Summary
In Sleppy and Parker, as a municipal court judge, I held that a recklessness standard must be applied to R.C. 4301.69 (A) because the section does not specify the degree of culpability and does not plainly indicate a purpose to impose strict liability.
Summary of this case from State v. ChumbleyOpinion
No. 91-CRB-35871.
Decided March 31, 1992.
Kevin O. Donovan, Assistant City Prosecutor, for plaintiff.
Gregory M. Nolan, for defendant.
This case was tried before the court on January 19, 1991. The defendant, Cheryl Sleppy, was charged with selling alcohol to a minor, in violation of R.C. 4301.69.
Cherie Cornell, a prosecution witness, entered the nightclub where defendant was a waitress. She presented a spurious Ohio identification card to the doorman, who then placed a red stamp on the witness's hand to signify that she was over twenty-one years old. These stamps were changed daily to foil imitations. As the evening progressed, the bartender also checked the witness's identification, when she obtained a drink at the bar. Prior to the intervention of the officers, the witness was served alcoholic beverages throughout the evening. Defendant served her one alcoholic beverage and was subsequently arrested.
The witness testified that her birthday was July 7, 1973. At the time of the charged offense, she would have been well under the legal drinking age, though the Ohio identification card which she exhibited indicated that she was of age. The witness's picture was on the I.D. card, but the birthdate was incorrect. The I.D. card appeared to be legitimate, even to the arresting officers.
The witness was successfully prosecuted for underage purchase of alcohol, R.C. 4301.632, prior to the trial in this case.
I. Age
The defendant's first contention is that the prosecution is unable to establish that the defendant violated R.C. 4301.69 because the law of hearsay evidence prevents the witness from testifying as to her age at the time of the charged offense. The defendant's assertion is based on Evid.R. 602, which states, in relevant part: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." The defendant argues that the prosecution has not introduced any evidence that would establish that the witness has first-hand knowledge of the date of her birth. Rather, the witness has relied on statements made by her mother and family to determine the date of her birth. Therefore, the defendant argues, this lack of firsthand knowledge regarding the date of the witness's birth renders her testimony on this issue inadmissible hearsay.
A person may testify regarding his or her age. In a case concerning delinquency of a minor, the court allowed a minor to testify as to her age without requiring additional documentary support. Jacobs v. State (1929), 7 Ohio Law Abs. 326, 29 Ohio Law Rep. 610. The court found that the testimony was admissible because it was subject to the scrutiny and examination of the trial court. Id. In State v. Hyatt (1987), 9 Conn. App. 426, 519 A.2d 612, the Connecticut appellate court stated as follows:
"Strictly speaking, when a person testifies regarding her age, that testimony is hearsay since one cannot exactly know her own age. A person is incapable of noting the fact of birth. Nonetheless, a person's belief or knowledge of her age usually has a reliable and satisfactory basis in statements of witnesses, parents, family reputation, or writings in possession of the family and preserved as records or family history. 2 F. Wharton, Criminal Evidence (14th Ed. Torcia) Sec. 272. Courts have commonly preferred to accept this practical certainty rather than to insist on academic nicety. 2 J. Wigmore, Evidence (Chadbourn Rev.) Sec. 667.
"The great weight of authority holds that a witness is competent to testify to her own age and date of birth. (citations omitted) More specifically, a witness may testify concerning her age in prosecution where age is an essential element of the crime. 2 F. Wharton, supra."
There is sufficient authority holding that a witness may testify to that witness's own age. Commonwealth v. Stevenson (1886), 142 Mass. 466, 8 N.E. 341; Creer v. Active Auto Exchange, Inc. (1923), 99 Conn. 266, 121 A. 888; Kelly v. State (1972), 258 Ind. 196, 280 N.E.2d 55; State v. Riley (1970), 111 N.J. Super. 551, 270 A.2d 47; Watkins v. Commonwealth (Ky. 1974), 514 S.W.2d 185. Consequently, the witness's testimony regarding her age is admissible.
II. R.C. 4301.639 Defense
The defendant asserts that R.C. 4301.639 provides her with a defense against the criminal liability imposed by R.C. 4301.69. R.C. 4301.639 states as follows: "No permit holder, his agent, or employee, may be found guilty of a violation of any section of this chapter or any rule of the liquor control commission in which age is an element of the offense, if the liquor control commission or any court of record finds all of the following: (A) That the person buying, at the time of so doing, exhibited to the permit holder, his agent, or employee a driver's or commercial driver's license or an identification card issued under sections 4507.50 to 4507.52 of the Revised Code showing that such person was then of legal age to buy beer or intoxicating liquor; (B) That the permit holder, his agent, or employee made a bona fide effort to ascertain the true age of the person buying by checking the identification presented, at the time of the purchase, to ascertain that the description on the identification compared with the appearance of the buyer and that the identification presented had not been altered in any way; (C) That the permit holder, his agent, or employee had reason to believe that the person buying was of legal age."
