DocketNumber: No. 05 MA 237.
Citation Numbers: 2007 Ohio 3402
Judges: VUKOVICH, J.<page_number>Page 2</page_number>
Filed Date: 6/29/2007
Status: Precedential
Modified Date: 7/6/2016
{¶ 3} The warrant was obtained because police, during routine patrol, had noticed an excessive number of cars in Theodore's parking lot after business hours. The officer proceeded to investigate. He looked through a window that was partially blocked by a piece of cardboard and observed men standing around a table holding money and one man picking the money up from the table after every pass of the dice. The officer believed the men were playing a dice game. The officer continued to observe the same activity over the next two months; the activity occurred on weekends after the hours of operation from about 3:00 a.m. until 5:30 a.m. The affidavit submitted to obtain the search warrant stated that given the dates the officer saw this occurring, he believed that illegal dice games would occur at Theodore's during the weekend of March 11-13, 2005. Given that information, the judge issued the search warrant.
{¶ 4} On the day of the search, police entered the facility and arrested nine people and charged them with various gambling offenses. The dice game being played on that night was Barbutt. Terlesky was one of the nine people charged. His charges consisted of one count of gambling, a violation of R.C.
{¶ 5} Terlesky moved to suppress the evidence by filing a suppression motion. Following a hearing, the trial court found the search warrant was proper and thereby overruled the motion to suppress.
{¶ 6} The case proceeded to trial. Following trial, the court found Terlesky guilty on all charges. On the gambling charge, he was sentenced to 180 days in jail with 120 suspended and the remaining 60 days to be served pursuant to electronic monitored home arrest (EMHA). He was fined $250 plus costs. On the operating a gambling house charge, he was sentenced to 180 days in jail with 120 days suspended and the remaining 60 days to be served at EMHA. He was fined $250 plus costs. On the possession of criminal tools charge, he was sentenced to 180 days in jail with 120 suspended and the remaining 60 days to be served at EMHA. He also received 12 months probation and was fined $250 plus costs. Lastly, on the public gaming charge, he was required to pay costs within 30 days. The above sentences were ordered to be served concurrently. All monies were ordered forfeited to the Austintown Police Department. Terlesky appeals from the sentence and conviction.
{¶ 8} Terlesky argues the trial court erred in failing to suppress the evidence obtained during the search warrant. He contends that the information in the affidavit upon which the search warrant is based was obtained through an illegal search of Theodore's. He asserts that the police had no right to go onto Theodore's property and look through the window without a search warrant. Thus, in his opinion, the search warrant was not based upon the requisite probable cause.
{¶ 9} The state counters the above argument by making two points. First, it contends that Terlesky does not have standing to argue that the police needed a search warrant to look in the windows or to even challenge the legality of the search *Page 4 warrant. Second, the state argues that the police had the authority to look through the windows, and as such, the warrant was based upon sufficient probable cause and did not constitute an illegal search or seizure.
{¶ 10} Appellate review of a decision on a motion to suppress evidence presents mixed questions of law and fact. United States v. Martinez
(11th Cir.1992),
{¶ 11} Due to the dispositive nature of the argument, the standing argument will be addressed first.
{¶ 13} The state contends that since Terlesky did not own the property that Theodore's sits on, he has no standing to claim that an illegal search of that property occurred. The state supports this claim by stating that Betty Garhammer, Terlesky's sister, owns the land Theodore's sits on.
{¶ 14} The state's argument concentrates on testimony admitted at trial from Garhammer indicating that she owns the real estate that Theodore's sits on. Moreover, Garhammer indicated she pays the real estate taxes on Theodore's. (Trial Tr. 141). However, Garhammer also indicated that Terlesky is her silent partner. (Trial Tr. 144). She stated that while he does not get paid and he is not permitted to do anything in the *Page 5 business, he does have keys to the establishment. (Trial Tr. 144). She explained that in the beginning when she first started the business he gave her money to help start it. (Trial Tr. 146). She also explained that his name is also on the liquor license. (Trial Tr. 146). She stated that he did not sell his interest to her and that he is still a partner, but that he does not own the building anymore. (Trial Tr. 146). Furthermore, an officer testified that in getting the search warrant he determined that Terlesky was on the liquor license.
{¶ 15} Information disclosed during the suppression hearing also indicated that Garhammer owns the real estate that Theodore's is located on, but that Terlesky is a part owner in the business. While the affidavit supporting the search warrant set forth that Garhammer owned the real estate, other testimony indicated that Terlesky was a part owner of Theodore's. When Terlesky's counsel cross-examined the officer, the questions Terlesky asked suggest that Terlesky is an owner of Theodore's. For instance, one question by Terlesky was "did you have anybody with you when you were on my client's property" and "did any one ask you to be on my client's property". (06/23/05 Tr. 24). Furthermore, it also came out on cross-examination that Terlesky applied for a liquor permit for Theodore's. (06/23/05 Tr. 26).
{¶ 16} Given all the above information and the fact that nothing in the record reputes the indication that Terlesky is at least a part owner, he does have standing to raise an issue with the validity of the search warrant. His business was searched, thus, possibly his rights were violated. Consequently, the state's first argument fails.
{¶ 18} "The Fourth Amendment protects the individual's actual and justifiable expectation of privacy from the ear and eye of the government. See, generally, Smith v. Maryland (1979), 442 U.S. 735,740-741; Katz v. United States (1967), *Page 6
{¶ 19} The Ohio Supreme Court has further explained that: "Modern understandings of the Fourth Amendment recognize that it serves to protect an individual's subjective expectation of privacy if that expectation is reasonable and justifiable. Rakas v. Illinois (1978),
{¶ 20} As stated above, Terlesky cites to Boumis to support his contention. In Boumis, officers peered through the window of a private residence and observed what they believed to be gambling. The officers pounded on the front door and when opened, the officers arrested the men that were allegedly gambling including Boumis who was the owner of the home. Evidence, e.g. playing cards, was seized that night, which Boumis subsequently asked the trial court to suppress the evidence. The court suppressed the evidence and the state appealed. The Eighth Appellate District upheld the trial court's suppression of the evidence. It explained:
{¶ 21} "A police officer's unlawful physical trespass upon one's private dwelling property precludes the admissibility of evidence seen, heard, or subsequently seized, since such conduct violates the Fourth Amendment. Johnson v. State (1967),
{¶ 22} Terlesky claims that the only difference betweenBoumis and the case at hand is that Boumis was not a search warrant case. Terlesky is correct that that is one difference between the two cases, however, it is not the only difference. More importantly,Boumis dealt with a private residence. Theodore's is not a private residence, it is a banquet hall and lounge that has a liquor license. (Trial Tr. 141). Furthermore, when the officer drove past Theodore's and observed 10 cars in the *Page 7 parking lot, it was past 2:30 a.m. This was after Theodore's business hours and liquor is not permitted to be served after 2:30 a.m.
{¶ 23} Those facts make Boumis distinguishable. The expectation of privacy in a banquet hall and lounge that is open to the public and that holds a liquor license is less than the expectation of privacy in one's own residence. The expectation of privacy for businesses that have been "pervasively regulated" is reduced. City of Strongsville v. Patel, 8th Dist. Nos. 84736, 84751, 84754, 84749, 84752, 84750, 84753,
{¶ 24} Moreover, the Ohio Supreme Court's recent decision inBuzzard is more analogous to the case at hand, than Boumis. InBuzzard, the Court was determining whether the Fourth Amendment required the police to obtain a warrant before looking through a small opening in a locked double door of a residential garage. The Court determined that it did not. It explained that the actual subjective expectation of privacy must be counterbalanced by objective reasonableness.Buzzard,
{¶ 25} If an officer was permitted to look through the crack in a residential garage door without violating the homeowners Fourth Amendment Rights, it stands to reason that the officer in the situation presented in the case at hand did not violate Terlesky's Fourth Amendment Rights when he looked through a window at Theodore's. Considering the public nature of Theodore's and the type of business it is, subjective expectation of privacy counterbalanced by objective reasonableness *Page 8 indicates there was no Fourth Amendment violation. Accordingly, this assignment of error lacks merit.
