now turn to the improprieties during occurred sentenc- {¶ 95} error, ing. assignment the eleventh maintains that the trial court by sentencing erred him to a prison term for the commission of fifth-degree argues felonies. He trial disregarded statutory the court the implicit presumption against imprisonment for the commission of felonies of such low level, that it and failed to make the or necessary findings, supportable findings, to Furthermore, overcome that presumption. if argues even it is assumed that a term of imprisonment justified could be applicable sentencing under the guidelines, trial the court erred maximum imposing prison the terms because support the record does not trial findings court’s that his treatment corpses constituted the worst forms of gross the offense of abuse of a corpse. Condon also maintains that the trial court in sentencing erred him to consecutive sentences, and that the trial court improper considered sentencing criteria. Initially, we may appeal note his sentence aas matter of

{¶ 96} 2953.08(A)(1) (5) right. This court has held that R.C. through provide indepen- grounds dent for appeal. See State v. Beasley 134 Ohio 731 2953.08(A)(1), (A)(2), (A)(4), N.E.2d 1223. Pursuant to R.C. and “[a]n offender may on challenge appeal imposition term, of a maximum prison imposition a prison term for a fourth- fifth-degree felony or without a finding of one of the 2929.13(B)(1) factors, R.C. imprisonment imposition sentence that is ” ‘contrary 1999), C-980887, law.’ State v. Smith (Sept. 1st Dist. No. WL 728533. If appellate clearly and convincingly finds that the sentence is

{¶ 97} contrary to law because the record does not the trial support findings court’s 2929.13(B), statutory factors R.C. it option has the to modify the sentence or to vacate the sentence and remand the case to the trial court for resentencing. 2953.08(G)(2). (Nov. 24, 2000), R.C. See State v. Brewer Hamilton App. No. C- 1732335; 1, 1997), WL State v. Shryock (Aug. Hamilton No. App. C- 961111, 1997 If WL 1008672. the trial court simply fails to make the findings 2929.13(B), required by R.C. appellate court must remand the case with 2953.08(G)(1). required instructions to make the findings. R.C.

A. The Sentence Imposed jury The Condon'guilty eight found counts of gross corpse abuse of a 2927.01(B), under fifth-degree felony. R.C. trial court gave Condon the two, five, seven, nine, ten, eleven, maximum twelve, sentence counts and and on count six. The court ordered minimum sentence of six months two, that all the five, consecutively six be served on counts sentences told, to a concurrently. All Condon was sentenced sentences be served other thirty years. months or two and one-half prison term worksheet. The worksheet felony sentencing The trial court filled out a factors the seriousness and recidivism

indicated that the court had considered 2929.13(B), 2929.12, minimum imprisonment factors under R.C. under R.C. 2929.14(B) (C), and the prison-term maximum factors under R.C. 2929.14(E). factors R.C. consecutive-sentencing under

B. Prison Term Appropriateness of felony, ordinarily community- a low-level Because is considered overriding purposes of R.C. 2929.11 for a fifth- control sanction satisfies A Plan in A Formal of degree felony. Felony Sentencing Report See Ohio: 1, 1993), Sentencing (July prison 81-82. But a the Ohio Criminal Commission may imposed fifth-degree felony. of six to twelve months for a See R.C. term 2929.14(A)(5). term, however, a the trial court must imposing prison Before 2929.12, factors in and must consider seriousness and recidivism listed R.C. 2929.13(B)(1)(a) (i). through factors in A imprisonment also consider the R.C. (1) is, fact, felony in favored for a if the trial court prison fifth-degree term finds 2929.13(B)(1)(a) (i), in through at least one of the nine enumerated factors R.C. (2) that prison purposes principles term is consistent and (3) 2929.11, in communi- sentencing R.C. and that the offender is not amenable to 2929.13(B)(2)(a). control. ty See R.C. Furthermore, even when the trial court does not find one of the R.C.

