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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
-- Operating a gambling house
-- Public gaming
State v. Standen
, 173 Ohio App. 3d 324,
– On suspicion of illegal gambling, the bar the defendant operated was raided and $46,485 was seized from a safe. He initially obtained an order releasing some of the money, but the state appealed and won. After he pleaded guilty to the gambling charge, the state sought forfeiture of the money. It dropped a claim under
because it could not prove the money was contraband. The court properly denied an alternative claim under
, which claimed the currency had been used in the commission of a criminal offense. The defendant had a possessory interest in the money and had done all he needed to assert that interest by previously seeking its return. Unable to prove a connection between the money and the crimes the defendant was convicted of, the state for the first time on appeal claimed it was being used in connection with money laundering. The suggestion that the money may have been hidden from the defendant‘s wife during a divorce is not enough to establish money laundering.
State v. Thompson
, Fairfield App. No. 03CA87,
-- Money seized during raid on gambling premises was improperly ordered forfeited during sentencing on a misdemeanor charge of operating a gambling house. Forfeiture requires a petition and proceedings in accordance with
unless it has been made part of a plea bargain.
State v. George
, Hamilton App. No. 030216,
-- Tip tickets ostensibly sold to benefit a charity were the basis for convictions for gambling, operating a gambling house, money laundering, conspiracy and racketeering. At sentencing the prosecutor claimed some of the proceeds ultimately went to HAMAS. (1) While the case was pending, state agents twice searched the defendant's house seizing documents relating to the case and preparation for trial. Motion to dismiss based on seizure of materials within the attorney client privilege is premature since documents precise location is uncertain, as is the prosecutor's access to privileged information. (2) Reversed for failure to grant a continuance to locate these trial preparation materials. Even if the raids were the result of continued illegal activity, agents did not have the right to seize constitutionally privileged materials. Defense counsel were not require to accept offer of return as they would then have been subject to claims "they phonied up the contents" during a hearing on the motion to dismiss. (3) Except for one count, the poorly drafted indictment was barely sufficient. "It is also clear that George's trial counsel did not need any help getting confused." Failure to identify specific gambling house premises rendered one count insufficient. (4) 25-year sentence probably would not pass appellate review. Failure to permit continuance to rebut HAMAS claim was reversible error. (5) Gratuitous comments by defense counsel and the trial court's lack of patience made the case unnecessarily difficult.
State v. V.F.W. Post 431
, Montgomery App. No. 19892,
-- (1) Post failed to establish the affirmative defense that it received an IRS determination letter, the proceeds were appropriately donated, and the scheme of chance wasn't conducted with ten hours of a bingo game conducted for amusement purposes. (2) No contest plea waived the right to present an affirmative defense. (3)
et. seq. are not rendered vague by incorporating reference to the Internal Revenue Code, nor is such reference an improper delegation of the state's legislative power. (4) Differential treatment of different sorts of charitable institutions does not violate the Equal Protection Clause, nor does it violate separation of church and state or freedom of association. (5) Lawful entry to premises was made by member law enforcement officer who obtained information leading to issuance of a warrant.
Garono v. State
(1988), 37 Ohio St. 3d 171 -- The General Assembly appropriately determined poker, and thus poker machines, to be a game of chance under
, even though an element of skill may be involved. Also see
Stillmaker v. Department of Liquor Control
(1969), 18 Ohio St. 2d 200 discussing pinball machines combining amusement and chance. (2) In order for possession of a gambling device to be illegal, it must be used or intended for use in an illegal manner. Possession per se is not illegal.
State v. Volpe
(1988), 38 Ohio St. 3d 191 -- Paragraph two of the syllabus: "Because
clearly was enacted to reach criminal possession and control of a gambling device and such conduct is classified as a misdemeanor of the first degree under
, a general statute prohibiting possession and control of criminal tools and classifying such conduct as a fourth degree felony, cannot be used to charge and convict a person for possession and control of a gambling device."
State v. Posey
(1988), 40 Ohio St. 3d 420 -- Paragraph one of the syllabus: "A nonprofit organization may be convicted of gambling for profit under
State v. Stow Veterans Association
(1987), 35 Ohio App. 3d 45.
State v. Wac
(1981), 68 Ohio St. 2d 84 -- Strict liability applies to the offenses of operating a gambling house and bookmaking.
Lorain v. Tomasic
(1979), 59 Ohio St. 2d 1 -- If the payout in a bingo game is lawful under a generally applicable statute, the statute prevails over a more restrictive municipal ordinance making a payout over a lesser ceiling unlawful.
State, ex rel Gabalac, c. New Universal Congregation of Living Souls
(1977), 55 Ohio App. 2d 96 -- While the Ohio Constitution bans lotteries, other that the state lottery, gambling is a broader term, permitting the legislature to allow certain forms of gambling.
State v. Fuchs
(1993), 92 Ohio App. 3d 15 -- Bar owner sold game of chance tickets ("tip tickets"), forwarded all proceeds to charitable foundation, and received 25% of proceeds as "rent." Properly held to be a violation of
which is a strict liability offense. The 25% was in substance a commission and not reimbursement for a reasonable expense. Also see
Robb v. Ohio Department of Liquor Control
(1994), 95 Ohio App. 3d 379.
State v. Horan
(1993), 92 Ohio App. 3d 78 -- (1) Bar owner was prosecuted for recklessly allowing premises to be used for gambling. In view of investigation undertaken before she agreed to sell "tip tickets," the evidence was insufficient to establish that she acted recklessly. (2) Employee who made actual sale of tip tickets, but who had no control over whether the tavern sold tickets, and who did not benefit from the sale, could not be convicted of operating a gambling house pursuant to
State v. Brown
(1996), 116 Ohio App. 3d 389 -- (1) Extra playing time on video slot machine constituted something of value for purposes of operating a gambling house conviction. (2) Mere possession of inoperable video slot machine does not support conviction.
State v. Baker
(1993), 87 Ohio App. 3d 186 -- The testimony of a single officer may establish consent for entry to premises, unless discounted as unbelievable by the court. Case remanded for a hearing on whether state should disclose identity of the VFW member who admitted officer to the premises where gambling was taking place. Issue was whether case fell under
State v. Posey
(1988), 40 Ohio St. 3d 420 where voluntary consent was found or
State v. Pi Kappa Alpha Fraternity
(1986), 23 Ohio St. 3d 141 where deception was used to gain entry.
State v. Rich
(1993), 87 Ohio App. 3d 194 -- Predicate offenses alleged in a RICO indictment were misdemeanor gambling violations under Ohio law, but the prosecution claimed they could be used as the basis for a racketeering prosecution as the same acts would have constituted felonies under federal law. Indictment was properly dismissed as the violation must be a felony under Ohio law, looking to the substance of the offense and not merely the penalty applicable under federal law.
State v. Argea
(1989), 60 Ohio Misc. 2d 11 -- Headnote: "Money in the pockets of persons who are either playing poker or are in the proximity of a poker game may not be confiscated by the state and forfeited pursuant to
unless the state proves by a preponderance of the evidence (1) that the money was being used in the commission of an offense, or (2) that the nature of the money or the circumstances of any of the defendants were such as to conclude that possession of the money was illegal."
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
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