State v. Tomaino

135 Ohio App. 3d 309 (1999)

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State v. Tomaino

Ohio Court of Appeals
135 Ohio App. 3d 309 (1999)

  • Written by Sharon Feldman, JD

Facts

Peter Tomaino (defendant) owned VIP Video (VIP) (defendant), a video sales and rental store that carried pornographic materials. After Carl Frybarger had his 17-year-old son Mark use Carl’s driver’s license and credit card to rent a video from VIP, the drug and vice police wired Mark and had him purchase videos with marked money. The clerk, Billie Doan (defendant) permitted Mark to purchase four videos with cash without showing proof of age. Doan, Tomaino, and VIP were charged with recklessly disseminating obscene material and matter harmful to juveniles. The state (plaintiff) maintained that Tomaino recklessly failed to supervise his employees and it was reckless not to post a sign saying “no sales to juveniles.” Tomaino was acquitted of disseminating obscene material and convicted of disseminating matter harmful to juveniles. The court denied Tomaino’s motion for judgment of acquittal, ruling that the jury could find that Tomaino, as the store owner, had knowledge of the character or content of the material being sold and did not implement any policies or procedures to prohibit the entrance of and sales to juveniles. Tomaino appealed, arguing that no statute criminalized his actions or inactions.

Rule of Law

Issue

Holding and Reasoning (Walsh, J.)

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