A clerk at a video store sold an R-rated video to a minor, despite the store owner not being present. The store owner was convicted under a statute prohibiting disseminating harmful materials to juveniles. The appellate court reversed the conviction, finding that the statute requires personal action by the defendant, and as the owner was not present, the statute did not apply to him. The case was remanded for a new trial with proper jury instructions.

1. HaroldSowardsII
CJ 322, Tu/Th 9:30
9/30/15
State v. Tomaino
733 N.E. 2d 1191 (Ohio App. 1999)
1. Facts
 Peter Tomaino owns VIP Video which only sales sexually oriented materials in Millville,
Ohio
 On Oct. 13, 1997 Mark (17) and Carl (37) Frybarger attemptto allow Mark to rent videos
using Carl’s id and credit card, the purchase get completed
 The FrybargersinformtheButlerCo.Sheriff’sDept.andSgt.GregBlankenshipwantsthem
to repeat the action again with market money and a wire
 On Oct. 14, 1997 a differentclerk (Billie Doan) is working and Mark repeats the process
with no id and $100 in cash and afterwards informs her that she is to be arrested
 She fails to contact Tomaino
 Theyare convictedinthe Courtof CommonPleas,ButlerCo.with2counts:1 of recklessly
disseminating obscene materials to juveniles and 1 of disseminating matter harmful to
juveniles
 Tomaino appeals
 Court of Appeals reversed and remanded the decision
2. Issue
Is the charge against Tomaino meet the liability that the statute limits the situation to?
3. Holdings
No, reversed and remanded
4. Reasoning
Vicariousliabilitycanbe createdbystatutesnot bycourts. Liabilitybasedonownershipmayalso
be imposedbystatutes. Whileitisundisputedthatthe clerksoldthe video tothe minor,Tomaino
wasn’tpresent.Uponreadingthe statute “disseminatingmatterharmful tojuveniles”itrequires
a personal actionbythe defendant.Sincethe defendantwasn’tpresentitcan’tbe appliedtohim.
Therefore the jury was not properly instructed during the trial.