## Facts

- Peter Tomaino owned VIP Video, a sexually oriented video sales and rental store in Millville, Ohio.
- On October 13, 1997, a 17-year-old (Mark Frybarger) rented a video from VIP Video using his father’s driver’s license and credit card; after the rental, they contacted the sheriff’s department.
- On October 14, 1997, law enforcement arranged a controlled purchase: Mark returned wearing a transmitter and carrying marked money.
- Mark told clerk Billie Doan he had been there the prior day, claimed he was 37 years old, and said he had no identification; Doan accepted $100 cash for four videos without requesting proof of age.
- A grand jury indicted Tomaino, Doan, and VIP Video for (1) recklessly disseminating obscene material to juveniles and (2) disseminating matter harmful to juveniles under Ohio Rev. Code § 2907.31.
- The state amended its theory to claim Tomaino “recklessly failed to supervise” employees and failed to implement measures such as signage or restrictions to prevent juvenile access.
- At trial, Tomaino was acquitted on the obscenity count but convicted on the “matter harmful to juveniles” count based on Doan’s October 14 sale.

## Issues

1. Whether Ohio Rev. Code § 2907.31 permits criminal liability for a store owner based solely on an employee’s sale to a juvenile, on a “reckless failure to supervise/prevent access” theory not expressly stated in the statute.
2. Whether the conviction could stand when the case was submitted to the jury without complicity (aiding and abetting) instructions and without proof that Tomaino personally disseminated the material.

## Decision

- The court of appeals reversed Tomaino’s conviction for disseminating matter harmful to juveniles and remanded.
- The court held criminal liability must be grounded in statutory text and cannot be created by judicially imposing a supervisory duty not enacted by the legislature.
- The court concluded § 2907.31 targets the person who disseminates and does not create vicarious liability for owners based on an employee’s act or generalized “failure to supervise.”
- The jury instructions constituted plain error because they allowed conviction on a non-statutory theory and did not instruct on complicity.

## Legal Principles

- Criminal liability in Ohio is statutory; courts may not extend criminal statutes by adding duties or bases for liability not stated by the General Assembly.
- Absent express statutory language, an owner is not vicariously criminally liable for an employee’s criminal act merely because of ownership, knowledge of inventory character, or lack of store policies.
- Liability based on another’s act generally requires a properly charged and instructed complicity theory; submitting a case on an uncharged, non-statutory theory can be plain error.

## Conclusion

The appellate court set aside the conviction because § 2907.31 did not authorize convicting a store owner for a clerk’s sale to a juvenile on a “reckless failure to supervise” theory, and the jury was not instructed on complicity as a lawful basis for attributing the employee’s act to the owner.


State v. Tomaino, 135 Ohio App. 3d 309 (Ohio Ct. App. 12th Dist. 1999)