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State v. Nicely

Supreme Court of Ohio
Oct 19, 1988
39 Ohio St. 3d 147 (Ohio 1988)


holding that "in the absence of a human body, a confession, or other direct evidence of death, circumstantial evidence alone may be sufficient to support a conviction for murder"

Summary of this case from State v. Torres


Nos. 87-672 and 87-701

Submitted May 17, 1988 —

Decided October 19, 1988.

Criminal law — Corpus delicti may be proven, how — Reviewing court may not substitute its judgment for that of jury, when — Conviction for murder may be wholly supported by circumstantial evidence.

O.Jur 3d Criminal Law §§ 1128, 1261, 1773.

1. In the absence of a human body, a confession, or other direct evidence of death, circumstantial evidence alone may be sufficient to support a conviction for murder.

2. Where substantial credible evidence upon which a jury has based its verdict is presented both as to guilt and also as to the corpus delicti of the crime, a reviewing court abuses its discretion if it substitutes its judgment for that of the jury as to the weight and sufficiency of the evidence.

APPEAL AND CROSS-APPEAL from the Court of Appeals for Tuscarawas County, No. 85A08-069.

In this case, the alleged victim's body was never found and the defendant, Donald Nicely, made no confession. Delores Nicely ("Jeannie"), the victim and wife of the defendant, disappeared April 23, 1985. She had gone to her place of employment on her day off at the request of a co-worker. After staying about two hours, Jeannie asked her co-worker to have a few drinks with her at the Terraine Club. The co-worker testified that Jeannie went home first to change her blouse but that she left her purse and cigarettes at her place of employment. Jeannie's purse contained vehicle title and registration, driver's license, medications, money, and other personal effects. She never returned.

Jeannie regularly visited her daughters, Kathy Smallwood, who lived only a short distance away, and Kelly Poth. Neither daughter has seen or heard from Jeannie since April 23, 1985.

The defendant and his wife had a stormy marital relationship. Kathy stated that her mother practically lived with her in her nearby trailer home and that she (Kathy) was holding $130 from each of her mother's paychecks for her so that Jeannie could leave the defendant.

The night of Jeannie's disappearance, the defendant's son, Ronald, brought his father to the trailer home the defendant shared with Jeannie, after which Ronald saw Jeannie's car arrive. The defendant had been fishing with family members and drinking beer that day. Ronald then drove home. In his tape-recorded statement to investigating officers made several days after Jeannie's disappearance, the defendant claimed that Jeannie came into the trailer, sat on the couch and then went room-to-room throughout the home. She was glassy-eyed and told her husband she was leaving him. He stated that his wife got an old purple robe, a couple pairs of jeans, some panties and other items, wrapped them in her robe, called him a bastard, and asked him to tell Kathy to "call me off work in the morning." His wife also told the defendant to tell Kathy that she had quit her job. Jeannie then left in a red pickup truck.

A witness stated that Jeannie had previous conversations with a man in a red pickup truck in the parking lot of her place of employment.

Later, the defendant went to his son's house, driving Jeannie's car. The defendant pulled out a mattress and went to sleep downstairs while his son Ronald slept upstairs. Ronald did not see the defendant leave the house. At 4:30 a.m., the defendant drove Jeannie's car to Kathy's trailer home and told Kathy that her mother had left him and was not coming back. He appeared shaky and stated Jeannie had gone away with a man in a red pickup truck. He wanted Kathy to call Jeannie's employer and tell them she had quit. He said that not only was Jeannie not coming back, but that she would not be calling Kathy or her sister again.

After the defendant left, Kathy followed the defendant to his home. Her mother's car was there. Upon entering the home, she noticed that the bedroom was unusually neat and that a pile of her mother's clothes was on the couch. When asked why Jeannie did not take them, the defendant claimed he did not know.

In the statement to investigating officers the defendant admitted that on the evening of April 24 he drove Jeannie's car to a back road and abandoned it. He drove away with his father who had followed him there in his pickup truck. The defendant, however, lied to the officers about the location of the car and denied removing the license plates or any other items, other than his tool box, from the car. A witness at trial testified that the defendant admitted that he not only abandoned the car, but also removed the license plates and took a "bunch of stuff out of the car." The day after Jeannie's disappearance, there was a confrontation between the defendant and both of Jeannie's daughters. When they accused him of stealing their mother's car, he falsely claimed that the car broke down in New Philadelphia. That same day a deputy sheriff in Coshocton County discovered Jeannie's car near Wills Creek. Jeannie's daughter Kelly testified that, during the confrontation, the defendant told her that Jeannie went to "Ann's," Jeannie's sister's home. When accused of lying and hurting Jeannie, the defendant said, "Oh babe, you know I didn't hurt your mom."

