State v. Mills

2012 Ohio 4387

Opinion

[Cite as State v. Mills, 2012-Ohio-4387.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26310

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE LAWRENCE D. MILLS STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE Nos. 2010CRB3519 2010CRB3520 2010CRB3521 2010CRB3522

DECISION AND JOURNAL ENTRY

Dated: September 26, 2012

DICKINSON, Judge.

INTRODUCTION

{¶1} Lawrence Mills owns a tavern in Sagamore Hills Township. Agents of the Ohio

Department of Public Safety conducted an undercover investigation at the tavern into allegations

that electronic machines were being used to facilitate illegal gambling. Mr. Mills pleaded not

guilty to all charges, and the parties submitted the case to the municipal court on briefs and

stipulated facts. The municipal court convicted Mr. Mills of two counts of complicity to violate

Section 2915.06(A) of the Ohio Revised Code and one count of possession of criminal tools.

Mr. Mills has appealed. This Court reverses because the stipulated facts are not sufficient to

support the convictions. 2

BACKGROUND

{¶2} The Ohio Department of Public Safety charged Mr. Mills in four separate cases in

Stow Municipal Court with charges stemming from an undercover investigation. The stipulated

facts include twenty short paragraphs of information. The relevant facts for our purposes are that

Mr. Mills was arrested after agents played Tic Tac Fruit machines at a bar that Mr. Mills owns.

On two occasions, an undercover agent won multiple “Speedy Cash Fuel Card[s]” worth ten

dollars each. Mr. Mills stipulated that he instructed his employees to pay Speedway fuel cards to

players who won points on the skill-based amusement machines and he knew that more than one

card might be awarded in any given prize because they were awarded based on the total number

of accumulated points. The Speedway fuel cards could be used at Speedway gas stations, but

only to purchase fuel.

{¶3} On August 18, 2010, an agent put $20.00 into one of the machines and won and

lost points before cashing out. On that date, an employee of the bar gave the agent three

Speedway fuel cards. On September 28, 2010, an agent played another Tic Tac Fruit machine in

the bar and received from the bartender two Speedway fuel cards when he cashed out the points

he had accumulated. Two days later, the agents served a search warrant at the tavern and seized

three Tic Tac Fruit machines, two Speedway fuel cards, and approximately $1732 in cash.

{¶4} Mr. Mills pleaded not guilty to three counts of complicity to gambling in violation

of Section 2915.06 of the Ohio Revised Code, one count of possession of criminal tools, and one

count of public gaming. The trial court found Mr. Mills guilty of two counts of complicity to

gambling and possession of criminal tools. It found him not guilty of the public gaming charge

and one count of complicity. Mr. Mills attempted to appeal his convictions, but this Court 3

lacked jurisdiction under State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, ¶ 1. The trial

court later entered judgment, and Mr. Mills has appealed.

COMPLICITY

{¶5} Mr. Mills’ second and third assignments of error are that the trial court incorrectly

found him guilty of two counts of complicity to violate Section 2915.06(A) for instructing his

employees to reward players with Speedway fuel cards. At the time of the offenses, Section

2915.06(A) of the Ohio Revised Code provided that, “[n]o person shall give to another person

any item described in division (BBB)(1), (2), (3), or (4) of section 2915.01 of the Revised Code

in exchange for a noncash prize, toy, or novelty received as a reward for playing or operating a

skill-based amusement machine or for a free or reduced-price game won on a skill-based

amusement machine.” R.C. 2915.06(A), effective Oct. 25, 2007.

Skill-based Amusement Machine

{¶6} The law defined a “[s]kill-based amusement machine” as a “video, digital, or

electronic device that rewards the player . . . only with merchandise prizes or with redeemable

vouchers redeemable only for merchandise prizes[.]” R.C. 2915.01(AAA)(1), effective Oct. 16,

2009. The law required four conditions to be met for such a machine to qualify as a skill-based

amusement machine. First, “[t]he wholesale value of a merchandise prize awarded as a result of

the single play of a machine does not exceed ten dollars[.]” R.C. 2915.01(AAA)(1)(a), effective

Oct. 16, 2009. Second, “[r]edeemable vouchers awarded for any single play of a machine are not

redeemable for a merchandise prize with a wholesale value of more than ten dollars[.]” R.C.

