COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68611 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ABBOUD, INC. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION NOVEMBER 16, 1995 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 307307 JUDGMENT Reversed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES R. WILLIS, ESQ. Cuyahoga County Prosecutor Courthouse Square Building FRANK C. GASPER, Assistant Suite 350 Prosecuting Attorney 310 Lakeside Avenue, N.W. JOHN W. MONROE, Assistant Cleveland, Ohio 44113 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Abboud, Inc. appeals from its conviction for negligently allowing its employees to traffic in food stamps in violation of R.C. 2913.46(B)(2). Defendant contends that the jury's verdict was against the manifest weight of the evidence, contrary to law and not supported by sufficient evidence to satisfy due process requirements. We find merit to the appeal and reverse. During the closing months of 1993, the Cleveland Police Department, the Federal Bureau of Investigation, the United States Secret Service and the United States Department of Agriculture conducted a massive investigation into the illegal use and trafficking of food stamps in the Cleveland area. The charges in the instant case arose out of two episodes which led to the indictment of two clerks at defendant's store, Fayez Abboud and Elmostafa Benchaou. At trial, undercover detective Helen Parries testified that she entered Abboud's Stop-N-Go in North Randall on November 6, 1993. She identified Fayez Abboud in the courtroom as someone she had seen previously in the store operating the cash register. She approached Elmostafa Benchaou to attempt to exchange $300 worth of food stamps for cash. Benchaou then spoke to Fayez Abboud who gave Detective Parries $225 cash for $300 worth of food stamps. Detective Parries bought some items and gave her supervisor, Detective Brady, $220. - 3 - Detective Parries testified that she returned to the same Abboud store on November 8 with another undercover detective, Sharon Dickerson, who was posing as Parries' cousin. Detective Parries stated that she and Dickerson approached Fayez Abboud who was standing in the aisle of the store. Dickerson then gave Abboud $300 worth of food stamps and Abboud returned from the store's office with $230 cash. Detective Parries identified both Benchaou and Abboud in photos presented to her on December 3, 1993. Detective Dickerson testified and corroborated the testimony of Detective Parries about the November 8, 1993 episode. She identified defendant, Fayez Abboud, in the courtroom as the employee who gave her the cash for food stamps. She spent $6 at the counter and turned over a total of $224 to her supervisor, Detective Brady. She stated that she did not know in what capacity Fayez Abboud worked at the store, but that he was definitely not a customer. She saw him sitting behind the counter, but did not recall him using the cash register. Secret Service Special Agent Tim Greenhalgh testified to his role in the operation and stated that he maintained some of the evidence in this case, specifically the $224 cash received in the November 8 exchange. William Krauss, a 29 year veteran of the Department of Agriculture, testified that Abboud, Inc. did have a food stamp license. The license application was made by Malek Abboud, the treasurer of the company and listed Elie Abboud as the president. - 4 - Ms. Laurice Assaad, a former employee of the Abboud organization for eight years, testified that: Fayez Abboud was the boss at the North Randall store when she first started working there; that Fayez Abboud was the owner; but later, that she did not know who owned the store, "maybe him or his son"; that Fayez spoke little English; that the whole family ran the store; that she was related to the Abboud family; that Elie Abboud hired her; that she refused to cash food stamps when she worked there as she had a previous misdemeanor conviction for food stamp fraud; that she was at the store during the December 1993 raid; that Elie Abboud fired her two days later; and that she was angry at the Abboud family for firing her. All the State's witnesses were vigorously cross-examined by counsel for the individual and corporate defendants. After the State rested, the trial judge overruled motions for acquittal. In the defendant's case-in-chief, they called Cleveland Police Department Commander Joseph Sadie to the stand. Sadie testified that the Abbouds had, in the past, made complaints of illegal trafficking of food stamps regarding their other stores to him and sought the help of the police in suppressing such activities. The Abbouds also called their employees, Kendall Hickson and Guiomar Gance, who testified