Wednesday, August 18, 1999
Video store owner's conviction overturned
But he is seeking dismissal of charges
BY JANET C. WETZEL
The Cincinnati Enquirer
HAMILTON — Less than two weeks after the owner of a Butler County video store was acquitted on obscenity charges, an appellate court has overturned his 1998 conviction in a similar case.
But the case against Peter Tomaino could be headed to a higher court.
Mr. Tomaino's attorney, H. Louis Sirkin, said Tuesday the 12th District Court of Appeals ruling this week falls short of their expectations because it remands the case back to the Butler County Common Pleas Court for a new trial.
“We feel the court should have reversed and dismissed the case and discharged Mr. Tomaino,” Mr. Sirkin said. “I don't think there was sufficient evidence to support the conviction. We will probably appeal the decision to the Ohio Supreme Court.”
Butler County Prosecutor John Holcomb could not be reached for comment.
On Aug. 6, a Butler County jury acquitted Mr. Tomaino and two store clerks of three counts of pandering obscenity.
The appellate court ruling overturns the August 1998 conviction of Mr. Tomaino, owner of VIP Video in Millville, on a misdemeanor charge for selling a sexually explicit video to an underage boy.
In the written opinion, appellate judges agreed Mr. Tomaino's motion for acquittal,n or for a new trial, should have been granted. But the judges said the court erred in its instructions to the jury rather than in denying the motion.
The 1998 charges against Mr. Tomaino stemmed from the Oct. 14, 1998, sale of four adult videos by store clerk Billy Doan to Mark Fry barger, then 17 and living in Millville. Mark bought the video as part of an undercover operation directed by Sgt. Gary Blankenship of the Butler County Sheriff's Department.
Jurors deliberated six hours to find Mr. Tomaino guilty of disseminating material harmful to a juvenile, a misdemeanor — but not guilty of disseminating obscene material to a juvenile, a felony.
Butler County Common Pleas Judge H.J. Bressler sentenced Mr. Tomaino to six months in jail and fined him $1,000 plus costs. But he suspended the sentence and put him on three years' probation.
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Video store owner's conviction overturned
