[Cite as State v. Paxson, 2012-Ohio-4707.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                        Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case Nos. 12 CA 22 and 12 CA 23
TERRIAN PAXSON

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case Nos. 11 CRB 1037 and 11 CRB 1038


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         October 9, 2012



APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellee

JONATHAN C. DIERNBACH                          W. EVAN PRICE II
ASSISTANT LAW DIRECTOR                         JAMES E. ARNOLD & ASSOCIATES
35 South Park Place, Suite 35                  115 West Main Street, Suite 400
Newark, Ohio 43055                             Columbus, Ohio 43215-5099
Licking County, Case No. 12 CA 22 and 12 CA 23                                          2

Wise, J.

      {¶1}   Plaintiff-Appellant State of Ohio appeals the decision of the Licking County

Municipal Court dismissing the charges against Appellee Terrian Paxson for six counts

of complicity to commit skill-based games prohibited conduct.

                       STATEMENT OF THE CASE AND FACTS

      {¶2}   Defendant-Appellee was charged in two cases with an aggregate of six (6)

counts of complicity to commit skill-based games prohibited conduct.

      {¶3}   On July 21, 2011, Defendant- Appellee filed a Motion to Dismiss. The

limited issue presented by Defendant-Appellee's motion was whether or not the credits

won by players on the machines at issue are a "non-cash" prize as contemplated by

R.C. 2915.06(A).

      {¶4}   A Stipulation of Facts in relation to the Motion to Dismiss was filed on July

18, 2011, which stated:

      {¶5}   “For purposes of Defendant Terrian Paxson's Motion to Dismiss the

charges filed in the above-captioned matter, Plaintiff State of Ohio and Defendant

Terrian Paxson hereby stipulate to the following facts:

      {¶6}   “1. Ms. Paxson was the owner and sole proprietor of skill game parlors

named "Chances R" located at 369 W. Main Street, Newark, Ohio and "Lucky's" located

at 305 Deo Drive, Newark, Ohio from December 20, 2010 through January 7, 2011.

      {¶7}   “2. At approximately 12:15 pm on Monday, December 20, 2010,

Investigators Bonace and Duduit from the Ohio Attorney General's Office entered

Lucky's.
Licking County, Case Nos. 12 CA 22 and 12 CA 23                                            3


      {¶8}     “3. Investigator Duduit began to play a game named "Magic Bomb" on

machine #16. Investigator Duduit put $20,00 in the machine and after winning and

losing various amounts for approximately 15 minutes his total was $25.00 and he

decided to cash out/redeem his winnings

      {¶9}     “4. Investigator Duduit notified the clerk who verified his total on a receipt

that printed out behind the counter and proceeded to provide Investigator Duduit with

$25.00 cash.

      {¶10} “5. Investigators Duduit and Bonace then left Lucky's at approximately

12:30 p.m.

      {¶11} “6. At approximately 12:45 p.m. on Monday, December 20, 2010,

Investigators Bonace and Duduit entered Chances R.

      {¶12} “7. Investigator Duduit began play on machine # 9. Investigator Duduit put

$20.00 in the machine and after winning and losing various amounts for approximately

15 minutes his total was $25.00 and he decided to cash out/redeem his winnings.

      {¶13} “8. Investigator Duduit notified the clerk who verified his total on a receipt

that printed out behind the counter and proceeded to provide Investigator Duduit with

$25.00 cash.

      {¶14} “9. During this same time frame, Investigator Bonace began play on

machine # 1. Investigator Bonace put $20.00 in the machine and after winning and

losing various amounts her total was $24.75 and she elected to redeem her credits.

      {¶15} “10. The clerk verified the total on a receipt that printed out behind the

counter and paid Investigator Bonace $20.00 in cash but the remaining $4.75 was not

paid because Chances R only paid in $5.00 increments. Investigator Bonace resumed
Licking County, Case Nos. 12 CA 22 and 12 CA 23                                          4


play and after a few more minutes of play increased her total to $7.00. Investigator

Bonace then redeemed and was given another $5.00 in cash.

      {¶16} “11. Investigators Duduit and Bonace then left Chances R at

approximately 1:00 p.m.

      {¶17} “12. At approximately 12:00 p.m. on Wednesday, December 22, 2010,

Investigators Bonace and Duduit entered Lucky's.

      {¶18} “13. Investigator Duduit began to play a game named "Magic Bomb" on

Machine #16. Investigator Duduit put $20.00 in the machine and after winning and

losing various amounts for approximately 15 minutes his total was $50.00 and he

decided to cash out/redeem his winnings.

