State v. Condon
| Citation | 789 N.E.2d 696 |
| Decision Date | 09 May 2003 |
| Docket Number | APPEAL NO. C-020262.,TRIAL NO. B-0100380(A). |
| Parties | STATE OF OHIO, Plaintiff-Appellee, vs. THOMAS CONDON, Defendant-Appellant. |
| Court | United States Court of Appeals (Ohio) |
Michael K. Allen, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Sirkin, Pinales, Mezibov & Schwartz, LLP, H. Louis Sirkin, and Jennifer M. Kinsley, for Defendant-Appellant.
{¶ 1} The defendant-appellant, Thomas Condon, appeals from his conviction and sentence on eight counts of grossly abusing eight different corpses, violations of R.C. 2927.01(B). The statute prohibits anyone, without authorization of law, "to treat a human corpse in a way that would outrage reasonable community sensibilities." Acting without official permission or the consent of family members, Condon used the corpses as models for his photographic art, taking pictures of them, some of which he posed with props, as they awaited retrieval in the Hamilton County Morgue. Based largely upon the extreme emotional harm inflicted upon the families after they discovered what Condon had done, the trial court imposed the maximum one-year sentence on seven counts, finding them to be among the worst forms of the offense, and a lesser, six-month sentence on the remaining count. The court ordered the two maximum sentences on counts two and five and the six-month sentence on count six to be served consecutively, for a total period of imprisonment of two and one-half years.
{¶ 2} Condon presents twelve assignments of error. Besides alleging violations of his Fourth Amendment rights, prosecutorial misconduct, and errors in the conduct of the trial, Condon asserts that his unauthorized use of the corpses as objects of his photographic art was a protected form of artistic expression under the First Amendment. Further, he challenges the constitutionality of R.C. 2927.01(B), arguing that the statute is both overly broad under the First Amendment and void for vagueness under the Fourteenth Amendment. Should we reject his arguments addressing the constitutionality of the statute, he challenges the weight and sufficiency of the evidence to support his convictions, and finally he challenges the sentence imposed by the trial court as overly harsh and contrary to law.
{¶ 3} We reject all of Condon's arguments under the First Amendment and the Due Process Clause, holding that the state could legitimately punish him, not for the content of the pictures, but for using the eight corpses as photographic models without any legal authorization and without first obtaining the consent of family members. In our view, his behavior was a sufficient affront to the dignity of the corpses, some of which he posed with props, to constitute their abuse under the statute. Furthermore, we hold that the statute is not unconstitutionally vague nor, given a reasonable construction, does it chill other forms of self-expression that do not involve abusing a corpse.
{¶ 4} We hold further that the police did not violate Condon's Fourth Amendment rights. Although we conclude that some of the prosecutor's remarks to the jury were improper and unprofessional, they did not give rise to reversible error, nor was the trial unfair. We hold, however, that the trial court erred by concluding that Condon's crimes violated a position of public trust and that they constituted the worst forms of the offense. Without diminishing their capacity to inflict extreme emotional harm on the families, Condon's crimes were certainly not among the worst examples of someone mistreating a corpse. We therefore exercise our authority under R.C. 2953.08(G)(2) to modify Condon's sentences, imposing the minimum term of imprisonment on all counts. We cannot say, however, that the trial court erred by ordering the sentences on counts two, five and six to run consecutively. Condon's term of imprisonment is thus reduced, with credit for that part of the sentence he has already served, from thirty to eighteen months.
{¶ 5} In 1999, Ernest Waits, owner of Universal Media Consultants, and Condon, his associate and photographer, approached Terry Daly, office administrative assistant for the Hamilton County Coroner's office, concerning their interest in a video project explaining death to children. Waits also informed Daly about a project that Condon was separately interested in, a photographic essay called "life cycles" that sought to capture each life cycle of a human being, including death. Daly explained that he could not allow Waits to do an unofficial project but asked him if he would be interested in creating an autopsy video for educational and professional purposes.
