State v. Nicely

• Decision Date: 19 October 1988
• Docket Number: 87-701,Nos. 87-672,s. 87-672
• Citation: 529 N.E.2d 1236,39 Ohio St.3d 147
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. NICELY, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 147

39 Ohio St.3d 147

529 N.E.2d 1236

The STATE of Ohio, Appellant and Cross-Appellee, v. NICELY, Appellee and Cross-Appellant.

Nos. 87-672, 87-701.

Supreme Court of Ohio.

Submitted May 17, 1988.

Decided Oct. 19, 1988.

Syllabus by the Court

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.

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 supproted 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, Pros. Atty., for appellant and cross-appellee.

Gottlieb, Johnston, Beam & Joseph and Miles D. Fries, Zanesville, for appellee and cross-appellant.

MOYER, Chief Justice.

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....