Upon investigation it was determined that the car was driven up the road to an abandoned bridge and then backed into the position where it was found by investigating officers. Tracks of a second vehicle were also present, which the defendant's father admitted were made when he drove to the scene with his son. On the roadway to the bridge was a wet area of pavement with evidence of blood spots, the size of the trunk of the car. When examined, the trunk was wet and clean except for some spots of blood, pine needles, blades of green grass, and a cluster of medium blue cloth that had been caught in the hinge of the trunk. A spot of blood was also found on the ground under the trunk.

A tire was found between the driver's seat and the back seat. An area of blood, confirmed to be Jeannie's type of blood through genetic markers, was arched across the back seat. The same type of blood was smeared on the side panel next to the seat, and a trail of blood had dripped down and onto the floor. A blanket in the back seat was confirmed to have evidence of Jeannie's type of blood on it. Blood identified as human was found on various items in and around the car. A blood spot identified as being Jeannie's type was found on the defendant's trousers. There was also testimony that the defendant had trapped animals. The furs were transported in the car and were frequently bloody.

Divers recovered from Wills Creek a bag containing several items and weighted with a piece of concrete. The concrete came from the bridge area and some of the other items came from the trunk of Jeannie's car. The bag also contained a robe, which the victim's daughter testified belonged to Jeannie, a blue electric blanket, and a brown electric blanket. The blue blanket had a tear in it, fibers from which matched those in the trunk hinge. The neck area of the robe contained a knife-like cut. There was no positive test for blood on these items.

Upon examination of the victim's trailer home, investigators found blood on the table, on the couch in substantial amounts (confirmed to be Jeannie's type), on both arms of a chair, as a hand print on the wall, on the carpet between the table and chair, and in the entranceway. Knife-like holes and human blood were on a blanket found in the back of the truck driven by defendant's father.

After the defendant was arrested, he made a tape-recorded phone call from the jail. He called his mother, insisting twice that his father change the tires on his truck. He expressed concern about his sister's turning over his trousers to the authorities. Further, the defendant expressed concern about his wife being found or her body being found.

There was an extensive search for the body or other incriminating evidence at the victim's home, around her car, in an area of the river, and on Ronald Nicely's farm. Nothing more was found.

The defendant was indicted by the Tuscarawas County Grand Jury for the aggravated murder of his wife under R.C. 2903.01. Following a jury trial, he was convicted of murder under R.C. 2903.02 and sentenced to a term of fifteen years to life imprisonment.

On appeal, the court of appeals held that the circumstantial evidence, considered singularly and collectively with the direct inferences therefrom, did not establish either the corpus delicti or the essential elements of the crime of murder. In the opinion of the court, the circumstantial evidence did, however, support a finding that a felonious assault was committed (the corpus delicti) and that Jeannie Nicely was the victim. The evidence also supported the conclusion that Donald Nicely was the perpetrator.

The court of appeals therefore reversed and vacated the trial court's judgment and entered a judgment finding the defendant guilty of felonious assault.

The cause is now before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.

Ronald L. Collins, prosecuting attorney, for appellant and cross-appellee.

Gottlieb, Johnson, Beam Joseph and Miles D. Fries, for appellee and cross-appellant.

In this case, we are presented with the issue of whether a conviction for murder may be supported wholly by circumstantial evidence. For the following reasons, we hold that a murder conviction may be supported by such evidence and, accordingly, reverse the judgment of the court of appeals and reinstate the trial court's judgment.

Circumstantial evidence is defined as "[t]estimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. * * *" Black's Law Dictionary (5 Ed. 1979) 221.