2929.13(B)(1)(a) (i) factors, still, discretion, in a through may impose prison its “ that, when ‘it consistent with purposes principles sentence finds ” sentencing, community an is not to control.’ v. offender amenable See State Brown, 654, 2001-Ohio-4266, 1192, App.3d quoting 146 Ohio 767 N.E.2d State v. (Nov. 2000), 24, C-000148, Brewer 1st Dist. No. 2000 WL 1732335. Here, that, all of sentencing worksheet demonstrates as to 102}

{¶ 2929.13(B)(1) counts, existed, the trial court of the factors in found one R.C. namely held a office or of trust and that the offense public position office, reputation position to the or that or facilitat- professional related or the future conduct of others. The court likely ed ‍‌‌‌‌‌​​​​‌‌​‌‌​​​​‌​‌​​‌‌​​​‌‌‌‌​‌‌​​​​​‌‌​​‌‌​​‍offense was influence with the factors set forth in R.C. prison also determined was consistent 2929.12, purposes principles sentencing as well as the set forth R.C. Condon, offender, a although 2929.11. The trial court concluded first control. community not amenable to 2929.13(B)(1)

1. R.C. as a Public —Condon Official 2953.08(G)(2)(a) (b), Pursuant to R.C. appellate may not disturb a Bill 2 imposed sentence under Senate unless it finds clear and convincing evidence that the sentence is not supported by the record or is contrary to law. Clear and is “which convincing produce will in the mind of the firm trier of facts a belief or conviction allegations sought (2001), 158, 164, be established.” Eppinger State v. 91 Ohio St.3d 743 N.E.2d 881, (1954), quoting 469, 477, Cross v. 161 Ohio St. 53 O.O. Ledford N.E.2d 118. trial Because the court has the best opportunity to examine the demeanor of the defendant and to evaluate the impact the crime on the victim society, it is the best position to make factual required determinations by the sentencing (1999), statutes. See 355, 361, State Martin 136 Ohio App.3d 736 N.E.2d 907. question official, public whether Condon was a or held a position public trust, or used his professional reputation crimes, to facilitate his

largely question of law. This court previously has at length discussed this Flahive, sentencing factor in State v. 127 Ohio N.E.2d Brewer, Flahive, and State v. supra. majority of this court that a held cashier or clerk at a business who misused the credit cards customers could be found to satisfy the third sentencing 2929.13(B)(1)(d), factor found in R.C. requiring that the “offender’s professional reputation position facilitated the offense.” court, The more position however, recent Brewer, this was stated in which we 2929.13(B)(1)(d) made clear that sentencing factor found R.C. was not meant apply every ethical, moral, filial, breach of an or professional duty by private Rather, individual. 2919.13(B)(1) we held in Brewer that R.C. was primarily to target intended public officials and public servants who abuse positions their of public trust. Although we eschewed an absolute rule that a private individual can never a occupy position of trust worthy of a imposing prison sentence, we adhered to the position view a of trust is one that derives generally from public, the offender’s opposed private, as standing. As by Judge concurrence, noted Painter his our holding in Brewer validated the Flahive, dissent in which made the point professions to which R.C. 2929.13(B) refers are those traditionally thought to special invoke a relationship doctor, trust —such as lawyer Brewer, (Painter, accountant. supra J., see, also, Flahive, concurring); supra, 35-37, (Gorman, J., N.E.2d dissenting). Here, the evidence was clear that Condon was not a public official.

Nor did he hold a position public Although trust. a professional was photographer, professional standing did not a special invoke relationship trust, nor professional such, did his reputation, as Indeed, facilitate the crime. an outsider without acting was as at trial was that Condon theory the state’s There- corpses. photographed when he pretenses under false permission and sentencing applicability on the of the fore, finding trial court’s we hold 2929.13(B)(1)(d) convincingly wrong. clearly was contained R.C. factor Term, Community Control Opposed as Prison Appropriateness 2. of the factors finding that one by the trial court erred Although 2929.13(B)(1) for trial court have it was still possible applied,