that they had never seen any food stamp trafficking at the Abboud store. They also testified that they considered Michel Abboud to be their boss and that it was - 5 - Michel who ran the store. They testified that Fayez did not do much at the store beyond greeting customers and making coffee. North Randall City Councilman Shelton Richardson testified for defendants that Fayez Abboud does not speak English. North Randall Police Detective Harry Rose also testified for the Abbouds. He stated that he knew the Abboud family well. Michel had called him several times regarding check forgeries and harassment of customers by vagrants. Michel also consulted him regarding installing a hidden camera to monitor employee theft. Hamdi Quasem testified that he had been the interpreter at Fayez Abboud's immigration hearing; and the older Abboud could not speak English. Detective James Brady also testified that he, at one time, had received a telephone call from Elie Abboud complaining of food stamp trafficking in the City of Cleveland. Elie showed the detective several stores and food stamp issuing centers where the trafficking was occurring. Some of the issuing centers were owned by Abboud, Inc. Elie Abboud testified that: Abboud, Inc. owned five grocery stores and several issuing centers where people could pick up food stamps; that he and his brother, Malek, were the shareholders of the corporation; that his brother, Michel, was the manager of the North Randall Stop-N-Go; that his father, Fayez, was retired and liked to come to the store to help; and that his father was not on the payroll and was illiterate and could not speak English. - 6 - Elie also testified that he had contacted Detective Brady regarding problems his customers were having at his food stamp issuing centers. The customers were being approached by people with offers to buy their food stamps. He said that he showed the detectives several of the problem stores. Also, on the advice of the Welfare Department, he placed signs in all the stores stating, "Food Stamp Trafficking is illegal. Any food stamp traffickers will be prosecuted to the full extent of the law." The signs also had phone numbers of the authorities to be contacted. Elie stated that he did not think they had a food stamp problem at the North Randall Stop-N-Go, as there was no issuing center there. He did have problems with check forgeries however and also had installed a hidden camera to monitor employee theft. The State called Mark Murray as a rebuttal witness. Mr. Murray works at the United States Naturalization and Immigration Service and had tested the defendant, Fayez Abboud, on May 16, 1994. He identified Fayez Abboud in the courtroom and stated his notes indicated that there had not been an interpreter at Abboud's interview; that he saw Fayez Abboud running the cash register at an Abboud store on or about December 18, 1994 and that Abboud did, in fact, say "wait a minute" to a customer and charge Murray correctly for a six-pack of beer. The jury found Abboud, Inc. guilty of the two counts of Illegal Use of Food Stamps and Fayez Abboud guilty of two counts of Food Stamp Trafficking, less than $500. Benchaou was found not - 7 - guilty. Abboud, Inc. was fined $1,500 and this appeal ensued. Fayez Abboud appealed his conviction separately. (Appeal No. 68610). We will address the defendant's assignments of error together as they both hinge on the character of the evidence presented. I. THE VERDICT FINDING THE APPELLANT, ABBOUD, INC., GUILTY AS CHARGED IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS CONTRARY TO LAW. II. THE VERDICTS FINDING THE APPELLANT, ABBOUD, INC., GUILTY AS CHARGED IN THE INDICTMENT IS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO SATISFY THE REQUIREMENTS OF DUE PROCESS. Defendant corporation was charged with violating R.C. 2913.46(B)(2) which provides: (B) No organization, as defined in division (D) of section 2901.23 of the Revised Code shall: * * * (2) Negligently allow an employee to sell, transfer or trade items or services, the purchase of which is prohibited by the "Food Stamp Act of 1977" 91 Stat. 958, 7 U.S.C. 2011, as amended in exchange for food stamp coupons. R.C. 2901.23, which defines the criminal liability of an organization, states as follows: (A) An organization may be convicted of an offense under any of the following circumstances: * * * (2) A purpose to impose organizational liability plainly appears in the section defining the offense, and the offense is committed by an officer, agent, or employee of the organization acting in its behalf and - 8 - within the scope of his office or employment, ***. * * * (4) If, acting with the kind of culpability otherwise required for the commission of the offense, its commission was