{¶ 27} Terlesky raises both sufficiency arguments and manifest weight of the evidence arguments under this assignment of error. A review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations. State v.Gulley (Mar. 15, 2000), 9th Dist. No. 19600. "While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion." Id., citingState v. Thompkins,
{¶ 28} In order to find a conviction was supported by sufficient evidence, this court must review the evidence in a light most favorable to the prosecution. State v. Jenks (1991),
{¶ 29} The first charge addressed is the gambling charge, a violation of R.C.
{¶ 30} It is undisputed that Barbutt was the game being played that night at Theodore's. Consequently, Barbutt must either be a "game of chance conducted for profit" or a "scheme of chance."
{¶ 31} Both of these phrases are defined in R.C.
{¶ 32} However, the element requires it be a game of chanceconducted for profit. R.C.
{¶ 33} Considering all of these definitions, the state was required to prove that Terlesky knowingly engaged in conduct that facilitated the game of Barbutt, which was being played for the profit of the house/dealer. The two elements which Terlesky claims cannot be found are that Terlesky facilitated the game and that the game was "conducted for profit."
{¶ 34} The testimony shows that Terlesky was at Theodore's on March 12, 2005, while Barbutt was being played. (Trial Tr. 30-31). The officer testified that from his observation of Terlesky he was acting as a lookout. (Trial Tr. 49, 67). Furthermore, the officer testified that he believed that Terlesky operated Theodore's. (Trial Tr. 24). He explained that he had previous dealings with Terlesky in his capacity as a liquor agent, which included official documents and licenses, that led him to believe that Terlesky ran Theodore's. (Trial Tr. 69-70). The officer also testified that it was Terlesky who led the officers to the back office of Theodore's where the ledger was found, which allegedly showed that illegal gambling was occurring on the property.
{¶ 35} Garhammer testified that Terlesky is her silent partner. (Trial Tr. 144). She testified that Terlesky does not get paid and he is not permitted to do anything in the business, but he does have keys to the place. (Trial Tr. 144). She further testified that his name is on the liquor license. (Trial Tr. 146). *Page 10
{¶ 36} The above testimony is sufficient to show that Terlesky "knowingly engaged in conduct that facilitated" the game of Barbutt. The officer's indication that Terlesky was acting as the lookout, the fact that Terlesky was the person that led the police into the back office so that it could be searched, and that Terlesky was part owner of the business and had keys was sufficient evidence to show he facilitated the game. In State v. Young (1983),
{¶ 37} However, as stated above, in order for a gambling conviction to be obtained, the game of Barbutt was required to be conducted for profit, meaning the person operating the game must have profited, i.e. the house/dealer got a cut.
{¶ 38} One of the state's witnesses was Donna Merrill. She was at Theodore's on the night in question and explained that people, including her, were playing Barbutt that night. (Trial Tr. 96, 100-104). She indicated that she did not have to pay an entrance fee to play. (Trial Tr. 108).
{¶ 39} Donna testified that she lost that night, however, she explained that if she won she could "tip" somebody if she wanted. (Trial Tr. 106-107, 113). Or, in other words, she could tip the dealer/house. She testified that the dealer did not get a cut per se. (Trial Tr. 113). In explaining this, she testified as follows:
{¶ 40} "Q. [Prosecutor] Okay. There is a cut to the dealer; is that correct?
{¶ 41} "A. [Donna] What do you mean a cut?
{¶ 42} "Q. Is there a five percent cut for the dealer, or for the house?
{¶ 43} "A. You can, you give them, you know, —
{¶ 44} "Q. What's the usual standard, percentage?
{¶ 45} "A. Just like going to a restaurant, you given them a, $2, $1. You can give them $1; you can give them two, you know, $20, you don't give them nothing.
{¶ 46} "Q. What is the usual percentage, ma'am?
{¶ 47} "* * * *Page 11
{¶ 48} "A. Some of the games they do three to five. I didn't pay any rake that night so I can't say?" (Trial Tr. 112-113).
{¶ 49} However, she explained that she did not see anybody pay a rake that night because she was sitting down or drinking coffee. (Trial Tr. 113-114). She stated that she does not know who paid a rake that night, but she is sure somebody did. (Trial Tr. 115). She said that if a rake is paid, then the dealer puts the money in the box on the table. (Trial Tr. 114). She also testified that the rake could go to pay for the food for the night. (Trial Tr. 127).