      {¶19} “14. Investigator Duduit notified the clerk who verified his total on a receipt

that printed out behind the counter and proceeded to provide Investigator Duduit with

$50.00 cash.

      {¶20} “15. Investigators Duduit and Bonace then left Lucky's at approximately

12:30 p.m.

      {¶21} “16. At approximately 1:00 pm on Wednesday, December 22, 2010,

Investigators Bonace and Duduit entered Chances R.

      {¶22} “17. Investigator Duduit began play on a game· named "Triple Jacks".

Investigator Duduit put $20.00 in the machine and after winning and losing various

amounts for approximately 15 minutes his total was $25.00 and he decided to cash

out/redeem his winnings.
Licking County, Case Nos. 12 CA 22 and 12 CA 23                                          5


      {¶23} “18. Investigator Duduit notified the clerk who verified his total on a receipt

that printed out behind the counter and proceeded to provide Investigator Duduit with

$25.00 cash.

      {¶24} “19. During this same time frame, Investigator Bonace began play on

machine #31. Investigator Bonace put $20.00 in the machine and after winning and

losing various amounts she raised her total to $50.00. Investigator Bonace then

redeemed and was then paid $50.00 in cash after the clerk verified her total on a receipt

that printed out behind the counter.

      {¶25} “20. Investigators Duduit and Bonace then left Chances R at

approximately 1:15 p.m.

      {¶26} “21. At approximately 11:15 a.m. on Thursday, January 6, 2011,

Investigators Bonace and Duduit entered Lucky's.

      {¶27} “22. Investigator Duduit began to play a game named "Magic Bomb" on

machine #16. Investigator Duduit put $20.00 in the machine and after winning and

losing various amounts for approximately 15 minutes his total was $30.00 and he

decided to cash out/redeem his winnings.

      {¶28} “23. Investigator Duduit notified the clerk who verified his total on a receipt

that printed out behind the counter and proceeded to provide Investigator Duduit with

$30.00 cash.

      {¶29} “24. During this same time frame, Investigator Bonace began to play a

game named "Jack and the Beanstalk" on machine #38. Investigator Bonace put $10.00

in the machine and after winning and losing various amounts she raised her total to
Licking County, Case Nos. 12 CA 22 and 12 CA 23                                           6


$100.00. Investigator Bonace then redeemed and was then paid $100.00 in cash after

the clerk verified her total on a receipt that printed out behind the counter.

       {¶30} “25. Investigators Duduit and Bonace then left Lucky's at approximately

12:45 p.m.

       {¶31} 26. At approximately 1:00 pm on Thursday, January 6, 2011, Investigators

Bonace and Duduit entered Chances R.

       {¶32} “27. Investigator Duduit began to play a game named "Triple Jacks" on

machine #28. Investigator Duduit put $20.00 in the machine and after winning and

losing various amounts for approximately 15 minutes his total was $25.00 and he

decided to cash out/redeem his winnings.

       {¶33} “28. Investigator Duduit notified the clerk who verified his total on a receipt

that printed out behind the counter and proceeded to provide Investigator Duduit with

$25.00 cash.

       {¶34} “29. Investigators Duduit and Bonace then left Chances R at

approximately 1:15 p.m.

       {¶35} “30. Ms. Paxson was complicit in the cash payments made to

Investigators Bonace and Duduit on December 20, 2010, December 22, 2010 and

January 6, 2011.”

       {¶36} An oral hearing was conducted on August 18, 2011.

       {¶37} By Judgment Entry filed March 5, 2012, the court granted Defendant's

Motion to Dismiss, finding that the receipts being exchanged for cash in these cases

were not non-cash prizes, toys or novelties as prohibited by R.C. §2915.06 and R.C.

§2915.01.
Licking County, Case Nos. 12 CA 22 and 12 CA 23                                             7


         {¶38} Appellant now appeals, assigning the following errors for review:

                                 ASSIGNMENT OF ERROR

         {¶39} “I.    THE TRIAL COURT COMMITTED ERROR BY DISMISSING THE

CASES AGAINST DEFENDANT-APPELLEE.”

                                               I.

         {¶40} In its sole Assignment of Error, the State argues that the trial court erred in

dismissing the cases against Defendant-Appellee. We disagree.

         {¶41} The then current version of Revised Code §2915.06 Skill-based

amusement machine prohibited conduct provided:

         {¶42} “(A) No 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.