authorized, requested, commanded, tolerated, or performed by the board of directors, trustees, partners, or by a high managerial officer, agent, or employee acting in behalf of the organization and within the scope of his office or employment. * * * (C) In a prosecution of an organization for an offense other than one for which strict liability is imposed, it is a defense that the high managerial officer, agent, or employee having supervisory responsibility over the subject matter of the offense exercised due diligence to prevent its commission. This defense is not available if it plainly appears inconsistent with the purpose of the section defining the offense. The issue on this appeal is whether there was sufficient evidence to establish beyond a reasonable doubt the corporate crime of "negligently" allowing an employee to sell, transfer, or exchange items or services in violation of the Food Stamp Act. R.C. 2901.22(D), respecting culpable mental states, defines criminal negligence as follows: (D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist. - 9 - This section requires a higher degree of negligence than ordinary negligence, in that it requires a substantial lack of due care. Middletown v. Campbell (1990), 69 Ohio App.3d 411, 417; State v. Ovens (1974), 44 Ohio App.2d 428, 431; State v. Allied Pest Control (1986), 33 Ohio App.3d 134, 137. Pursuant to OJI Section 409.31, "Substantial" is defined as follows: You will observe that the lapse or failure to use due care must be substantial. The lapse must be a material departure from the standard of due care. If you find that the defendant failed to use due care, you must determine if his failure was a substantial (lapse) (departure) from the standard of due care. See, also, State v. Ovens at 431. We are mindful that whether a "substantial lapse" of due care for purposes of criminal conduct has occurred is a matter for the trier of fact. Middletown v. Campbell (1990), 69 Ohio App.3d 411, 418; State v. Newton (1985), 23 Ohio App.3d 184, 186; State v. Ovens (1974), 44 Ohio App.2d 428, 432. However, based on the record before us, the jury's implicit finding of a "substantial lapse" from due care by the corporate defendant is not supported by the record. There was no evidence in the record that the corporate defendant was criminally negligent in failing to avoid or perceive the risk of food stamp trafficking at the Stop-N-Go. Although defendant was aware of the risk of trafficking at its issuing centers where its customers picked up their food stamps, no such - 10 - issuing center was on the premises of the North Randall Stop-N-Go. There was also no evidence that Fayez Abboud was a risk in handling food stamp coupons, as there was no evidence he had a prior conviction for food stamp trafficking or had engaged in that conduct previously. Although there was evidence that Fayez performed minor chores at the store, there was no evidence he was a paid employee or an officer or director of the defendant. Nor was there evidence that the responsible corporate officers, Malek or Elie Abboud, knew of their father's food stamp activities or were present when they occurred. The record reveals that the corporation was diligent in contacting the police to discourage food stamp trafficking. It posted signs at all its locations stating that trafficking in food stamps was illegal. Other Stop-N-Go employees testified that they never saw any illegal food stamp trafficking at North Randall. The president of the corporation, Elie Abboud, never thought there existed a trafficking problem at the North Randall Stop-N-Go, as it did not have an issuing center. Given this state of the evidence, we do not find adequate support in the record for a finding of a "substantial lapse" in care by the corporation in failing to avoid the risk of food stamp trafficking occurring at the store. Even viewing the evidence under the requisite standard "in the light most favorable to the prosecution, [to determine if] any rational trier of fact could have found the essential elements of the crime proven beyond a - 11 - reasonable doubt," State v. Waddy (1992), 63 Ohio St.3d 424, 430, we find that the evidence was insufficient to support a conviction against the corporate defendant under R.C. 2913.46(B)(2). To impose criminal liability on the corporation on the evidence presented would amount to a strict criminal liability in the absence of proof of fault. We are confident that the legislature imposed no such extraordinary standard. Defendant's Assignments of Error I and II are sustained. Judgment reversed. - 12 - It is ordered that appellant recover of appellee its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, P.J., and NAHRA, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .