2004 Ohio 3566 | Ohio Ct. App. | 2004
{¶ 2} VFW contends that R.C.
{¶ 3} VFW contends that R.C.
{¶ 4} VFW then contends that R.C.
{¶ 5} VFW contends that the trial court erred in denying its motion to suppress, because the two warrantless entries onto the VFW premises, used to gather information to obtain a search warrant, were unlawful, thereby vitiating the search warrant obtained subsequent to the illegal entries. We conclude that VFW freely and voluntarily consented to both entries by the law enforcement officer onto its premises, and therefore, the two entries were not unlawful.
{¶ 6} VFW contends that its sentence is void, because it was placed on probation for five years and the fine imposed was not suspended. VFW argues that if the fine is not suspended, there is no effectual purpose for probation and the sentence is void. Because the trial court did suspend $6,000 of the $7,500 fine, upon the condition of no future violations of the gambling law, VFW is mistaken and this argument is without merit.
{¶ 7} VFW contends that the trial court judge erred in failing to recuse herself prior to ruling on VFW's motion to dismiss, motion to suppress, and motion for the disclosure of a confidential informant. VFW contends that the trial court judge's denial of the motions, after holding defense counsel in contempt, demonstrated bias and prejudice towards VFW and denied VFW due process of law. We conclude that we are without authority to pass upon disqualification of a common pleas court judge or to void the judgment of the trial court upon that basis, because only the Chief Justice of the Ohio Supreme Court or his designee may disqualify a court of common pleas judge pursuant to Article
{¶ 8} Accordingly, the judgment of the trial court is affirmed.
{¶ 10} VFW filed a motion to dismiss, a motion to suppress, and a motion for the disclosure of a confidential informant referenced in an affidavit used to establish probable cause for a search warrant to search VFW. A hearing was conducted before the Honorable Mary E. Donovan on the motion to suppress. During the suppression hearing, Judge Donovan held defense counsel in criminal contempt of court, and imposed a $500 fine, for defense counsel's conduct in interrupting the prosecutor, expressing disagreement with the trial judge's ruling on one occasion, and requesting that the trial judge hold her voice down after she spoke loudly when she admonished counsel to stop bickering.1 Thereafter, the trial court denied the motion to suppress, finding that probable cause existed for the search warrant based upon the affidavit. The trial court also denied VFW's request for disclosure of the confidential informant. Finally, the trial court denied VFW's motion to dismiss.
{¶ 11} This case was then transferred to the Honorable Michael L. Tucker. VFW entered a plea of no contest to the one count of Gambling. Judge Tucker found a factual basis to support the charge and plea, accepted the plea of no contest, and found VFW guilty. Judge Tucker sentenced VFW to community control sanctions, for a period not to exceed five years, and ordered VFW to pay court costs, a supervision fee, and a fine of $7,500, $6,000 of which was suspended upon the condition of no future violations of the gambling law. From its conviction and sentence, VFW appeals.
{¶ 13} "The facts of the case do not present a basis for any prosecution of the appellant under the provisions of R.C.
{¶ 14} "Any reference to a provision of the internal revneue [sic] code to supply the definition of an element of an offense is prohibited[.]
{¶ 15} "The trial court erred in failing to rule R.C.
{¶ 16} "The trial court erred when it failed to enter a finding of not guilty to the no contest plea to one count of felony gambling (R.C.
{¶ 17} Because VFW presents similar and related arguments under its first, second, third, and sixth assignments of error, we address them together.
{¶ 18} VFW was convicted upon one count of Gambling, in violation of R.C.
{¶ 19} VFW first contends that its conviction for Gambling cannot stand, because VFW is a charitable organization, and R.C.
{¶ 20} R.C.
{¶ 21} "(D) This section does not apply to any of the following:
{¶ 22} "(1) Schemes of chance conducted by a charitable organization that is, and has received from the internal revenue service a determination letter that is currently in effect stating that the organization is, exempt from federal income taxation under subsection 501(a) and described in subsection 501(c)(3) of the Internal Revenue Code, provided that all of the money or assets received from the scheme of chance after deduction only of prizes paid out during the conduct of the scheme of chance are used by, or given, donated, or otherwise transferred to, any organization that is described in subsection 509(a)(1), 509(a)(2), or 509(a)(3) of the Internal Revenue Code and is either a governmental unit or an organization that is tax exempt under subsection 501(a) and described in subsection 501(c)(3) of the Internal Revenue Code, and provided that the scheme of chance is not conducted during, or within ten hours of, a bingo game conducted for amusement purposes only pursuant to section
{¶ 23} R.C.