{¶ 50} Another woman, Twila Borrell, who was there that night, also testified. When asked about the house's cut, i.e. paying a rake, she stated:
{¶ 51} "Q. [Prosecutor] There were winners and there were losers; is that correct? Is there someone who gets a percentage or cut?
{¶ 52} "A. [Twila] (Inaudible.)
{¶ 53} "Q. You don't know anything about the cut?
{¶ 54} "A. I don't know about it; I don't care about it. I don't care what they do. I just wanted to play.
{¶ 55} "Q. All right. And did you play?
{¶ 56} "A. Yes, I did.
{¶ 57} "Q. And did you have to tip anybody to play?
{¶ 58} "A. You can tip.
{¶ 59} "Q. I didn't ask you that.
{¶ 60} "A. If you're winning you can tip. If your winning you can pay; they take it towards food.
{¶ 61} "Q. As far as you know?
{¶ 62} "A. Right as far as I know. I don't care what they —." (Trial Tr. 175-176).
{¶ 63} Twila further testified that she did not tip anybody that night and she did not pay attention to whether anyone else was tipping. (Trial Tr. 176).
{¶ 64} One of the last witnesses to testify was Officer Solic, the inventory officer. (Trial Tr. 197). His testimony was offered to try to show that the ledger was used to track the gambling. He testified as follows:
{¶ 65} "Q. [Prosecutor] Now, from your training, education and experience, have you investigated gambling activities in the past? *Page 12
{¶ 66} "A. [Solic] Not gambling but narcotics.
{¶ 67} "Q. And do people who run —
{¶ 68} "Mr. Maillis [counsel for one of the co-defendants]: Objection, Your Honor. He said he's never investigated a gambling case before. So if he's going to ask him what that piece of paper is going to be, note my objection.
{¶ 69} "Judge D'Apolito: (Inaudible.)
{¶ 70} "Q. And do people who participate in illegal drug activity keep records or notes similar to the ones you see?
{¶ 71} "Mr. Maillis: Objection.
{¶ 72} "Unidentified Speaker: Objection. Immaterial. Irrelevant.
{¶ 73} "Judge D'Apolito: (Inaudible.)
{¶ 74} "A. (Inaudible.)
{¶ 75} "Q. Yes, do they?
{¶ 76} "A. Yes, sir.
{¶ 77} "Q. Now, the document that — you say came from Victor Maillis?
{¶ 78} "A. Yes.
{¶ 79} "Q. Were you investigating narcotic drug activity?
{¶ 80} "A. At this time, no.
{¶ 81} "Q. Were you investigating gambling activity?
{¶ 82} "A. Yes, Sir.
{¶ 83} "Q. What did you, did you use your experience in narcotics to identify that document used in this gambling activity?
{¶ 84} "* * *
{¶ 85} "A. My experience as an investigator would lead me to believe that this ledger is a notation for monies owed.
{¶ 86} "Q. By the participants?
{¶ 87} "A. By the individual whose name and number appears that would be my experience that that individual would owe the holder of the ledger that amount of money." (Trial Tr. 199-201).
{¶ 88} Thus, Solic's testimony, if believed, established that some of the players owed Victor Maillis, the dealer, money. Yet, one attorney asked whether the note indicated any evidence of illegal activity, or in other words if someone had borrowed or *Page 13 lent money was that illegal. (Trial Tr. 201). The officer testified that to borrow or lend money in and of itself is not illegal. (Trial Tr. 202).
{¶ 89} No witness testified that the house/dealer definitely got a cut. However, the evidence when viewed in the light most favorable to the state indicates that it did. There is testimony that it is customary that if someone won they would pay a percentage to the house/dealer. When that money was paid, it was put into the box in front of the dealer. Money confiscated from the dealer box on the table was $1,871. Furthermore, there was a ledger that allegedly showed who owed money to the house/dealer. Additionally, this game was occurring after regular business hours at around 3:00 a.m. Likewise, the windows to the business were partially blocked by cardboard. Considering all this, there was sufficient evidence to find that the game of Barbutt was being "conducted for profit."