2915.01(AAA)(1)(b), effective Oct. 16, 2009. Third, “[r]edeemable vouchers are not

redeemable for a merchandise prize that has a wholesale value of more than ten dollars times the

fewest number of single plays necessary to accrue the redeemable vouchers required to obtain 4

the prize[.]” R.C. 2915.01(AAA)(1)(c), effective Oct. 16, 2009. And fourth, “[a]ny redeemable

vouchers or merchandise prizes are distributed at the site of the skill-based amusement machine

at the time of play.” R.C. 2915.01(AAA)(1)(d), effective Oct. 16, 2009. The statute further

provided that “[a] device shall not be considered a skill-based amusement machine and shall be

considered a slot machine if it pays cash or [meets any of the conditions listed in the statute].”

R.C. 2915.01(AAA)(2), effective Oct. 16, 2009. Those conditions included, but were not limited

to, circumstances in which “[t]he ability of a player to succeed at the game is impacted by the

number or ratio of prior wins to prior losses of players playing the game[,]” “[a]ny reward of

redeemable vouchers is not based solely on the player achieving the object of the game or the

player’s score[,]” and “[t]he outcome of the game, or the value of the redeemable voucher or

merchandise prize awarded for winning the game, can be controlled by a source other than any

player playing the game.” R.C. 2915.01(AAA)(2)(a), (b), (c), effective Oct. 16, 2009.

Ten-dollar-per-play Prize Limit

{¶7} Mr. Mills has argued in his third assignment of error that the trial court incorrectly

determined that he permitted his employees to award a player multiple ten-dollar Speedway fuel

cards for a single play of the machines. Mr. Mills has argued that the stipulated facts do not

support the implication that the agent accumulated enough points during a single play to receive

more than one Speedway fuel card. Regardless of whether the stipulated facts include evidence

that the agent received more than one ten-dollar Speedway fuel card for a single play, the State

has conceded that the trial court incorrectly considered the ten-dollar-per-play prize limit because

that limit is part of the definition of a “[s]kill-based amusement machine” under Section

2915.01(AAA)(1). The State has acknowledged in its brief that, because it stipulated that the

machines the agent played qualified as skill-based amusement machines under the statute, it, in 5

effect, stipulated that players did not receive more than one ten-dollar reward per play.

Therefore, the State has not challenged Mr. Mills’ argument regarding the ten-dollar prize limit.

Redeemable Voucher

{¶8} Mr. Mills has argued that the stipulated facts indicate that he did not violate the

statute as it existed in the fall of 2010. This is a sufficiency-of-the-evidence argument. Whether

a conviction is supported by sufficient evidence is a question of law that this Court reviews de

novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997); State v. West, 9th Dist. No.

04CA008554, 2005–Ohio–990, ¶ 33. We must determine whether, viewing the evidence in a

light most favorable to the prosecution, it could have convinced the average finder of fact of his

guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, paragraph two of the

syllabus (1991).

{¶9} Under the statute, a “[s]kill-based amusement machine” is a “video, digital, or

electronic device that rewards the player . . . only with merchandise prizes or with redeemable

vouchers redeemable only for merchandise prizes[.]” R.C. 2915.01(AAA)(1), effective Oct. 16,

2009. By stipulating that the machine was a “skill based amusement device[,]” the State, in

effect, agreed that the machine dispensed only “merchandise prizes” or “redeemable vouchers

redeemable only for merchandise prizes[.]” R.C. 2915.01(AAA)(1), effective Oct. 16, 2009.

Under the statute, a “[m]erchandise prize” is “any item of value” that is not included on the list

of prohibited items. R.C. 2915.01(BBB), effective Oct. 16, 2009. At the time of the

investigation, the items specifically enumerated, and therefore prohibited as prizes under Section

2915.06(A), were “(1) [c]ash, gift cards, or any equivalent thereof; (2) [p]lays on games of

chance, state lottery tickets, bingo, or instant bingo; (3) [f]irearms, tobacco, or alcoholic

beverages; or (4) [a] redeemable voucher that is redeemable for any of the items listed in division 6

(BBB)(1), (2), or (3) of this section.” R.C. 2915.01(BBB), effective Oct. 16, 2009. The statute

defined “[r]edeemable voucher” as “any ticket, token, coupon, receipt, or other noncash

representation of value.” R.C. 2915.01(CCC), effective Oct. 16, 2009.