The state contends that the court of appeals abused its discretion by substituting its judgment for that of the jury regarding the weight and sufficiency of the evidence, because the verdict, guilty of murder, was supported by overwhelming circumstantial evidence. The state also argues that a homicide can be proven in an appropriate case even without the production of a body. The latter point is not in contention in this court, nor was it in the appellate court. It is well-established that murder can be proven in the absence of a body. See Captain Green's Trial (Scot. Adm. 1705), 14 How. St. Tr. 1199, 1246; United States v. Gibert (C.C. Mass. 1834), 2 Sumn. 19, 27-28, 25 Fed. Cas. 1287, 1290; The King v. Hindmarsh (1792), 2 Leach 569, 168 Eng. Rep. 387; United States v. Williams (C.C. Me. 1858), 1 Cliff. 5, 28 Fed. Cas. 636; People v. Cullen (1951), 37 Cal.2d 614, 234 P.2d 1; People v. Scott (1959), 176 Cal.App.2d 458, 1 Cal.Rptr. 600; State v. Dudley (1969), 19 Ohio App.2d 14, 25, 48 O.O. 2d 19, 26, 249 N.E.2d 536, 543. The challenge to the conviction here is that it is based on circumstantial evidence.

The defendant was charged with aggravated murder under R.C. 2903.01. He was convicted of the lesser included offense of murder under R.C. 2903.02. R.C. 2903.02 provides:

"(A) No person shall purposely cause the death of another.

"(B) Whoever violates this section is guilty of murder, and shall be punished as provided in section 2929.02 of the Revised Code."

The court of appeals directed its review to the question of whether the circumstantial evidence at trial was sufficient to establish either the corpus delicti or the essential elements of murder. Specifically, the court of appeals concluded that the proof of death was not established by the evidence presented. The court of appeals therefore concluded that a conviction for murder could not be based wholly upon circumstantial evidence, although it did find that such evidence was substantial enough to support a conviction of felonious assault, concluding that the aggressor was indeed the defendant and the victim, his wife.

We are not unmindful of the historical concern by the Anglo-American system of justice for the danger of erroneous murder convictions. Periodically, a victim presumed dead will later appear after the "guilt" of the defendant has been determined. Perkins, The Corpus Delicti of Murder (1962), 48 Va. L. Rev. 173, 173-176. See, also, State v. Maranda (1916), 94 Ohio St. 364, 370, 114 N.E. 1038, 1040.

It is, however, well-settled under Ohio law that a defendant may be convicted solely on the basis of circumstantial evidence. State v. Kulig (1974), 37 Ohio St.2d 157, 66 O.O. 2d 351, 309 N.E.2d 897; State v. Hankerson (1982), 70 Ohio St.2d 87, 24 O.O. 3d 155, 434 N.E.2d 1362, certiorari denied (1982), 459 U.S. 870; State v. Kamel (1984), 12 Ohio St.3d 306, 12 OBR 378, 466 N.E.2d 860. "* * * [P]roof of guilt may be made by circumstantial evidence as well as by real evidence and direct or testimonial evidence, or any combination of these three classes of evidence. All three classes have equal probative value, and circumstantial evidence has no less value than the others. 1A Wigmore, Evidence (Tillers Rev. 1983) 944, Section 24 et seq." State v. Griffin (1979), 13 Ohio App.3d 376, 377, 13 OBR 458, 460, 469 N.E.2d 1329, 1331. "Circumstantial evidence is not less probative than direct evidence, and, in some instances, is even more reliable." United States v. Andrino (C.A.9, 1974), 501 F.2d 1373, 1378.

However, this court in State v. Kulig, supra, syllabus, held that "[c]ircumstantial evidence relied upon to prove an essential element of a crime must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt." The court further concluded that "* * * [i]t is settled that where circumstantial evidence alone is relied upon to prove an element essential to a finding of guilt, it must be consistent only with the theory of guilt and irreconcilable with any reasonable theory of innocence. * * *" Id. at 160, 66 O.O. 2d at 352, 309 N.E.2d at 899.

Having concluded that an accused may be convicted of a crime wholly on the basis of circumstantial evidence, we now turn to the issue of whether such evidence is sufficient to fulfill the evidentiary requirements necessary to prove the corpus delicti or essential elements of murder. The concept of corpus delicti is well-established in the common law. Corpus delicti, or body of the crime, arose through genuine concern that no person be charged with a crime he or she did not commit unless the court is satisfied (1) that a criminal act has occurred, and (2) that criminal intent to commit the act existed. See 21 American Jurisprudence 2d (1981) 262-265, Criminal Law, Sections 129-130; LaFave Scott, Handbook on Criminal Law (1972), Section 24; Perkins, supra, at 178. See, also, State v. Maranda, supra; McCormick on Evidence (3 Ed. 1984) 366-367, Section 145.

