1682 & 1683 | Ohio Ct. App. | May 4, 1987
On October 13 and October 18, 1984, Agents Jackie Bozeman *101
and Steve Hasseman of the Ohio Department of Liquor Control were sent to investigate a complaint regarding the presence of gambling machines at a bar owned by defendant-appellant, Ronald J. Oliver, doing business as defendant-appellant, Chaparell Lounge, in Brady Lake, Ohio. At trial, Agent Bozeman testified that, on both of the foregoing dates, he played one of two Castle Video Machines and accumulated points on the devices. Agent Bozeman stated that his winnings on the first occasion amounted to $10 and that he was compensated in the form of a free pizza worth $6.95, and $
On December 13, 1984, appellants Ronald Oliver and Chaparell Lounge were jointly indicted on four counts, namely, possessing criminal tools, gambling — conducting a game of chance, gambling — possessing a gambling device, and operating a gambling house.
Thereafter, appellant Oliver filed numerous pretrial motions, including two motions to suppress evidence and a motion to dismiss counts two, three, and four of the indictment, for failure to comply with the speedy trial requirements of R.C.
Subsequently, on August 13, 1985, appellant Oliver was tried before a jury in the Portage County Court of Common Pleas, with respect to the remaining count of possessing criminal tools. R.C.
On April 11, 1986, appellant Ronald J. Oliver in case No. 1682, and appellant Chaparell Lounge in case No. 1683, timely filed a notice of appeal, advancing the following same assignments of error:
"1. The trial court erred in not granting defendant's motion for a directed verdict of acquittal because the state failed to prove that the defendant was a permit holder from the Department of Liquor Control.
"2. Ohio Revised Code Section
"3. The trial court erred in not granting the defendant's motion for a directed verdict because the state's evidence was insufficient as a matter of law to sustain a conviction.
"4. The trial court committed error prejudicial to the defendant by not granting defendant's pretrial motion to dismiss the possessing criminal tools charge on the grounds that it was unconstitutional and violated rules of statutory construction.
"5. The defendant was placed in double jeopardy in violation of the
Appellant Oliver's first assignment of error contends that the trial court erred in not granting appellant's motion for a directed verdict, alleging that the state failed to establish that appellant Oliver was the liquor permit holder. In support of his argument, appellant relies on this court's decision in State v. Evans *102 (May 17, 1985), Portage App. No. 1437, unreported.
In the first instance, Evans, supra, involved a pretrial motion to suppress evidence of video gambling machines, based on a warrantless search of the alleged liquor permit holder's premises. While the record in this action demonstrates that appellant filed a motion to suppress on the same ground as inEvans, supra, the trial court overruled the motion. Here, however, the discussion is addressed to appellant's motion for a directed verdict.
Further, in Evans, supra, this court upheld the trial court's decision granting the motion to suppress, concluding that:
"However, the prosecution did not sustain its burden of proof as to the search of the premises involved in the above-captioned cause. The prosecution, at the suppression hearing, offered no evidence. Counsel for appellees and the prosecution stipulated certain evidence. However, no evidence was stipulated as to the events that occurred on the permit holder's premises when the liquor agents visited the premises nor was there any stipulation as to what was seized by the agents other than the stipulation `* * * agents came back without proper order of the court, without any warrant, and seized these machines.' Most importantly, there was no stipulation, nor evidence offered, that the premises had a liquor permit." Id. at 3-4.
In the case sub judice, while a hearing was conducted on appellant's motion to suppress at which time the state advanced that Agents Bozeman and Hasseman offered testimony on the matter, the record does not contain a transcript of the subject hearing. Consequently, this court has no choice but to presume regularity in the lower court proceedings pertaining to the suppression hearing as it bears on appellant's first assignment of error.
Further, the transcript of the trial proceedings clearly shows that Agent Bozeman testified that appellant Oliver was the liquor permit holder for the establishment in question. Appellant does not cite this court to any authority for the proposition that the permit status of any given liquor establishment can only be proved by the introduction in evidence of the permit itself, or a properly authenticated copy thereof. We are not mindful of such requirement. The testimony of Agent Bozeman was sufficiently competent to establish this fact in evidence.