{¶ 90} Likewise, considering the evidence, we cannot find that the court clearly lost its way when it found Terlesky guilty of gambling. Admittedly, there was no direct evidence that Terlesky facilitated the game and that Barbutt was being "conducted for profit." However, there was circumstantial evidence. Circumstantial evidence and direct evidence have the same probative value, and in some instances, certain facts can be established only by circumstantial evidence. Jenks,
{¶ 91} The next two convictions are operating a gambling house, and public gaming. Operating a gambling house is a violation of R.C.
{¶ 92} As can be seen by the definitions, these two crimes require that it be proven that a game of chance was being played. Above, we found that Barbutt was a game of chance and that it was being played for profit. Thus, the only element that must be found in order to convict under operating a gambling house, and public gaming are that Terlesky was the owner or lessee, or had custody, control or supervision of the hall. We have previously stated that the evidence indicates that Terlesky is part owner of Theodore's. This would be sufficient to support the element of being an owner or lessee, or having custody, control or supervision of the hall. Thus, those convictions were supported by sufficient evidence, and they were not against the manifest weight of the evidence.
{¶ 93} The last conviction is for possession of criminal tools, a violation of R.C.
{¶ 94} The indictment alleges that the criminal tools were dice, dice tables, rakes and U.S. currency. However, it is noted that the testimony clearly reveals that no money was confiscated from Terlesky's person. Furthermore, there is no indication in the testimony whether the evidence taken from the dealer's box was going to the dealer, Victor Mallis, or the house. However, what was confiscated was dice, dice table, and rakes.
{¶ 95} While possession of those items might be considered possession of criminal tools, we must note that there is a gambling statute that specifically addresses possession of gambling paraphernalia. It is R.C.
{¶ 96} "(A) No person shall do any of the following:
{¶ 97} "(1) Engage in bookmaking, or knowingly engage in conduct that facilitates bookmaking;
{¶ 98} "(2) Establish, promote, or operate or knowingly engage in conduct that facilitates any game of chance conducted for profit or any scheme of chance;
{¶ 99} "(3) Knowingly procure, transmit, exchange, or engage in conduct that facilitates the procurement, transmission, or exchange of information for use in establishing odds or determining winners in connection with bookmaking or with any game of chance conducted for profit or any scheme of chance; *Page 15
{¶ 100} "(4) Engage in betting or in playing any scheme or game of chance as a substantial source of income or livelihood;
{¶ 101} "(5) With purpose to violate division (A)(1), (2), (3), or (4) of this section, acquire, possess, control, or operate any gamblingdevice." (Emphasis added).
{¶ 102} R.C.
{¶ 103} "(F) `Gambling device' means any of the following:
{¶ 104} "(1) A book, totalizer, or other equipment for recording bets;
{¶ 105} "(2) A ticket, token, or other device representing a chance, share, or interest in a scheme of chance or evidencing a bet;
{¶ 106} "(3) A deck of cards, dice, gaming table, roulette wheel, slot machine, or other apparatus designed for use in connection with a game of chance;
{¶ 107} "(4) Any equipment, device, apparatus, or paraphernalia specially designed for gambling purposes;
{¶ 108} "(5) Bingo supplies sold or otherwise provided, or used, in violation of this chapter."
{¶ 109} From a plain reading of this statute, the dice, dice cup, rakes, and table would clearly fall under this specific statute.
{¶ 110} For purposes of our review for sufficiency, this means that the possession of criminal tools conviction should be reversed. The Ohio Supreme Court in State v. Volpe (1988),
{¶ 111} In Volpe, appellant was found guilty of possession of criminal tools in violation of R.C.
{¶ 112} "Well-established principles of statutory construction require that specific statutory provisions prevail over conflicting general statutes.
{¶ 113} "* * *
{¶ 114} "R.C.
{¶ 115} "* * *
{¶ 116} "Given that the General Assembly clearly enacted R.C.
{¶ 117} This case clearly indicates that if a person has possession of a "gambling device" then that person can only be charged under R.C.
{¶ 118} For the foregoing reasons, the judgment of the trial court regarding the motion to suppress is hereby affirmed. The convictions for gambling, operating a gambling house, and public gaming are also affirmed. However, the conviction for possession of criminal tools is reversed and vacated.
*Page 1DeGenaro, P.J., concurs. Donofrio, J., concurs.