This court defined " corpus delicti" in State v. Edwards (1976), 49 Ohio St.2d 31, 3 O.O. 3d 18, 358 N.E.2d 1051, paragraph 1a of the syllabus, as follows: "The corpus delicti of a crime is the body or substance of the crime, included in which are usually two elements: (1) the act and (2) the criminal agency of the act." More specifically, we defined the corpus delicti of murder in State v. Manago (1974), 38 Ohio St.2d 223, 67 O.O. 2d 291, 313 N.E.2d 10, paragraph one of the syllabus: "The corpus delicti, meaning the body or substance of the crime charged, in a homicide prosecution involves two elements, i.e. (1) the fact of death and (2) the existence of the criminal agency of another as the cause of death." In considering these definitions of " corpus delicti," it is important to understand that corpus delicti does not mean a dead body and that proof of the corpus delicti of murder does not require production of a dead body. See State v. Dudley, supra, at 20-21, 48 O.O. 2d at 23-24, 249 N.E.2d at 541.

The difficulty with the case at bar, however, is the absence of a body as an element of the crime. Death of the alleged victim, one of the elements of murder, then can only be proven through the use of circumstantial evidence. A very similar Ohio case, State v. Dudley, supra, involved a defendant who was found guilty of assault with intent to kill even though the victim's body was never found and the accused never made a confession. The victim was a night watchman at an industrial plant who, after failing to make his required reports, was found missing. The facts of the case and the case at bar are significantly similar. The only trace of the victim was his blood-stained hat. Blood was also found inside and outside the plant building and along the nearby sidewalk. The defendant's car had evidence of blood stains on the outside and in the front and rear seats. A crowbar from the car was also covered with the same type of blood.

The court in Dudley, citing United States v. Williams, supra, at 643, stated that "`* * * it [the corpus delicti of the crime] may be proved by direct evidence, or where such does not exist, it may be proved by cogent circumstances, provided they are sufficient to produce conviction on the mind of the jury and to exclude every reasonable doubt. It must be so, else the laws for the punishment of felonious homicide are insufficient to reach the secret offender, provided he has the opportunity and employs the means to destroy the body.'" State v. Dudley, supra, at 21, 48 O.O. 2d at 24, 249 N.E.2d at 541.

The Dudley court continued, stating that "* * * [i]n fact, under present day concepts, production of a `body' is not absolutely essential to convict, even in a murder case." Id. at 25, 48 O.O. 2d at 26, 249 N.E.2d at 543.

Courts in other jurisdictions have recognized the use of circumstantial evidence to establish the corpus delicti of murder. People v. Scott, supra, is the seminal case in this area of the law. The court in Scott was the first American court to find that circumstantial evidence alone was enough to prove the elements of the corpus delicti of murder. In Scott, there was no evidence of violence or other means of death used upon the alleged victim and no body or part of a body was found. However, the victim's two pairs of glasses and a denture were discovered behind the defendant's and the alleged victim's home. In affirming the defendant's conviction for murder, the California district court of appeals referred to the following circumstantial evidence as proof of death: (1) the victim was in good physical and mental health prior to her disappearance and had numerous friends with whom she communicated on a regular basis; (2) the victim would not have left home without her eyeglasses and her denture; (3) if the victim had intended to leave home she would have taken money, baggage and a wardrobe; (4) it would have been impossible for the victim to conceal herself for several years and find a way to live without drawing upon her bank accounts; (5) the defendant had a motive for killing his wife — to give himself a chance to steal her money through the forgery of her name on many documents; (6) the defendant had previously persuaded his wife to convert her securities into cash to make it easier for him to obtain her property through forgeries; and (7) every act and statement of the defendant after the disappearance of his wife was consistent only with knowledge that his wife was dead. Id. at 498-499, 1 Cal.Rptr. at 624-625. The defendant had told conflicting stories to explain her disappearance, forged her name on checks, and obtained large sums of her money.

For earlier British Commonwealth cases holding that circumstantial evidence proving the fact of death as an element of the corpus delicti of murder in the absence of a body is legally sufficient to sustain a criminal conviction, see Regina v. Onufrejczyk (C.C.A. 1955), 1 Q.B. 388; Rex v. McNicholl (Cr. Ca. R. 1917), 2 Ir. R. 557; and The King v. Horry (1952), N.Z.L.R. 111.