{¶ 6} In March 1999, the Hamilton County chief deputy coroner Dr. Carl Parrott held a meeting with Daly, Waits, Rhonda Lindemann, the Hamilton County Coroner's office administrator, and Condon to discuss making the proposed autopsy-training video. Dr. Robert Pfalzgraf, chief deputy coroner of pathology, may have been present at this meeting. The participants discussed that the video was to be used in a "death investigation" seminar designed to provide a detailed account of a death investigation, starting with the death and ending with a prosecution. The meeting adjourned with Parrott stating that he would contact the prosecutor's office for an opinion regarding the legal ramifications of videotaping corpses—particularly whether consent of the families was needed.
{¶ 7} Parrott testified that they discussed one of Waits's personal projects at the meeting, but he did not recall discussing anything proposed specifically by Condon. Daly recalled that there was some initial discussion regarding whether Waits and Condon could do their projects as a "quid pro quo" if they worked on the training video. Waits testified that Condon's project was discussed at the meeting and that Condon had given Parrott material pertinent to his project. Waits recalled that he was told that, before going forward with any of the projects, the coroner's office needed to secure permission from the prosecutor's office. He also recalled being told that the coroner's office would maintain complete control over any photographic images.
{¶ 8} The coroner's office subsequently received an opinion from the prosecutor's office regarding the propriety of using morgue corpses for an autopsy-training video. Although the letter was not admitted into evidence, Daly testified that the letter stated that use of morgue corpses for the video would be permissible only with court approval and/or the consent of the next of kin. Daly also testified that Parrott had declined the requests of Waits and Condon to pursue their individual projects.
{¶ 9} In July 2000, Waits and Condon received permission to enter the morgue to determine what resources they would need to make the autopsy-training video. According to Parrott, Condon was granted only limited access to the morgue to view one autopsy and to take limited photographs of the autopsy for the sole purpose of assessing the cost of the autopsy-training video. Parrott testified that Condon was not given permission to take or keep photographs for his personal use.
{¶ 10} Condon then visited the morgue on at least two occasions with official authorization in August 2000. On the first visit, both Waits and Condon merely assessed the autopsy room. On the second visit, on August 16, Condon videotaped Pfalzgraf performing an autopsy on John Brady. Pfalzgraf testified that Condon also took still pictures of the procedure.
{¶ 11} Subsequent discussion ensued regarding the cost of the training video. Waits submitted an estimate of $10,000. Both Parrott and Lindemann testified that the coroner's office did not have the necessary funds in its budget and that consequently the project was put in abeyance.
{¶ 12} There was a welter of testimony regarding who knew what and when with regard to the cancellation of the video project. Parrott testified that he informed Lindemann that the autopsy-training video had been cancelled and that Condon no longer had permission to be in the morgue after the project was cancelled. Pfalzgraf testified that he was never informed that the videotape project had been discontinued or that Condon was not allowed in the morgue. Daly further testified that he informed Waits in September that the autopsy-training video project could not be completed based on the budget set for 2000 and 2001. Daly testified that he informed Condon in October that the autopsy-training video project would not go forward.
{¶ 13} After October 2000, with the autopsy-training video project cancelled or on hold, Condon no longer had official authorization to be in the morgue for any purpose, let alone taking pictures of morgue corpses. Nonetheless, evidence was presented that after October 2000 Condon continued to visit the morgue and continued to take pictures of morgue corpses, apparently for the purposes of his own pet project, "life cycles," for which, as noted, he had been officially denied permission. During this period of unauthorized entry, he took pictures of the bodies of Adam Richardson, Perry Melton, Thomas Senteney, Debbie Beckman, Barbara Sowards, and Jonathan Frith. The pictures of Frith were apparently taken during the young boy's autopsy. In some of the pictures, Condon had placed props on or near the body, while some of the pictures were simply of the body lying in a state of repose.
{¶ 14} Finally, on January 7, 2001, Tyrone Smith and Clyde Gamble, both morgue attendants, saw Condon come into the morgue in the afternoon. According to Smith, he, Gamble, and Dr. Jonathan Tobias, a junior pathologist, were alone in the morgue when Condon came in with his camera equipment. According to Gamble, Condon talked with Tobias about...
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