in R.C. community not amenable to if it that Condon was a term believed imposed prison crimes the seriousness of his control, sentence would demean non-prison or that a Brewer, sentencing. See principles purposes inconsistent with the and be Katz, analysis generally Professor such by Judge Griffin and supra. As noted of the available local “have evidence that some the trial court requires Katz, 6.16, 462. supra, failed.” Griffin and Section have been tried and sanctions crime, available, of the even are the seriousness Howéver, if local sanctions even noteworthy It is this may require prison a term. fifth-degree felony, a for conveniently template fit into the normal offenses do not regard that Condon’s involve moral nonviolent and does not felony, generally which is fifth-degree a it felony fifth-degree is unusual for corpse Gross abuse of turpitude. harm and inflicting severe emotional potential both conduct with involves outrage. it causes a sense of societal that is so aberrant that behavior noted, that a sentence was consistent prison the trial сourt found As outlined sentencing purposes forth in R.C. 2929.12 and the with the factors set protect are to purposes felony sentencing overriding 2929.11. The two R.C. R.C. punish the offender and to the offender. public by from future crime 2929.11(A). that it throughout sentencing hearing trial court clear made conduct, taking highroad for his the artistic Condon unremorseful considered A is an indicator of fully justified. genuine lack of remorse what he did likely recidivism in statutory guidelines factors and future crime under the 2929.12(D). Further, made clear its statements that the trial court also R.C. prison not include a term demean it considered a sentence did offenses, truly repugnant emotionally which found seriousness to the families involved. devastating found that Condon should have Concededly, might another court have community-control type in some local given opportunity participate

been court in the best to observe position This trial court did not. The was sanction. that it could determine whether judge and to his character so Condon’s demeanor be rehabilitated nature of his crimes and would understanding he was judge in the best the position control. The court was also through community on more than crimes, multiple bodies and committed involving of his seriousness occasion, community one and whether control would serve to demean them. Accordingly, say clearly we cannot that the trial erred convincingly court determining that a prison appropriate sentence was Condon.

C. Maximum Prison Term impose To more than the shortest term a first required for Condon, such as offender the trial court must make one of listed in findings the 2929.14(B). imposed R.C. When it the longest prison range terms from the punishments, find, pursuant 2929.14(C), the trial court was required to to R.C. offense,” had Condon committed the “worst forms of or that posed the the greatest likelihood of In making findings, recidivism. addition to one of the thе trial court also had to state the reasons those supporting findings. See R.C. 2929.14(C) 2929.19(B)(2)(d); Edmonson, 328-329, State v. 86 Ohio St.3d 1999-Ohio-110,715 N.E.2d 131. The trial not only court found imposition prison the shortest crimes,

term demeaned the seriousness of but Condon had committed the worst forms of the offense maximum and deserved therefore the on seven of eight making determination, sentence counts. this the trial clearly disrespectful, found Condon’s actions “disgusting, and the worst Further, form invasion privacy.” appropriately upon trial court relied fact Condon’s acts had great “caused devastation and to the anguish of the people families whose bodies were exploited.” erroneously contends trial court relied on the state- testimony family

ments written the surviving opinion members to form its offenses, severity of his and that court erred in “generically” determining that Condon’s actions gross constituted the worst forms of of a abuse and that corpse they would be by imposing demeaned term of shortest imprisonment. argues He that taking pictures corpses cannot the worst form of the offense when case law demonstrates others have mutilated or physically otherwise desecratory abused far more fashion. state, hand, on the other argues that trial court correct to

measure severity Condon’s behavior its upon based effect on the deceased’s family According state, and friends. to the reasonably the trial court could have that, family found as terrible body as the would feel to have their loved one’s abused, physically far would be worse to have the naked corpse used and without displayed, permission, their “art” some sort of show or on Internet. there Although was no evidence that preparing Condon was display reasonable, photographs, inference, the state that was a if argues not inescapable, because there was no reason professional photographer other for a such as to take photographs other than to them sort put eventually on some police only because argues, the state displayed, so They were not display. in some format. display them publish or could intervened before Condon degree to the compelling not but argument persuasive this We find corpse. a abusing forms of as the worst these offenses to establish necessary recklessness, a culpable degree a demonstrated may have While community and to the mores of his and callow indifference insensitivity, shameful actually did to that what he others, seriously argued it cannot be feelings dismem- as others who have depravity degree the same showed corpse. upon acts abused, despicable other bered, perpetrated or sexually outrage— point at the crimes, of R.C. 2927.01 starts a violation other Unlike so, is a natural being there offense. This element of the outrage is an essential did, focusing only on the offender, no matter what overpunish any tendency to But the it was inflicted. manner in which not on the outrage pain the emo- authority beyond look sentencing require that sentencing statutes the behavior itself. and focus on by aroused the behavior tions noted, reprehensible all sorts of involve corpse, may of a Abuse 114} {¶ Recent sinister, or debase. pathological, truly for motives that are behavior of corpses, who abused hundreds cemetery owner concerning in Georgia events greed, of avarice and shallow, purpose for the graves makeshift burying them than Condon’s. much more severe forms of the offense certainly demonstrate by arguing that Condon ways to have it both Further, attempting is the state because, police not of the offense had for the worst forms punished should be thus, that point, intervened, photographs published he would have as it self-defeating This argument offense. worst forms committed the intervention, behavior, point of police at the acknowledges that Condon’s tacitly worst-forms level. not reached the had Sentencing Criteria Unpermitted