{¶ 24} Although it appears to be undisputed that VFW is, in fact, exempt from federal income taxation under subsection 501(c)(19) of the Internal Revenue Code, the record before us does not include a determination letter, currently in effect, from the IRS stating that VFW is exempt. Thus, there is no showing the VFW is a charitable organization as defined in R.C.
{¶ 25} R.C.
{¶ 26} VFW argues that the facts of this case do not constitute a violation of R.C.
{¶ 27} When VFW entered a plea of no contest in this case, it admitted that the facts alleged in the indictment were true. "[T]he defendant who pleads no contest waives the right to present additional affirmative factual allegations to prove that he is not guilty of the charged offense. By pleading no contest, the defendant waives his right to present an affirmative defense." Stern v. Mascio,
{¶ 28} We conclude that VFW not only failed to meet the requirements necessary to establish the affirmative defense provided in the charitable organization exception under R.C.
{¶ 29} VFW contends that R.C.
{¶ 30} "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute `abut(s) upon sensitive areas of basic First Amendment freedoms,' it `operates to inhibit the exercise of (those) freedoms.' Uncertain meanings inevitably lead citizens to `steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked.'" Grayned v. City of Rockford (1972),
As stated above, R.C.
{¶ 31} We conclude that VFW's contentions are without merit. To meet the charitable organization exception to R.C.
{¶ 32} We conclude that the references to the Internal Revenue Code within R.C.
{¶ 33} VFW also argues that where the Internal Revenue Code is used to define an element of an offense, it must be filed with the Secretary of State, Director of Legislative Service and Joint Committee on Agency Roll Review. VFW argues that failure to do so renders the statute void.
{¶ 34} The crime in this case, Gambling, is clearly defined in R.C.
{¶ 35} We conclude that R.C.
{¶ 36} VFW contends that R.C.
{¶ 37} In Posey, the appellants, Fraternal Order of Eagles, a 501(c)(8) non-profit fraternal organization, contended that R.C.
{¶ 38} We conclude that VFW's equal protection argument is without merit. The Ohio Supreme Court found that the General Assembly's choice to only include 501(c)(3) organizations within the R.C.
{¶ 39} VFW then contends that R.C.
{¶ 40} VFW contends that R.C.
{¶ 41} VFW contends that R.C.
{¶ 42} We reject VFW's arguments and agree with the trial court that "one can utilize [one's] right to assemble and [one's] right to expression without gambling." As stated above, R.C.
{¶ 44} "The trial court committed error in failing to suppress all evidence in the case before it[.]"
{¶ 45} VFW contends that the trial court erred in denying its motion to suppress, because the two warrantless entries onto the VFW premises, used to gather information to obtain a search warrant, were unlawful, thereby vitiating the search warrant obtained subsequent to the illegal entries. VFW also contends that the trial court erred in denying its motion to disclose the identity of the confidential informant. VFW alleges that the confidential informant, a law enforcement officer and VFW member, was also an undercover liquor agent. VFW argues that the two entries were unlawful, because a liquor agent may perform an administrative search, but may not perform a search for purposes of obtaining evidence of general criminality with the intent to charge the permittee with a violation contained in R.C. Title 29. VFW argues that the two entries were unlawful, because there was no consent for entry.
{¶ 46} "`[A] search conducted without a warrant issued upon probable cause is `per se unreasonable * * * subject only to a few specifically established and well-delineated exceptions.' Schneckloth v. Bustamonte
(1973),
{¶ 47} To establish consent as an exception to the warrant requirement, the State must show that consent was freely and voluntarily given. Id. The Ohio Supreme Court has held that "when an individual gives consent to another to enter a private area wherein illegal activities are being conducted, the consent does not lose its status of being freely and voluntarily given merely because it would not have been given but for the fact that the other person failed to identify himself as a police officer or agent." Id. at 429.
{¶ 48} It is undisputed that the law enforcement officer made two entries into the VFW, without a warrant, and information gathered from those two entries was used to obtain a search warrant. It is also undisputed that the law enforcement officer was a member of the VFW and entered the VFW through this membership. VFW consented to the law enforcement officer's entry onto its premises as a VFW member. The fact that the law enforcement officer did not identify himself as a police officer or agent does not cause VFW's consent to lose its status of being freely and voluntarily given. See Posey, supra. As long as VFW holds itself open to all those who are members, a member is not obliged to anticipate that certain members, police officers, for example, may not be welcome, and identify himself as a police officer before exercising his privilege, as a member, to enter the premises. We conclude that VFW freely and voluntarily consented to both entries by the law enforcement officer onto its premises, and therefore, the two entries were not unlawful.
