{¶ 103} I agree with the majority's resolution of six of seven assigned errors. However, I disagree with the majority's resolution of the first assignment of error.
{¶ 104} I would conclude that the State of Ohio failed to establish the corpus delecti of both gross abuse of a corpse and tampering with evidence. The majority correctly cites State v. Van Hook (1988), 39 Ohio St.3d 256,530 N.E.2d 883, for the proposition that the corpus delecti rule does not require evidence related to all elements of the crime(s) charged. However, the rule does require independent evidence, albeit minimal, of some material element of the crime(s) charged.
{¶ 105} To support its theory that the disappearance of Erica Baker, without any independent evidence, is sufficient to satisfy the corpus delicti rule, the state of Ohio relies on three wholly distinguishable cases in its brief. In State v. Black (1978), 54 Ohio St.2d 304,8 O.O.3d 296, 376 N.E.2d 948, the victim was discovered without her purse and shopping bag, which she had been observed carrying when she left work just prior to being shot. This evidence, both direct and circumstantial, was deemed sufficient to admit the defendant's confession to aggravated robbery. The defendant's confession in State v. Newberry (Dec. 18, 1987), Montgomery App. No. 10353, 1987 WL 29572, to car theft was admitted after the prosecution presented evidence that the victim's motor vehicle had, in fact, been moved from its usual parking spot. Last, in State v. McCormick, Montgomery App. No. 19505, 2003-Ohio-5330, 2003 WL 22287847, the defendant, a state trooper, confessed to wiping down the firearm he had used to shoot his wife. The confession was admitted after the state presented evidence about defendant's unusual conduct on the day of the shooting, as well as the odd fact that he wore only one sock to work on the day he was arrested. This evidence allowed for the inference that the defendant had removed one of his socks in order to wipe down the gun.
{¶ 106} In all of the above cases, independent evidence existed that corroborated some material element of the charged offenses, thus satisfying the corpus delicti rule. In the instant case, no such evidence has been presented that even tenuously demonstrates that Gabriel tampered with evidence or abused Erica's corpse.
{¶ 107} The fact that Erica is missing, standing alone, is insufficient to indicate death. Absent any direct or circumstantial evidence of a human corpse or its abuse or concealment, there is no evidence outside of appellant's confession that Erica is, in fact, dead, or that her body has been mistreated and/or concealed. There is neither evidence of "an act" nor a "criminal agency." The majority concludes that the circumstances of her disappearance "tend" to show that Erica *Page 417 Baker is dead rather than abducted and still alive. However, evidence equally consistent with two hypotheses "tends" to prove neither.
{¶ 108} While the state of Ohio may rely on a combination of direct and circumstantial evidence, or circumstantial evidence alone to establish guilt, "in a criminal prosecution the corpus delecti may be established by circumstantial evidence when the inference of the happening of the criminal act complained of is the only probable or natural explanation of the proven facts and circumstances." (Emphasis added.) State v. Nevius (1947),147 Ohio St. 263, 34 O.O.210, 71 N.E.2d 258, paragraph five of the syllabus.
{¶ 109} The flaw in the majority's reasoning is that the independent evidence, to wit, Erica's disappearance, standing alone, is ambiguous, and the ambiguity is resolved only by appellant's statements. As noted in Edwards, Ohio has clearly retained the rule that the corpus delecti of the charges must be established prior to the admission of Gabriel's statements. Ohio has not yet adopted the federal rule, which requires only a showing of "trustworthiness" of a confession or independent evidence that merely "tends" to corroborate.
{¶ 110} Further, any reference to R.C.2121.01(A)(1), a probate statute addressing a presumption of death after five years, has no place in a criminal prosecution. In the law, there is a general presumption of the continuation of life. See 30 Ohio Jurisprudence 3d (1981), Presumption as to Continuance of Life, Section 3. R.C. 2101.01(A)(1) merely replaces the presumption of life with a presumption of death in certain circumstances for civil proceedings, such as distribution of estate assets and life insurance.
{¶ 111} There is simply no evidence in the record before us, outside of Gabriel's confession, that establishes the corpus delecti of either indicted charge. The Ohio Supreme Court in Edwards and State v.Black (1978), 54 Ohio St.2d 304, 8 O.O.3d 296,376 N.E.2d 948, reaffirmed the principle that the confession is not admissible until after establishment of the corpus delecti. I would sustain the first assignment of error and reverse, finding that the evidence of corpus delecti is deficient. *Page 418