State v. Chumbley

714 N.E.2d 968, 128 Ohio App. 3d 323

• Court: Ohio Court of Appeals
• Decided: June 12, 1998
• Docket: No. C-970236.
• Status: Published

Opinions

Hildebrandt, Presiding Judge.

We have, sua sponte, removed this case from its original setting on the accelerated calendar.

The defendant-appellant, Jennifer L. Chumbley, appeals from her conviction of sale of liquor to an underage person. Chumbley was the bartender at “Oscar’s,” a bar located in downtown Cincinnati. Oscar’s used a hand-stamp system to identify whether its patrons were of legal age to purchase alcohol. A “low” stamp was placed upon the hand of an underage patron, and a “high” stamp was placed upon the hand of a patron of legal age.

Upon entering the bar on October 10, 1996, twenty-year-old Kevin Boehmer had his hand marked with a “low” stamp indicating that he was underage. Boehmer then purchased a can of beer from Chumbley without showing any type of identification. At some time after this purchase, Boehmer transferred a “high” stamp onto his hand from another person who was of legal age. Boehmer then purchased a pitcher of beer and two “shots” of alcohol from Chumbley. Again, Boehmer did not present any form of identification. Cincinnati Police Officer Timothy Campbell observed the transactions. After the second transaction, an officer approached Boehmer and ascertained his age while another approached Chumbley. Officer Campbell testified that, at the scene, Chumbley indicated that she did not recall serving Boehmer. Chumbley was charged under R.C. 4301.69(A) for Boehmer’s second purchase of beer.

At trial, Chumbley testified on direct examination that Boehmer approached her twice to purchase alcohol. She stated that she “assumed” that Boehmer was of legal age because he initially approached the bar in the company of an employee of the bar. She stated that she did not see a stamp on Boehmer’s hand at the time of his first purchase, but that she did see a “high” stamp on his hand at the time of the second purchase. Chumbley stated that Boehmer did not provide any form of identification. She admitted that she had received alcohol-management training and was aware of the risk of selling alcohol to an underage person by not checking identification.

In her sole assignment of error, Chumbley argues that this court should reverse its previously held position that R.C. 4301.69(A) is a strict-liability offense. See State v. Burke (Dec. 19, 1979), Hamilton App. No. C-790028, unreported; State v. Moran (Nov. 4, 1992), Hamilton App. No. C-920279, unreported, 1992 WL 691953; State v. McCall (Sept. 29, 1995), Hamilton App. No. C-950045, unreported. We are not persuaded and affirm the judgment of the trial court for the following reasons.

In addition to the position held by this court, the overwhelming majority of courts that have visited this issue have found that R.C. 4301.69(A) is a strict-liability offense. See State v. Jones (1989), 57 Ohio App.3d 155, 567 N.E.2d 313; State v. Cheraso (1988), 43 Ohio App.3d 221, 540 N.E.2d 326; Markho, Inc. v. Ohio Liquor Control Comm. (Dec. 16, 1997), Franklin App. No. 97APE04-476, unreported, 1997 WL 782001; D. Michael Smith Enterprises, Inc. v. Ohio Liquor Control Comm. (Oct. 29, 1997), Summit App. No. 18332, unreported, 1997 WL 775658; State v. Spicer (Mar. 30, 1994), Greene App. No. 93-CA-55, unreported, 1994 WL 102097; Willie’s Joint Venture v. Ohio Liquor Control Comm. (Sept. 28, 1993), Franklin App. No. 93AP-497, unreported, 1993 WL 381214; 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. Smith (Oct. 14, 1987), Summit App. No. 13094, unreported, 1987 WL 18681; State v. Breiding (Feb. 4, 1987), Summit App. No. 12770, unreported, 1987 WL 6173; State v. Riley (Apr. 15, 1987), Summit App. No. 12733, unreported, 1987 WL 9841; State v. Won (Dec. 31, 1986), Summit App. No. 12658, unreported, 1986 WL 15277. The only contrary authorities in this state are three municipal court cases. 1

Although R.C. 4301.69(A) is a strict-liability offense, R.C. 4301.639 provides an affirmative defense to a defendant who is charged with a violation, but who has, in good faith, accepted false identification. R.C. 4301.639 provides that one may not be found guilty if the court finds that all of the following occurred at the time of purchase: (1) the purchaser exhibited a driver’s license or identification card that showed him to be of legal age to purchase intoxicating liquor; (2) the seller of the liquor made a bona fide effort to ascertain the true age of the purchaser by checking the identification at the time of purchase; and (3) the seller had reason to believe that the purchaser was of legal age. Eveh if Chumbley had claimed the affirmative defense, only the third requirement could have been demonstrated.

Chumbley argues that since there is no specified culpable mental state in R.C. 4301.69(A), the state must prove recklessness in order to sustain a conviction. As listed above, this court and all other appellate courts in this state have repeatedly declined to revisit this issue. Additionally, in light of the diligent, affirmative acts that must be demonstrated in order to establish an affirmative defense under R.C. 4301.639, the legislature could not have intended recklessness as the culpable mental state of R.C. 4301.69. Finally, the facts of the case at bar are distinguishable from those upon which the contrary municipal court decisions are based.

We, therefore, continue to hold that R.C. 4301.69(A) is an offense of strict liability and affirm the judgment of the trial court. We note, however, that even if this court were to apply recklessness as the requisite culpable mental state, Chumbley’s testimony clearly established that she acted recklessly as defined in R.C. 2901.22(C) in committing the offense.

Judgment affirmed.

Shannon, J., concurs. Painter, J., dissents. Raymond E. Shannon, J., retired, of the First Appellate District, sitting by assignment.

1 . State v. Sleppy (1992), 62 Ohio Misc.2d 394, 599 N.E.2d 441; State v. Parker (1994), 66 Ohio Misc.2d 1, 642 N.E.2d 66; State v. McGhee (1984), 12 Ohio Misc.2d 18, 12 OBR 490, 468 N.E.2d 400.