{¶ 49} Because both of VFW's contentions are based on the same argument, we conclude that the trial court did not err in denying VFW's motion to suppress or in denying VFW's motion to disclose the identity of the confidential informant, for the reasons stated above.
{¶ 50} VFW's fourth assignment of error is overruled.
{¶ 52} "The trial court erred in placing vfw post 431 on probation with the conditions imposed below as an organizational penalty unde [sic] R.C.
{¶ 53} VFW contends that its sentence is void, because it was placed on probation for five years and the fine imposed was not suspended. VFW argues that if the fine is not suspended, there is no effectual purpose for probation, and the sentence is void.
{¶ 54} R.C.
{¶ 55} "(A) Regardless of the penalties provided in sections
{¶ 56} "* * *
{¶ 57} "(7) For a felony of the fifth degree, not more than seventy-five hundred dollars[.]"
{¶ 58} The trial court sentenced VFW to community control sanctions, for a period not to exceed five years, and ordered VFW to pay court costs, a supervision fee, and a fine of $7,500, $6,000 of which was suspended upon the condition of no future violations of the gambling law.
{¶ 59} VFW does not contend that the trial court did not have the authority to suspend the sentence, but argues that it did not do so, making the five-year probation period ineffectual. Because the trial court did suspend $6,000 of the $7,500 fine, upon the condition of no future violations of the gambling law, VFW is mistaken and this argument is without merit.
{¶ 60} VFW also contends that VFW's prior conviction cannot be used in this case to enhance the current charge to a felony, because the trial court failed to determine whether the plea, in the prior case, was properly entered after meaningful colloquy between the trial court and VFW representative at that time.
{¶ 61} Pursuant to Crim.R. 11(B)(2), a no-contest plea is an admission of the truth of the facts alleged in the indictment. The indictment against VFW states, in pertinent part, that "POST 431 VFW, on or about the 8th day of February in the year two thousand and two in the County of Montgomery, aforesaid, and State of Ohio, did establish, promote or operate or knowingly engage in conduct that facilitated any scheme or game of chance conducted for profit, having previously been convicted in the State of Ohio on November 20, 1998, of a gambling offense, to-wit: Operating a Gambling House, in the case of State of Ohio versus VFW Post 431, being Case Number 98 CRB 14579, in the Dayton Municipal court contrary to the form of the statute (in violation of Section
{¶ 62} VFW's fifth assignment of error is overruled.
{¶ 64} "It was error for the original trial court to hold appellant's counsel in contempt, and theeafter [sic] rule upon all pending motions and then transfer the case to another judge for trial. The trial court had a duty to transfer the entire case to the newly assigned judge prior to ruling upon the pending motions in order to avoid inherent prejudice toward the appellant. The transferee court has a duty to review the entire file, certify familiarity, and correct and prior adverse rulings."
{¶ 65} VFW contends that the trial court judge erred in failing to recuse herself prior to ruling on VFW's motion to dismiss, motion to suppress, and motion for the disclosure of the confidential informant. VFW contends that the trial court judge's denial of the motions, after holding defense counsel in contempt, demonstrated bias and prejudice towards VFW and denied VFW due process of law.
{¶ 66} Article
{¶ 67} "(A) If a judge of a municipal or county court allegedly * * * has a bias or prejudice for or against a party to a proceeding pending before the judge or to a party's counsel, or allegedly otherwise is disqualified to preside in a proceeding pending before the judge, any party to the proceeding or the party's counsel may file an affidavit of disqualification with the clerk of the court in which the proceeding is pending.
{¶ 68} "(B) An affidavit of disqualification shall be filed under this section with the clerk of the court in which the proceeding is pending not less than seven calendar days before the day on which the next hearing in the proceeding is scheduled * * *."
{¶ 69} Because only the Chief Justice of the Ohio Supreme Court or his designee may disqualify a court of common pleas judge, we are "without authority to pass upon disqualification or to void the judgment of the trial court upon that basis. Although a judge would be without power to hear and determine a cause after disqualification, his judgment, however erroneous, before disqualification is not void." Beer v. Griffith
(1978),
{¶ 70} VFW's seventh assignment of error is overruled.
Brogan and Young, JJ., concur.