Numerous arguments can be made on this issue, generally revolving around the "time of purchase." However, before the applicability of these defenses can be considered, the defendant must be determined to have the appropriate mens rea for a criminal conviction.
III. Culpability
R.C. 4301.69 is a criminal offense, violation being punishable by up to one hundred eighty days in jail and/or $1,000 fine. It is silent as to the requisite mens rea. It states: "[N]o person shall sell beer or intoxicating liquor to an underage person * * *." R.C. 2901.21(B) states: "When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense." (Emphasis added.)
The Supreme Court of Ohio was confronted with a statute that was similarly worded, as it applied to the requisite level of culpability, when it considered the constitutionality of R.C. 2907.323(A)(3) (statute concerning the use and possession of photographic material containing nude children), which states, in part: "No person shall do any of the following * * *." State v. Young (1988), 37 Ohio St.3d 249, 525 N.E.2d 1363. The court reviewed the statute and found that the statute did not specify any degree of culpability nor did it plainly indicate an intent to impose strict liability. The court did not consider the words, "No person shall * * *" sufficient to plainly indicate a purpose to impose strict liability. Id.
The Supreme Court of Ohio also applied R.C. 2901.21 to R.C. 2919.22(B), which defines the type of conduct that is considered child endangerment, to determine the necessary mens rea. State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144. R.C. 2919.22(B) provided, in part, that, "No person shall do any of the following to a child * * *." Id. The court found that this language did not state a degree of culpability nor did it plainly indicate a purpose to impose strict liability. Hence, the court held that the reckless standard of R.C. 2901.21(B) should be applied.
In a case directly on point, the Dayton Municipal Court, Michael Merz, J., considered the culpability necessary to convict under R.C. 4301.69. State v. McGhee (1984), 12 Ohio Misc.2d 18, 12 OBR 490, 468 N.E.2d 400. The court, after reviewing the legislative history of R.C. 2901.21(B), in light of R.C. 4301.69, held that it was clear that recklessness was the standard. This holding was based on the fact that R.C. 4301.69 does not mention a requisite mens rea nor does it clearly state an intent to impose strict liability. Therefore, the court was bound to apply the reckless standard in R.C. 2901.21(B). Id. Of course, R.C. 2901.04(A) provides that criminal statutes are to be strictly construed against the state and liberally construed in favor of the accused.
This court is persuaded by the well-researched and obviously thoughtful opinion in McGhee. Other cases considering this issue have given its arguments, legislative history and logic short shrift. State v. Cheraso (1988), 43 Ohio App.3d 221, 540 N.E.2d 326 (an extremely questionable decision, citing only a 1942 case decided before the change in the Criminal Code. This case, in unexamined stare decisis run wild, has been cited and followed in most of the other cases. Now, even the Eleventh District, which decided Cheraso, has questioned its previous decision, albeit in a case involving another statute. See State v. Lapping (1991), 75 Ohio App.3d 354, 599 N.E.2d 416); State v. Jones (1989), 57 Ohio App.3d 155, 567 N.E.2d 313; State v. Wilson (June 13, 1991), Delaware App. No. 90-CA-38, unreported, 1991 WL 115985; State v. McConnell (Nov. 2, 1988), Champaign App. No. 88-CA-5, unreported, 1988 WL 120127; State v. Ohl (May 27, 1988); Geauga App. No. 1390, unreported, 1988 WL 57335; State v. Veith (Feb. 18, 1987), Summit App. No. 12557, unreported, 1987 WL 6964.
Other courts' reliance on the rationale enunciated in State v. Buehler Food Markets, Inc. (1989), 50 Ohio App.3d 29, 552 N.E.2d 680, to impose the burden of strict liability upon the individual server, as opposed to the tavern owner, seems misplaced. The court held in Buehler Food Markets, Inc. that R.C. 1327.61(B), which states in part that, "No person shall: * * * (B) Wrap, package, label or advertise any product contrary to the provisions of Chapter 1327. of the Revised Code * * *," imposes strict liability upon the retail establishment that sells the mislabeled product. This holding was based on the substantial public interest in properly marked food and the retailer's unique position to institute procedures that would ensure that the packages were properly marked. Id. However, it should be noted that the court did not attempt, or even consider, whether liability should be imposed on the individual who wrapped the improperly marked package. Rather, the court applied the words, "No person shall," in R.C. 1327.61(B) to the retail establishment and not the individual employee who mislabeled the package.