Commenting on the use of circumstantial evidence to prove the death of the victim, the court in Scott at 494, 1 Cal.Rptr. at 621-622, citing The King v. Horry, supra, stated: "`* * * There may be other facts so incriminating and so incapable of any reasonable explanation as to be incompatible with any hypothesis other than murder * * * that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for. * * * [I]t was competent for the jury to infer the fact of death from the whole of the evidence as a matter of moral certainty leaving no ground for reasonable doubt. * * *'" The court in Scott concluded: "* * * [T]he circumstantial evidence of the fact of death by criminal means was as strong and convincing as a confession would have been and much stronger than a confession of questionable validity." Id. at 496, 1 Cal.Rptr. at 623. Other courts have followed the Scott decision.

In the case of People v. Cullen, supra, the Supreme Court of California was presented with facts similar to both those in State v. Dudley, supra, and the case before us. The Cullen court stated:

"It is not necessary in order to support the conviction that the bodies actually be found * * *. * * * [T]o require direct and positive proof of the corpus delicti would be most unreasonable; * * * [t]he worst crimes are naturally committed at chosen times, in darkness and secrecy; * * * human tribunals must act upon indications as the circumstances admit; * * * more often than not the attendant and surrounding facts remove all mystery and supply that degree of certainty men are daily accustomed to regard as sufficient in the most important concerns of life." Id. at 624, 234 P.2d at 6-7.

The Supreme Court of Washington, in State v. Lung (1967), 70 Wn.2d 365, 423 P.2d 72, was presented with a similar situation in that the body of the victim was never found. The facts and circumstances of the case were stated by that court to be "overwhelming and convincing." Id. at 372, 423 P.2d at 77. There is a striking similarity with the present case. In Lung, the victim's car was found across the street from her regular place of employment. Her coat, shoes and purse containing its contents were found in the car. She had worn the same coat the night before, yet there came to be a bullet hole with blood stains around it on the midsection of the coat. The victim's rings and watch, which she had been wearing the previous day, were found in the defendant's house. Human blood stains were found on the floor and on the television set.

The court in State v. Lung, supra, posed the issue as follows: "Is the body or some part thereof required to establish the `fact of death' element in the corpus delicti? We think not. To require direct proof of the killing or the production of the body of the alleged victim in all cases of homicide would be manifestly unreasonable and would lead to absurdity and injustice." Id. at 371, 423 P.2d at 76. The threshold of sufficiency of evidence can be met if "the entire circumstances point with one accord to the death of the person alleged to have been murdered, the finding of fragments of a human body or of metallic articles which are positively identified as part of the body of the alleged victim, or as articles worn by him [emphasis added], will be sufficient, if believed by the jury, to establish the fact of death, when this is the best evidence that can be obtained under the circumstances. People v. Alviso, 55 Cal. 230; McCulloch v. State, 48 Ind. 109; Commonwealth v. Webster, 5 Cush. 295 (52 Am.Dec. 711); State v. Williams, 52 N.C. 446 (78 Am. Dec. 248); Gray v. Commonwealth, 101 Pa. 380 (47 Am. Rep. 733)." State v. Williams (1905), 46 Ore. 287, 297, 80 P. 655, 659-660.

See, also, Derring v. State (1981), 273 Ark. 347, 353, 619 S.W.2d 644, 647; People v. McMonigle (1947), 29 Cal.2d 730, 177 P.2d 745; State v. Pyle (1975), 216 Kan. 423, 532 P.2d 1309; Commonwealth v. Burns (1963), 409 Pa. 619, 187 A.2d 552; State v. Owens (S.C. 1987), 359 S.E.2d 275; Kugadt v. State (1898), 38 Tex.Crim. 681 44 S.W. 989; Epperly v. Commonwealth (1982), 224 Va. 214, 294 S.E.2d 882. The foregoing are all cases in which courts have held that circumstantial evidence was sufficient to prove death and sustain homicide convictions.

