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. 

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. 

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.