Especially relevant in the instant case is the following quotation from McGhee:
"Before the new Ohio Criminal Code was adopted, it was clear that a violation of R.C. 4301.69 could be established without proof of a culpable mental state or mens rea. State v. Buttery (1953), 95 Ohio App. 236 [53 O.O. 168, 118 N.E.2d 548]. While at common law, proof of a culpable mental state was required for at least those criminal offenses malum in se, see Perkins, Criminal Law (2 Ed. 1969) 785, this century has seen an explosion of regulatory offenses where strict criminal liability is imposed — liability without respect to fault. Some of the most frequently enacted and upheld of such strict liability statutes are liquor control measures. [Citations omitted.]
"However, the trend toward imposing criminal guilt without fault met universal condemnation from the commentators. They pointed out that strict liability crimes cannot deter because by hypothesis no amount of care by a defendant will excuse the violation. They argued that strict liability does not fit the retribution model because, again by hypothesis, the offender is not at fault in any way. Strict liability offenses degrade the criminal sanction, they noted, by labeling blameless people as criminals. Even when the technique must be used for speedy prosecutions in high volume cases, they stressed that only fines, and never the truly criminal punishment of incarceration, should be attached." (Citations omitted and emphasis added.) Id., 12 Ohio Misc.2d at 19-20, 12 OBR at 491-492, 468 N.E.2d at 402-403.
This court is also persuaded by the equally well-considered dissent by Judge William B. Hoffman in State v. Wilson (June 13, 1991), Delaware App. No. 90-CA-38, unreported, 1991 WL 115985. Judge Hoffman states as follows: "I am unaware of any crime that does not contain the `No person shall * * *,' language. The Ohio Supreme Court has ruled in State v. Parrish (1984), 12 Ohio St.3d 123, 124, 12 OBR 164, 165, 465 N.E.2d 873, 874, that R.C. 2907.25(A) (prostitution) does not `plainly indicate' an intention to impose strict liability. Likewise, in State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144, the Ohio Supreme Court held in paragraph one of the syllabus, that R.C. 2919.22(B)(2) (child endangering) was not a strict liability offense. The statutes respectively reviewed in Parrish and Adams contained the `No person shall * * *,' language and both failed to refer to any other requisite culpable mental state.
"* * *
"As stated supra, the Supreme Court of Ohio has held that child endangering, R.C. 2919.22(B)(2), is not strict liability despite its intention to protect children. Very clearly, the determination of strict liability is problematic and is being conducted on a case-by-case, district-by-district basis.
"In light of Parrish, Adams, and Young, and the principle that criminal statutes are to be strictly construed against the state (R.C. 2901.04), I find the argument that R.C. 4301.69 plainly indicates the intent of the legislature to impose strict criminal liability unpersuasive. I conclude R.C. 2901.21(B) requires proof of recklessness to sustain a conviction under R.C. 4301.69."
This court follows the Ohio Supreme Court's interpretation and application of R.C. 2901.21 in Adams and Young that a statute which lacks a plain indication to apply strict liability and fails to specify a culpability requires a finding of recklessness before a defendant can be convicted. This court is in total accord with the application of R.C. 2901.21(B) to R.C. 4301.69 in McGhee, and in the dissent in State v. Wilson.
Strict liability offenses make criminals of blameless people. We have criminals enough without creating them wholesale by statutory misinterpretation. The state has sufficient regulatory and police power over the serving of alcoholic beverages without recourse to the heavy hand of criminal sanctions. We must remember that we are dealing here with an individual who, by any common-sense standard, does not deserve to be branded a criminal. It is also relevant that the criminal sanction was quite properly applied to the witness, who was surely guilty of the purchase of liquor while not of legal age.
IV. Recklessness
Did the defendant act recklessly? Surely not. "Recklessly" is defined in R.C. 2901.22(C), as follows: "A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist." The witness, in the case at bar, had her identification checked at the door by the doorman, who then placed a red stamp upon her hand. The defendant was trained in this procedure, and relied upon it. Prior to the defendant's serving the witness an alcoholic drink, she observed that the witness had an alcoholic drink in front of her and checked her hand for the red stamp. Clearly, the defendant did not act in a reckless manner. She relied on the doorman's examination of the witness's identification and subsequent hand stamp at the door, the fact that other employees had served the witness during the evening, and her observation of the proper hand stamp on the witness's hand at the time she served her. Further, the officers themselves believed that the witness was of legal age, and first cited her for furnishing to a minor, in violation of R.C. 4301.69(A), before she "fessed up" and admitted that she too was not of age.
Though this court did not need to reach the issue of the R.C. 4301.639 defense, it is interesting to note that, had the defendant checked the witness's identification, she, like the doorman and the officers, would have been taken in by the witness's deception.
The defendant acted in a rational and non-reckless manner when she relied on the doorman to check the patrons' identifications as they entered the bar and then placed a red stamp upon the hand of those who were of legal drinking age, and upon her own observation of the witness, who appeared, even to the officers, to be of legal age.
The defendant is not guilty.
Judgment accordingly.