Defendant attempts to distinguish Cullen, Derring, Lung and many of the other cited cases by arguing that in all those cases the defendant gave a confession or made admissions or other incriminating statements. The defendant asserts that while a homicide conviction based on circumstantial evidence of death in conjunction with a confession is well-established in Ohio, a homicide conviction based wholly on circumstantial evidence is unprecedented. See, e.g., State v. Scarberry (1961), 14 Ohio App. 85, 18 O.O. 2d 394, 180 N.E.2d 631; State v. Black (1978), 54 Ohio St.2d 304, 8 O.O. 3d 296, 376 N.E.2d 948. A confession, admission, or incriminating statement, however, is only secondary evidence. The corpus delicti of the crime must still be independently proved. "The necessity of independently proving the corpus delicti to render an extrajudicial confession admissible is well-established. State v. Maranda, 94 Ohio St. 364 (1916). * * * `It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged.' (Emphasis sic.)" State v. Black, supra, at 307, 8 O.O. 3d at 297, 376 N.E.2d at 951, citing State v. Maranda, supra, at paragraph two of the syllabus. In Derring v. State, supra, at 354, 619 S.W.2d at 648, the court stated that "independent of the confessions, there was substantial circumstantial evidence of the corpus delicti, i.e., that there was in fact a death and that the deceased came to his death by the fact of one other than himself. Its weight and sufficiency was for the jury." We consider the presence of a confession, admission, or incriminating statement to be a distinction without a difference.

Furthermore, we know of no reason that the crime of murder should be treated any differently from other crimes when considering the use of circumstantial evidence to establish their commission. Given the extensive precedent in Ohio on the use of circumstantial evidence to prove the commission of a crime and the abundant case law in other jurisdictions on the use of such evidence in homicide prosecutions, we hold that in the absence of a human body, a confession, or other direct evidence of death, circumstantial evidence alone may be sufficient to support a conviction for murder.

We next turn to the question of whether the evidence presented in this case was sufficient to support the defendant's conviction for the murder of his wife. The test to determine sufficiency of evidence in order to establish the corpus delicti of the crime is whether reasonable minds can reach different conclusions on the issue of whether the defendant is guilty beyond a reasonable doubt. State v. Black, supra, at 308, 8 O.O. 3d at 298, 376 N.E.2d at 951, citing State v. Swiger (1966), 5 Ohio St.2d 151, 165, 34 O.O. 2d 270, 278, 214 N.E.2d 417, 427. Although it is not ordinarily the function of this court to weigh evidence, it may do so in order to determine whether that evidence is of sufficient probative force to support a finding of guilt for conviction in a criminal case. State v. Kulig, supra; State v. Murphy (1964), 176 Ohio St. 385, 27 O.O. 2d 354, 199 N.E.2d 884; State v. Petro (1947), 148 Ohio St. 473, 36 O.O. 152, 76 N.E.2d 355; Atkins v. State (1926), 115 Ohio St. 542, 155 N.E. 189.

At trial, the state presented the following circumstantial evidence tending to prove the death of Jeannie Nicely through the criminal acts of the defendant. First, there was extensive testimony by family and friends that no one has seen or heard from Jeannie since April 23, 1985. "Worldwide communication and travel today are so facile that a jury may properly take into account the unlikelihood that an absent person, in view of his health, habits, disposition, and personal relationships would voluntarily flee, `go underground,' and remain out of touch with family and friends. The unlikelihood of such a voluntary disappearance is circumstantial evidence entitled to weight equal to that of bloodstains and concealment of evidence." Epperly v. Commonwealth, supra, at 228-229, 294 S.E.2d at 890. Given the close relationships the victim held with her daughters, parents, and friends, it is unlikely that she would voluntarily disappear and not contact them.

Second, defendant was apparently the last person to have seen the victim prior to her disappearance.

Third, the victim left her purse with medications, money, identification and other personal items at her place of work. It is unlikely that such personal possessions would have been left behind if she had voluntarily left her husband.

Fourth, defendant and the victim had experienced a stormy marital relationship, living together only three of the six years they were married.

Fifth, defendant's actions subsequent to the victim's disappearance were indicative of a consciousness of guilt. Defendant attempted to conceal the whereabouts of Jeannie's car. He told both of Jeannie's daughters and the sheriff's department that the car had broken down near New Philadelphia and that he had left it there. He later admitted to a witness that he had abandoned the car where it was found and had removed the license plates from the car. Further, defendant attempted to conceal the fact that his father had accompanied him to the location where he had abandoned the car. Additionally, while in the Tuscarawas County Jail, defendant had the following telephone conversation with his mother:

"NICELY: * * * they've got Man Arrested for Murdering His Wife.

"* * *

"MOM: Well how could — well, why, did they find her?

"NICELY: No, not yet.

"* * *

"NICELY: Ya, Dad ever change his tires.

"MOM: Hum, not yet.

"NICELY: Tell him he better.

"MOM: Un-huh — all right, just the back one?

"NICELY: Tell him to change them all.

"MOM: All right.

"NICELY: They're ready to blow out.

"MOM: All right.

"NICELY: He'll get hurt.