D. Use of when, committed error over that the trial court also contends 115} {¶ imposing the statements before objection, victim-impact it considered various victim-impact use of a that R.C. 2947.051 authorizes He maintains sentence. cause, “caused, attempted in which the offender only those cases statement cause, harm to the victim.” physical a risk threatened to created restricts the that R.C. 2947.051 incorrectly assumes argument This 116} {¶ of a crime impact about the relevant information court’s discretion to obtain trial has not in which the offender and friends cases family the victim’s upon contrary, R.C. cause, harm. To threatened, physical or caused attempted victim-impact statement trial court order only 2947.051 mandates doing so for trial court from prohibit not crimes but does types certain others. furthermore, a right respond had to Con- prosecution, testimony offering

don’s “to the court a true mitigation testimony give 2947.06(A)(1). understanding of And to R.C. according the case.” R.C. (as 2930.01[H]) 2929.19(A), or the victim the victim’s either defined R.C. (as 2930.01[I]), or other representative person approval defined R.C. court, hearing. of the at trial has may speak sentencing trial the The court discretion with relevant can persons to determine the number information who Harwell, speak 147, 150, hearing. the See State 149 Ohio 2002-Ohio- that, Finally, 776 N.E.2d 524. it should be of the nature regardless noted crime, any by the harm resulting from the statement the victim the regarding impact of the crime must be used the preparation presentence thе 2930.13(B). and, if in investigation report writing, report. included in the R.C. As those long persons as who the court do express address not 118} {¶ to opinion as the that be imposed, sentence should the trial court may consider relevant regarding statements the impact the offense on a victim’s family and 435, 439, 1995-Ohio-209, friends. v. Fautenberry, State 72 Ohio St.3d 650 N.E.2d is 878. While it true that some the family members in case expressed this sentence, preference their maximum the it affirmatively appears unless the to contrary, trial presumed relevant, the court is have only to considered material competent in selecting imposed. the sentence See id. Further more, already we have held that it error for trial the court to imposed have sentences, extent, maximum to that already we have any prejudice remedied may have family resulted from the members’ testimony advocating maximum reasons, sentences. For all these we hold that Condon has to failed demonstrate reversible error on the basis the trial court violated the statutes sentencing or abused its discretion in considering the victim-impact evidence.

CONSECUTIVE SENTENCES We next evaluate whether the trial court in imposing erred consecutive The imposition sentences. consecutive is sentences reviewable 2953.08(A)(4). contrary pursuant to law to R.C. Prior to ordering that sentences be consecutively, served the trial court

{¶ 120} must find that consecutive sentences are to necessary protect public the from offender, future or crime to the punish and that not consecutive sentences are disproportionate to the seriousness offender’s conduct and to the danger 2929.14(E)(4). to poses public. Further, See R.C. the court to has 2929.14(E)(4)(a) (c) find that one the factors listed R.C. through applica- is the court to Finally, provide ble. has its reasons for each finding. approрriate to make the trial court failed contends its for consecutive sentences. failed to reasons give on record and

findings or reasons findings give not articulate its trial court did disagree. While the We identify findings its sentencing hearing, did at the consecutive sentences court found that consecutive trial sentencing reasons worksheet. not the offender and punish “[n]ecessary protect public were terms and/or danger conduct and to the of the offender’s seriousness disproportionate that, found to R.C. pursuant The court also poses public.” offender “so 2929.14(E)(4)(b), offenses was multiple harm caused two more of Finally, inadequate.” single prison or unusual that a term great findings: its “Evidence showed following support reasons provided the worst form of disgusting, disrespectful, and the acts of defendant are illegal great have caused illegal acts of defendant devasta- privacy. invasion These were people exploited.” families of the whose bodies anguish tion and explained made and its adequately findings that the trial court We hold 122} {¶ Fur- justification journalized sentencing on its worksheet. ample reasons that the record not ther, clearly convincingly say support we and does cannot clearly instant case. Nor can we of sentences in the imposition consecutive in assessing degree convincingly say that the trial court erred emotional of the of their loved ones upon harm inflicted families Condon’s use bodies objects project. art photographed as to be ERROR