         {¶43} A “merchandise prize is defined in R.C. §2915.01(BBB) as:

         {¶44} “… any item of value, but shall not include any of the following:

         {¶45} “(1) Cash, gift cards, or any equivalent thereof;

         {¶46} “(2) Plays on games of chance, state lottery tickets, bingo, or instant

bingo;

         {¶47} “(3) Firearms, tobacco, or alcoholic beverages; or

         {¶48} “(4) A redeemable voucher that is redeemable for any of the items listed in

division (BBB)(1), (2), or (3) of this section.”
Licking County, Case Nos. 12 CA 22 and 12 CA 23                                          8


       {¶49} As set forth above, after reviewing the above statutes and the stipulations

of the parties, the trial court found that the receipt generated behind the counter, which

was then exchanged for cash, did not fall within the definitions of “noncash prize, toy, or

novelty received as a reward for playing…”

       {¶50} We will begin our review with the charges in these cases which cite

Appellant with violations of prohibited conduct of skill-based amusement machine in

violation of R.C. §2915.06.

       {¶51} A “skill-based amusement machine” is defined in R.C. §2915.01(AAA) as

follows:

       {¶52} “(1) * * *[A] mechanical, video, digital, or electronic device that rewards

the player or players, if at all, only with merchandise prizes or with redeemable

vouchers redeemable only for merchandise prizes, provided that with respect to

rewards for playing the game all of the following apply:

       {¶53} “(a) The wholesale value of a merchandise prize awarded as a result of

the single play of a machine does not exceed ten dollars;

       {¶54} “(b) Redeemable 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;

       {¶55} “(c) Redeemable 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 that prize; and

       {¶56} “(d) Any redeemable vouchers or merchandise prizes are distributed at

the site of the skill-based amusement machine at the time of play.
Licking County, Case Nos. 12 CA 22 and 12 CA 23                                           9


         {¶57} “(2) A device shall not be considered a skill-based amusement machine

and shall be considered a slot machine if it pays cash or one or more of the following

apply:

         {¶58} “(a) The 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.

         {¶59} “(b) Any reward of redeemable vouchers is not based solely on the player

achieving the object of the game or the player's score;

         {¶60} “(c) The 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.

         {¶61} “(d) The success of any player is or may be determined by a chance

event that cannot be altered by player actions.

         {¶62} “(e) The ability of any player to succeed at the game is determined by

game features not visible or known to the player.

         {¶63} “(f) The ability of the player to succeed at the game is impacted by the

exercise of a skill that no reasonable player could exercise.”

         {¶64} While the trial court herein found that issue in this matter to be whether or

not the receipt issued is a “noncash prize, toy, or novelty”, we instead find the issue is

whether the record demonstrates that the game machines in these cases are skilled-

based amusement machines or are instead “slot-machines”.

         {¶65} No evidence was established in this matter that the subject games were a

skilled-based amusement machines. Generally, proof is established via expert

testimony or a prior court judgment recognizing such machines as a skill-based
Licking County, Case Nos. 12 CA 22 and 12 CA 23                                      10

amusement machine. See State v. Rocco, Stark App. No. 2011CA00071, 2011-Ohio-

4978.

        {¶66} Upon review, we find that the testimony and evidence in this matter

established the game machine's redeemable ticket paid out cash like a “slot machine.”

        {¶67} The machines were therefore not skill-based amusement machines

because the redeemable vouchers issued were redeemable for cash.

        {¶68} We therefore find that Appellee herein was incorrectly charged and that

evidence was insufficient to establish a violation of R.C. §2915.06.

        {¶69} This judgment of the Municipal Court of Licking County, Ohio, is therefore

affirmed, albeit on different grounds from those relied on by the trial court.


By: Wise, J.

Farmer, J., concurs.

Hoffman, P. J., concurs separately.



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                                              ___________________________________


                                              ___________________________________

                                                                   JUDGES
JWW/d 0904
Licking County, Case Nos. 12 CA 22 and 12 CA 23                                       11

Hoffman, P.J. concurring

       {¶70} I concur in the majority’s disposition of the State of Ohio’s appeal, but do

so for a reason different than that proffered by the majority.1

       {¶71} I would affirm the trial court’s decision for the same reason it dismissed

the charges; i.e., the cash the State’s agents were given was not received in exchange

for a “noncash prize, toy, or other novelty received as a reward for playing or operating

a skill-based amusement machine…” R.C. 2915.06(A).


                                                         __________________________
                                                         HON. WILLIAM B. HOFFMAN




1
  The majority’s determination the machine in question is not a skill-based amusement
machine but more like a “slot machine” involves an issue neither raised nor addressed
in the parties’ briefs to this Court.
Licking County, Case No. 12 CA 22 and 12 CA 23                                   12


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellant                  :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
TERRIAN PAXSON                              :
                                            :
       Defendant-Appellee                   :         Case Nos. 12 CA 22 & 12 CA 23



       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court, Licking County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
