494 N.E.2d 1389 | Ohio Ct. App. | 1985
On September 26, 1983, appellant, Moose Club No. 1234, was charged with gambling (R.C.
At trial, the evidence was to the effect that an agent of the Ohio Department of Liquor Control, working undercover, entered appellant's premises and played a "Castle" electronic video machine which the agent testified was similar to a "Draw Poker" machine. The agent testified he inserted $10 worth of quarters into the machine, played it until he built up sixty points, after which he was paid $15 by the barmaid on duty.
Appellant was found guilty on both charges and fined on each charge.
Appellant has appealed the judgment of the trial court and has filed the following two assignments of error:
"1. The trial court erred to the prejudice of defendant-appellant in overruling its motion to dismiss prior to and at the close of the state's case in chief.
"2. The essential element of `profit,' required to be proven beyond a reasonable doubt under O.R.C. §
The assigned errors are without merit.
Appellant first contends that the court erred in overruling its motion to dismiss. It argues R.C.
Appellant reasons that R.C.
A search of the record in the instant appeal does not produce a judgment entry by the court on appellant's motion to dismiss. The record reflects the court orally overruled the motion on the day of trial but did not reduce it to a judgment entry.
However, assuming, arguendo, that the constitutional issue is properly before this court, the record contains no *19
argument by appellant as to unconstitutionality or a finding by the court that the statutes are constitutional. Despite this lack of a record, we conclude appellant's contention in this court is without merit. In Mills-Jennings, Inc. v. Dept. of LiquorControl (1982),
We conclude R.C.
Appellant next contends that the state did not prove that it operated the machines "for profit," an element of both of the instant charges.
R.C.
"(E) `Scheme or game of chance conducted for profit' means any scheme or game of chance designed to produce income for the person who conducts or operates the scheme or game of chance, but does not include a charitable bingo game."
In the instant cause, there was evidence that the Castle electronic video machine, a game of chance, operated on appellant's premises, was designed to produce income for appellant. Appellant permitted the machines to be played on its premises, made change in the form of quarters for those who needed them to play the machines, paid a cash prize to those who achieved a certain number of points on the machines, and the proceeds from those playing the machines were divided with the owner of the machines after deducting $25 for the owner for a "maintenance fee."
We conclude the state proved the element of "for profit" as to both offenses. We affirm the judgment of the trial court.
Judgment affirmed.
DAHLING, P.J., and FORD, J., concur. *20