{¶10} Although the parties have framed the argument as whether the Speedway fuel

cards were permissible redeemable vouchers or impermissible gift cards under the statute, that is

not the question presented by the stipulated facts. The machine did not reward the player with

Speedway fuel cards. The stipulated facts provide that the “skill based amusement device” in

this case dispensed a paper ticket indicating a number of accumulated points. Under the

statutory definition of “[s]kill-based amusement machine[,]” the paper ticket dispensed by the

machine had to be either a “merchandise prize” or a “redeemable voucher[ ] redeemable only for

merchandise prizes[.]” R.C. 2915.01(AAA)(1), effective Oct. 16, 2009. Given the statutory

definitions of those terms, the paper ticket more closely resembled a redeemable voucher than a

merchandise prize. Because the State stipulated that any redeemable voucher dispensed by the

machine would be “redeemable only for merchandise prizes[,]” the State, in effect, has stipulated

that the voucher was not redeemable for any item of value, including a gift card, that was

specifically excluded from the statutory definition of “[m]erchandise prize[.]” R.C.

2915.01(AAA)(1), (BBB), effective Oct. 16, 2009. The parties, in effect, have agreed that the

redemption of the redeemable voucher dispensed by the machine met the requirements of the

statute because the State stipulated that it was “redeemable only for [permissible] merchandise

prizes.” See R.C. 2915.01(AAA)(1), effective Oct. 16, 2009.

{¶11} According to the stipulated facts, the agent played the game and received a paper

ticket with a number of accumulated points printed on it, which he redeemed for multiple

Speedway fuel cards. By stipulation, the Speedway fuel cards were proper rewards provided by 7

a “[s]kill-based amusement machine,” that is, they were permissible “merchandise prizes”

because, according to the stipulated facts, any redeemable voucher awarded by the machine was

“redeemable only for merchandise prizes.” R.C. 2915.01(AAA)(1), effective Oct. 16, 2009.

Therefore, there was insufficient evidence that Mr. Mills instructed his employees to give a

player “any item described in division (BBB)(1), (2), (3), or (4) of section 2915.01 of the

Revised Code in exchange for a noncash prize, toy, or novelty received as a reward for playing

or operating a skill-based amusement machine . . . .” R.C. 2915.06(A), effective Oct. 25, 2007.

Regardless of whether the Speedway fuel cards could be considered to be a “noncash prize, toy,

or novelty” under the statute, there was no evidence that the agent exchanged the Speedway fuel

cards for “any item described in division (BBB)(1), (2), (3), or (4) of section 2915.01 of the

Revised Code . . . .” Mr. Mills’ second and third assignments of error are sustained.

POSSESSION OF CRIMINAL TOOLS

{¶12} Mr. Mills’ fourth assignment of error is that his conviction for possession of

criminal tools is not based on sufficient evidence because there is no evidence that he possessed

the machines with a purpose to use them criminally. Under Section 2923.24(A), “[n]o person

shall possess . . . any . . . device . . . with purpose to use it criminally.” As there is not sufficient

evidence to support Mr. Mills’ convictions for complicity to violate Section 2915.06(A), there is

no evidence that he possessed the “skill-based amusement machines” with a purpose to use them

criminally. His fourth assignment of error is sustained.

{¶13} Mr. Mills’ fifth assignment of error is that he should have been charged under the

more specific statute for possession of gambling devices rather than the general statute for

possession of criminal tools. Compare R.C. 2915.02(A)(5), 2923.24(A). This assignment of

error is moot in light of our disposition of assignment of error number four. His first assignment 8

of error is that the trial court incorrectly denied his motion to suppress all evidence gathered by

the Ohio Department of Public Safety because agents of that department do not have authority to

investigate “violations of general criminality contained in [Ohio Revised Code] Chapter 2915.”

This assignment of error is moot in light of our disposition of assignments of error two, three,

and four.

CONCLUSION

{¶14} Mr. Mills’ second, third, and fourth assignments of error are sustained because the

stipulation of facts did not provide sufficient evidence to support his convictions for possession

of criminal tools or complicity to violate Section 2915.06(A) of the Ohio Revised Code. His first

and fifth assignments of error are moot based on our disposition of the other assignments of

error. The judgment of the Stow Municipal Court is reversed.

Judgment reversed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Stow Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 9

Costs taxed to Appellee.

CLAIR E. DICKINSON FOR THE COURT

WHITMORE, P. J. BELFANCE, J. CONCUR.

APPEARANCES:

KURT O. GEARHISER, Attorney at Law, for Appellant.

AMBER E. KEREK, Prosecuting Attorney, for Appellee.