"MOM: Ah.

"NICELY: You know what I mean?

"MOM: On that blue one?

"NICELY: No, on his truck.

"MOM: Oh, why, they no good?

"NICELY: No, mom, change them.

"MOM: Oh, okay, all right. Oh, boy. I didn't know they allowed you to talk.

"NICELY: Ya, ya, they got me charged with aggravated murder.

"* * *

"NICELY: Make sure he changes them tires."

Sixth, defendant had made a prior threat to kill Jeannie.

Seventh, the state presented testimony by several of the investigating officers and forensic experts regarding the presence of blood in the defendant and victim's trailer home and the abandoned car. One expert witness testified that the amount of blood found in the home was "a large amount," "a very substantial amount," "[l]arge amounts," and a "pool." Further expert testimony indicated that the blood from the couch inside the trailer home was human blood and the same type as Jeannie's. Additional testimony indicated that blood identified as Jeannie's was found inside the abandoned car. The defense presented contradictory expert testimony concerning the blood typing and evidence that the defendant had used the car to carry animals he had killed while hunting. It was, however, the jury's duty to weigh the evidence.

Eighth, items from the car were found along the river bank and in the river near the abandoned car. Several of Jeannie's personal possessions, including the purple robe she always wore, a blanket she kept on her bed, and an old blanket she stored in a closet were found in a bag weighted down by concrete in Wills Creek near the abandoned car. A hole was located in the back neck area of the robe.

Ninth, a blood spot on the leg of the defendant's trousers which were removed from him at the time of his arrest was Jeannie's type and not the defendant's.

Our review of the record indicates that there was sufficient probative evidence from which reasonable minds could conclude, as did the jury at trial, that Jeannie Nicely is dead and that the defendant purposely caused her death. "The fact that a murderer may successfully dispose of the body of the victim does not entitle him to an acquittal. That is one form of success for which society has no reward." People v. Manson (1977), 71 Cal.App.3d 1, 42, 139 Cal.Rptr. 275, 298, certiorari denied (1978), 435 U.S. 953.

Our review of the record causes us to conclude that the jury did not err in finding that there was no reasonable theory of innocence upon which defendant could be found not guilty of the crime of murder.

For the foregoing reasons, we hold that where substantial credible evidence upon which a jury has based its verdict is presented both as to guilt and also as to the corpus delicti of the crime, a reviewing court abuses its discretion by substituting its judgment for that of the jury as to the weight and sufficiency of the evidence.

Accordingly, the judgment of the court of appeals is reversed and the judgment of the trial court is reinstated.

Judgment reversed.


Summaries of

State v. Nicely

Supreme Court of Ohio
Oct 19, 1988
39 Ohio St. 3d 147 (Ohio 1988)

holding that "in the absence of a human body, a confession, or other direct evidence of death, circumstantial evidence alone may be sufficient to support a conviction for murder"

Summary of this case from State v. Torres

In State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988), for example, the evidence showed that the defendant, who made no admission, had a stormy marriage with his wife and that she had announced her intention of leaving him the night of her disappearance.

Summary of this case from Government of Virgin Islands v. Harris

stating circumstantial evidence is not less probative than direct evidence and in some instances is even more reliable

Summary of this case from State v. Henson

stating that "[u]nder Ohio law, * * * circumstantial evidence can have the same probative value as direct evidence, and ‘ conviction can be sustained based on circumstantial evidence alone’ "

Summary of this case from City of Columbus v. Beasley

noting that "[c]ircumstantial evidence is defined as ‘[t]estimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved’ "

Summary of this case from Tavtigian v. Foster

stating that "[c]ircumstantial evidence is defined as ‘[t]estimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved’ "

Summary of this case from Zidron v. Metts

leaving behind personal possessions may imply that the victim did not leave voluntarily

Summary of this case from State v. Barker

In Nicely, the court stated that proof of guilt may be made by circumstantial evidence, real evidence, and direct or testimonial evidence, or any combination of the three, and all three have equal probative value.

Summary of this case from State v. Harris

In State v. Nicely (1988), 39 Ohio St.3d 147, the Ohio Supreme Court held that circumstantial evidence may be sufficient to support a conviction.

Summary of this case from State v. Warren
Case details for

State v. Nicely

Case Details


Court:Supreme Court of Ohio

Date published: Oct 19, 1988


39 Ohio St. 3d 147 (Ohio 1988)
529 N.E.2d 1236

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