Question: Was the Owner Liable for the Clerk Renting "Pornos" to a Minor?

HISTORY: Peter Tomaino, the owner of an adult video store, was convicted in the Court of Common Pleas, Butler County, of disseminating matter harmful to juveniles. He appealed. The Court of Appeals reversed and remanded. WALSH, J. FACTS Peter Tomaino, the appellant, owns VIP Video, a video sales and rental store in Millville, Ohio. VIP Video's inventory includes only sexually oriented videotapes and materials. On October 13, 1997, Carl Frybarger, age 37, and his son Mark, age 17, decided that Mark should attempt to rent a video from VIP. Mark entered the store, selected a video, and presented it to the clerk along with his father's driver's license and credit card. The purchase was completed and the Frybargers contacted the Butler County Sheriff's Department. After interviewing Mark and his father, Sergeant Greg Blankenship, supervisor of the Drug and Vice Unit, determined that Mark should again attempt to purchase videos at VIP Video with marked money while wearing a radio transmitter wire. On October 14, 1997, Mark again entered the store. A different clerk was on duty. Following Blankenship's instructions, Mark selected four videos and approached the clerk. He told her that he had been in the store the previous day and that he was 37. Mark told the clerk that he had used a credit card on that occasion and that he was using cash this time and thus did not have his identification with him.

The clerk accepted the cash ($100) and did not require any identification or proof of Mark's age. It is this video transaction that constitutes the basis of the indictment. The clerk, Billie Doan, was then informed by Blankenship that she had sold the videos to a juvenile and that she would be arrested. Doan said that she needed to call the appellant and made several unsuccessful attempts to contact the appellant at different locations. The grand jury indicted appellant Tomaino and Doan on two counts. Count One charged the defendants with recklessly disseminating obscene material to juveniles and Count Two charged the defendants with disseminating matter that was harmful to juveniles. OPINION Billie Doan was tried separately from appellant. Appellant moved to dismiss the indictment against him. During pretrial proceedings, appellant argued that criminal liability could not be imputed to him based on the actions of the clerk. The state moved to amend the bill of particulars to provide that appellant "recklessly failed to supervise his employees and agents." The trial court denied appellant's motion to dismiss and the case against appellant proceeded to a jury trial on August 25, 1998. Mark and Carl Frybarger and Blankenship testified on behalf of the state; the defense presented no evidence. Counsel for appellant made a motion for acquittal pursuant to Crim.R. 29 at the close of the state's case. The trial court overruled the motion. The state argued that appellant was reckless by not having a sign saying "no sales to juveniles." Appellant argued in part that he was not liable for the clerk's actions. The jury was instructed that in order to convict they must find beyond a reasonable doubt that appellant, recklessly and with knowledge of its character or content, sold to a juvenile any material that was obscene (Count One) and harmful to a juvenile (Count Two).

The jury was also instructed on the definitions of knowingly and recklessly and on the definitions of obscene material and of material harmful to juveniles (emphasis added). The jury found appellant not guilty on Count One (disseminating obscene material) and guilty on Count Two (disseminating matter harmful to juveniles). Following the verdict, appellant moved for both a judgment of acquittal and a new trial. Appellant again argued that he could not be held criminally liable for the acts of another and that there was no evidence that he had recklessly provided material harmful to a juvenile. The trial court denied both motions. The court stated that the jury could find that appellant was the owner of the store and thus had knowledge of the character or content of the material being sold in his store. The court also stated that appellant "did not implement any policies, plans or procedures to prohibit entrance of juveniles into his store or the sale of material to juveniles." Appellant argues that no statute imposed criminal liability for his actions or inactions. Having carefully reviewed the state's arguments, we must agree, although we hold that the court erred in its instructions to the jury rather than in denying the motion for acquittal. Appellant was convicted of disseminating matter harmful to juveniles. R.C. 2907.31 provides in relevant part: (A) No person, with knowledge of its character or content, shall recklessly do any of the following:

(1) Sell, deliver, furnish, disseminate, provide, exhibit, rent, present to a juvenile any material or performance that is obscene or harmful to juveniles. Ohio has no common law offenses. Criminal liability is rigidly and precisely limited to those situations that the General Assembly has specifically delineated by statute. In R.C. 2901.21, the legislature has further provided that a person is not guilty of an offense unless both of the following apply:

(1) His liability is based on conduct which includes either a voluntary act, or an omission to perform an act or duty which he is capable of performing;

(2) He has the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense. Vicarious liability for another's criminal conduct or failure to prevent another's criminal conduct can be delineated by statute; it cannot be created by the courts. Statutes defining offenses are to be strictly construed against the state and liberally construed in favor of the accused. The elements of a crime must be gathered wholly from the statute. Liability based on ownership or operation of a business may be specifically imposed by statute. For instance, the owner of premises used for gambling- even if he is not present while gambling occurs-can be criminally liable under the statute prohibiting operating a gambling house. Such premises-oriented liability is specifically imposed by the statute, which provides in part that "no person being the owner of premises shall recklessly permit such premises to be used or occupied for gambling" (R.C. 2915.03). It is undisputed that the clerk furnished the video to the minor and that appellant was not present. Because we find that a plain reading of the disseminating matter harmful to juveniles statute requires personal action by a defendant and does not by its terms impose vicarious or premises-oriented liability, the jury was not correctly instructed in this case. Judgment reversed and cause remanded.
QUESTIONS

1. State the elements of the Ohio statutes relevant to Peter Tomaino's liability for Billie Doan's acts.

2. Summarize the events that led to Tomaino's prosecution.

3. Summarize the state's arguments in favor of Tomaino's vicarious liability.

4. Summarize Tomaino's arguments against his vicarious liability for Billie Doan's acts.

5. Summarize the Ohio Court of Appeals' reasons for rejecting vicarious liability under the Ohio statute referred to in (1).

6. In your opinion, should Peter Tomaino be liable for Billie Doan's acts? Back up your answer with facts from the case and the arguments from the state, Tomaino, and the court.