¶1 dissenting.
¶2 Making criminals of those who do not have a criminal intent flies in the face of common sense, fundamental fairness, and the purpose of the criminal law.
¶3 Imposing a standard of “strict liability” for a crime means that a person is guilty of a criminal offense even if the act was unintentional. If there were strict *327 liability for shoplifting, a young mother whose child, without the mother’s knowledge, slipped candy into her purse at the grocery could go to jail.
¶4 I must first take issue with the majority’s recitation of the facts. Chumbley was charged only with selling a pitcher of beer to Boehmer. During this transaction, Boehmer had a “high” stamp, which Chumbley saw and relied on before pouring the beer. The majority mixes in facts from an earlier transaction, where Chumbley allegedly served Boehmer a can of beer before he replaced the “low” stamp on his hand with, a “high” stamp. But Chumbley was not charged under R.C. 4301.69(A) for this earlier transaction. The same goes for the two shots of liquor that Boehmer purchased with the pitcher — they had been drunk before the police could confiscate them.
¶5 Disingenuously, the majority attempts to weave in Chumbley’s conceivably reckless actions that are not the subject of this conviction to distinguish this case from the three published municipal court decisions, Parker, 2 Sleppy 3 and McGhee, 4 which are directly on point. I believe the law still is that one may not be convicted of a crime unless charged. So I will confine my discussion to the facts of the actual case.
¶6 The trial court here found that Chumbley had relied on the red stamp on Boehmer’s hand “as she was trained to do, and she did it in good faith,” and further stated a wish to be free to find the defendant not guilty. The trial judge had the right instinct — that justice requires a not-guilty finding in this case. Meting out criminal records to those acting “in good faith” is repugnant to our system of justice.
¶7 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. 5 The majority ignores this rule and also ignores R.C. 2901.04(A), which provides that criminal statutes are to be strictly construed against the state and liberally construed in favor of the accused. I stand by my former decisions. More recent case law has further persuaded me that they were rightly decided.
¶8 Last year, in State v. McGee 6 (not to be confused with McGhee), the Ohio Supreme Court determined that recklessness was an essential element of the *328 crime of endangering children under R.C. 2919.22(A). 7 Though the statute begins with the ubiquitous “No person … shall” language that many courts, such as those cited by the majority for support, use as evidence that the legislature intended to impose strict liability, the Ohio Supreme Court held that the child-endangering statute does not plainly indicate such an intent. Many courts — and this case provides the perfect example — have grossly overreached by finding that various statutes “plainly” indicate that the legislature intended to impose strict liability. As Judge Hoffman has astutely observed, “I am unaware of any crime that does not contain the ‘No person shall … ’ language.” 8 Courts strain to find that statutes “plainly” indicate that the legislature intended to impose strict liability. But the more the strain, the less the legislature’s intent is plain. If the legislature wishes to impose strict liability, it need only say so.
¶9 I would not protest as loudly if jail time were not a possible penalty for a violation of R.C. 4301.69(A). Strict-liability offenses promulgated to mold behavior through the imposition of small fines have been accepted throughout this country. 9 But I believe that most offenses that carry the possibility of jail time as punishment should include a mens rea requirement, with a minimum requirement of criminal negligence. 10 Certainly, courts should be much more reluctant to subject those of our citizens who do not have a “guilty mind” to jail time than to impose a fine. Because a violator of R.C. 4301.69(A) can receive jail time, this statute should not be a strict-liability crime.
¶10 The majority is indeed correct that precedent in this district favors its position. This district has been consistently wrong for many years, with untold hundreds of innocent and hard-working men and women suffering the consequences. While we could never make up for the decades of mistreatment of our citizens, we should now stop this egregious misapplication of the law.
¶11 The majority decision today means in practice that anyone who works her way through college by working in an establishment that serves alcohol will likely incur a criminal record. This result would be bad enough if the law mandated it, *329 but the law requires exactly the opposite. Criminals enough we have, without creating them wholesale by statutory misinterpretation.
¶12 . State v. Parker (1994), 66 Ohio Misc.2d 1, 642 N.E.2d 66.
¶13 . State v. Sleppy (1992), 62 Ohio Misc.2d 394, 599 N.E.2d 441.
¶14 . State v. McGhee (1984), 12 Ohio Misc.2d 18, 12 OBR 490, 468 N.E.2d 400.
¶16 . State v. McGee (1997), 79 Ohio St.3d 193, 680 N.E.2d 975, syllabus.
¶17 . See, also, State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144, paragraph one of the syllabus (holding recklessness an essential element of endangering children under R.C. 2919.22[B][2]).
¶18 . State v. Wilson (June 13, 1991), Delaware App. No. 90-CA-38, unreported, 1991 WL 115985 (Hoffman, J., dissenting).
¶19 . Sayre, Public Welfare Offenses (1933), 33 Colum.L.Rev. 55 (noting that society's interests outweigh the interests of an individual subjected to a light penalty for violating a strict-liability statute).
¶20 . See State v. Hazelwood (Alaska 1997), 946 P.2d 875, 890 (Compton, C.J., dissenting), citing State v. Rice (Alaska 1981), 626 P.2d 104 (Matthews, J., concurring).