CUMULATIVE that the cumulative incremental assignment Condon’s final effect fair fundamentally at his trial him of a trial and deprived of the errors committed have his conviction. Because we overruled Condon’s requires reversal trial, to is no cumulative relating allegedly errors committed there assignments See, in v. Davis 62 Ohio generally, to this case. State recognize error 1362, 1380. 581 N.E.2d St.3d BY THIS

THE SENTENCE IMPOSED COURT all foregoing analysis, findings guilt we affirm the on upon Based affirm, also, the of a term and its imposition prison counts. We trial court’s eight five, two, consecutively. and six run We order the sentences counts however, finding, trial that Condon’s crimes constituted overturn the court’s 2927.01(B). to our corpse under R.C. Pursuant abusing worst forms 2953.08(G)(2), minimum term of six authority impose prison R.C. we under counts, imprisonment thirty term from to reducing on all Condon’s months months, reduced, appropriately, by to further all credit for which be eighteen The judgment time 2967.19.1 and 2967.19.3. served under R.C. he is entitled is, trial court this in accordingly, affirmed with modification Condon’s sentence.

Judgment affirmed modified. J., separately. concurs Sundermann, P.J.,

Painter concurs in part part. and dissents Judge, concurring separately.

Sundermann, I concur in opinion the well-reasoned I agree court. guilt proven has been and that appropriate consecutive sentences are I separately this case. write that I think that say the trial court could have found that properly these were the worst forms of the offense of abuse of a It has corpse. argued taking pictures been cannot worst form of the only offense and the worst form occurs where bodies have been subjected abuse, mutilated or physical some other but not when have they That photographed. been is indeed a terrible but the so thing, bodies abused are beyond pain or humiliation. We must look to how the acts of Condon affected the family deceased’s I friends. believe that the trial court could reasonably that, have abused, found as terrible as it be to have a body would loved one’s could be far corpse displayed worse have the naked without permission some sort of “art” Clearly show on the Internet. purpose pictures these for their project use Condon’s to capture cycles” the “life of humans. There could be no reason for a professional than photographer put take them other display. them on They displayed only were not so police because the intervened happen. before this could I say cannot trial in taking court erred this view and thereupon imposing the maximum sentence for certain counts. Painter, Presiding Judge, concurring in part dissenting part. Being judge say is never having you’ve everything. seen This

{¶ 126} case variety the endless of human foibles. Perhaps might some photographs consider the art. I am Though not {¶ 127} number, among that I recognize right of free expression. Condon could not be punished art —but he can punished treating the manner that, Thus, he did here. I concur with part Judge Gorman’s learned opinion. The trial court should prosecutor’s have released the opinion letter— why keep agree secret? But I the result would not changed. have As to I sentencing, concur with the in all majority particular. but one justified The consecutive sentences cannot be on this record. prison A sentence again. not a threat to do this surely is of his wrong-headedness him the impress upon sufficient to length would be

any community outrage. and to validate behavior support can a six- majority that this record agree I Though A not sentence, sentences. case does there should be no consecutive

month logically support count cannot maximum sentence for one justify even the months. More than should have been six sentence. The sentence consecutive sentences Thus, I dissent as to the consecutive already been served. has only. BARG, Appellee,

VAN COMPANY, Appellant. DIXON TICONDEROGA Co., ‍‌‌‌‌‌​​​​‌‌​‌‌​​​​‌​‌​​‌‌​​​‌‌‌‌​‌‌​​​​​‌‌​​‌‌​​‍Barg Ticonderoga v. Dixon [Cite as Van 2003-Ohio-2531.] 152 Ohio Ohio, Appeals Court of District, County. Erie Sixth No. E-02-028. May Decided 2003.

Case Details

Case Name: State v. Condon

Court Name: Ohio Court of Appeals

Date Published: May 9, 2003

Citation: 789 N.E.2d 696

Docket Number: Appeal No. C-020262, Trial No. B-0100380(A).

Court Abbreviation: Ohio Ct. App.