Thus, this case is factually distinguishable from Evans,supra, where there was no evidence as to the permit or its ownership or licensing status.
Since appellant has failed to establish his argument in this assignment, it is found to be without merit.
Appellants' second and fourth assignments of error involve the same issue and will thus be addressed in a consolidated manner. In these assignments, appellants challenge the trial court's refusal to dismiss the possession of criminal tools count, R.C.
R.C.
"(A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally.
"(B) Each of the following constitutes prima-facie evidence of criminal purpose:
"(1) Possession or control of any dangerous ordnance, or the materials or parts for making dangerous ordnance, materials, or parts are intended for legitimate use;
"(2) Possession or control of any substance, device, instrument, or *103 article designed or specially adapted for criminal use;
"(3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use.
"* * *"
In State v. Anderson (Apr. 6, 1982), Franklin App. No. 81AP-799, unreported, the court disposed of the same argument which appellants now raise, as follows:
"Finally, defendant contends that R.C.
"* * *
"Manifestly, the language of the foregoing statute is readily understandable. Moreover, the statutes in this case do not conflict pursuant to R.C.
But, see, State v. Hribar (Mar. 29, 1985), Jefferson C.P. No. 85-CV-9, unreported.
Where the question of a statute's constitutionality is fairly debatable, courts may not substitute their judgment for that of the legislature. State v. Bowman (1969),
Therefore, it is this court's opinion that a party has adequate notice under R.C.
Appellants also argue that the application of R.C.
With respect to this contention of appellants, we are guided by logic and the holding in State v. Miles (1983),
"Where two statutes proscribe the same criminal conduct, in the absence of proof that the prosecution is based upon an impermissible criterion such as race, religion, or other arbitrary classification, a defendant may be charged and convicted under that statute providing the greater penalty." Id. at syllabus.
We conclude that the second and fourth assignments of error are without merit.
In his third assignment of error, appellant Oliver argues that the trial court erred in not granting his motion for a *104 directed verdict, contending that the state's evidence was insufficient as a matter of law to sustain a conviction for possessing criminal tools.
In order to obtain a conviction for possession of criminal tools, the state must prove possession or control of devices or articles with purpose to use them criminally. State v. Stover
(1982),
With respect to the element of possession or control, the transcript establishes that Agent Bozeman testified at trial that appellant Oliver was the liquor permit holder of appellant Chaparell Lounge. Further, Agent Hasseman testified that when he asked appellant Oliver who owned the subject machines, appellant Oliver admitted that he was the owner.
With regard to the second element, namely, purpose to use the device or article in a criminal manner, the record demonstrates the state established that appellant possessed the two Castle Video Machines for gambling.
R.C.
"(A) No person shall:
"* * *
"(2) Establish, promote, or operate, or knowingly engage in conduct that facilitates any scheme or game of chance conducted for profit;
"* * *"
In State v. Moose Club No. 1234 (1985),
At trial, Agents Bozeman and Hasseman testified that they played the video machines on two occasions, by virtue of placing quarters in them. Agent Bozeman stated that on his first visit to the bar in question, he observed a woman playing one of the machines. Further, Agent Hasseman testified that he did not accumulate any points on the machine, resulting in a loss of $2. Such testimony unequivocally established that the Castle Video Machines were, in fact, being operated for profit.
As demonstrated by the foregoing, the state introduced sufficient evidence to sustain appellant Oliver's conviction for possessing criminal tools, rendering his third assignment of error without merit.
Appellants' final assignment of error advances that the state violated the double jeopardy provisions of the Ohio and United States Constitutions, by virtue of indicting appellants Oliver and Chaparell Lounge for the same offense. However, the record is devoid of any evidence that appellants raised this issue at the trial court level. It is well-established that the failure to raise an issue at the time of trial constitutes a waiver of the alleged error on appeal. Kalish v. Trans World Airlines (1977),
The judgment of the trial court is affirmed.
Judgment affirmed.
COOK and CHRISTLEY, JJ., concur.