A case involving gaming devices that were confiscated by Garden City police in February 2012 from bars and fraternal organizations was bound over for trial, but with three felony counts instead of the original five against the owner of the machines.
Judge Ricklin Pierce handed down the ruling Tuesday morning in Finney County District Court at the conclusion of a preliminary hearing for Scott E. Brown of Red Oak, Iowa.
Brown is scheduled to be arraigned at 2 p.m. Jan. 13, with Judge Robert Frederick presiding.
Brown had been charged in the case with five felony counts of collecting the proceeds of a gambling device, as well as five misdemeanor counts of knowingly possessing a gambling device. The felony charges are Level 8 and the misdemeanors are all class B. Only the felony charges were the subject of the preliminary hearing.
Brown has been out on bond. He was present for the proceedings with his attorney, Luci Douglass. Special Prosecutor Terry Malone, out of Dodge City, represented the state.
Malone’s first witness was Detective Freddie Strawder, who testified that the Garden City Police Department began checking area fraternal organizations and bars for the gambling devices in February 2012.
The complaint against Brown listed five locations that were raided on or about Feb. 2, 2012: the Time Out Sports Bar and Grill, the American Legion, the Eagles fraternal organization, El Zacatecano Club and Rosie’s Bar and Grill.
Strawder testified that he spoke to the owner of Time Out Sports Bar and Grill, Lee Gallegos, about the machines at the establishment, and that she told him the machines belonged to Brown.
Strawder explained that patrons would put a dollar into the machines to play the game. If they got a winning combination, they received credits, which eventually could be printed as a ticket to exchange for merchandise from the establishment.
Gallegos later testified that the merchandise was food.
Strawder testified that police believed the devices seized from Time Out were illegal gambling devices because they were a game of chance, with a consideration and prizes involved, prizes described repeatedly in testimony as “trinkets,” sometimes by the officers themselves.
Douglass asked who assigned the values to the tickets and determined what they could be exchanged for. Strawder acknowledged the owners did that.
Gallegos, in her testimony, said Brown had approached her in 2005 or 2004 to place the machines in her business.
Malone asked if the machines made money.
“Not really making money, but people enjoyed it,” she said.
She was asked if there was any other merchandise the tickets could be exchanged for at Time Out.
“The merchandise I have is food,” she said.
“So if a person had $5 in tickets, they could buy $5 in food?” Malone asked.
Malone also asked what would happen if the food cost less than the ticket. Did the patron then receive cash back?
“If the food is $4.50, we don’t give a cash back,” she replied. “But if food is $7, and the ticket is $5, they have to pay the difference.”
On cross examination, Douglass asked if law enforcement had been in and out of the bar many times and if they had had many opportunities to see the machines.
Gallegos said yes.
“And no one played the machines and walked out with cash, T-shirts, ball caps or anything like that?” Douglass asked. “Everything was used on the premises right?”
Gallegos agreed with both contentions.
Subsequent representatives of the establishments who had been called to testify offered similar testimony on how the machines operated and what the tickets could be used for.
However, the owner of Rosie’s Bar, Rosaura Rose Hinojos, testified that she was not actually giving a prize in return for tickets.
She was a new owner at the time, she told the court, and the machines already were present at the business. She acknowledged the tickets had the value of a dollar, but testified that she didn’t give any prizes for the tickets at that time.
“No one ever told me they were exchanged for something,” she said.
She did not recall the percentage split, but said she had received $70 from a machine on one occasion.
She acknowledged that she let police take the machines, but said they had told her they were illegal.
“I told him I did not know,” she testified, “and that everyone else had them, too.”
The owners of the El Zacatecano are Filiberto and Abelardo Escobedo. Both required an interpreter for their testimony.
Garden City police detective Mark Johnson had testified prior to their appearance that Abelardo Escobedo had told him the machines belonged to Brown. In later testimony, he had asserted he discussed this with them in English, with no interpreter required.
Both brothers testified otherwise in court. They identified Fred Medina as the owner of the gaming machines and said they’d had a friend help translate.
At El Zacatecano, the tickets could be exchanged for things like key chains and cups, but not beer or alcohol, the brothers testified.
Medina confirmed in his testimony that he knew Brown for seven to eight years, and that he owned two machines at El Zacatecano.
He was asked if he knew whether Brown had machines at the club, but he said he did not know.
The state called as an expert witness Dennis Bachman, who has been through certification and training related to gaming devices while working for the state gaming agency.
He examined all of the confiscated devices, playing them to determine whether they were predominantly games of chance. Based on the reports he was provided by officers and his observations of the machines, he testified that in his opinion the machines were illegal gambling devices.
On cross examination, Douglass asked Bachman what his cutoff would be for a “deminimis” level of prize. This refers to a level of prize that is so marginal it has no real value.
“Would a 50-cent Coke be deminimis?” she asked.
“I would say it would be enough,” Bachman said, indicating it was enough to be considered a prize.
Douglass pointed out the gaming machines could dispense $5 maximum in tickets, after which the customer would have to push the button again, which Bachman agreed was correct.
She also pointed out no dollar amount is printed on the tickets, and that Bachman had no way to know what owners did with the tickets.
“Other than the officer reports,” Bachman replied.
“So if a game involved no skill and included chance and consideration, no matter what the prize is, that equals an illegal gambling device?” Douglass asked.
Bachman repeated state statutes, as an indication that he agreed with that assessment.
“So what would be a legal device?” Douglass asked.
“Predominantly one where the outcome is determined by skill. Speedball, as an example,” Bachman replied.
“So Pacman wouldn’t be legal?” Douglass said.
“I’ve never examined it,” Bachman replied. He added that many video games might appear to be based on skill until further examination reveals that the programming negates the skill of the user in a hidden fashion.
In closing arguments, Malone listed the charges and was in the process of saying that all of the machines listed in the complaint were owned by Brown, but at this point Douglass objected, pointing out some testimony disputed that.
Judge Pierce said he understood her objection, but that he was going to allow the closing statement to include the disputed testimony. Douglass would be allowed to address that aspect in her closing statement, which she did.
Douglass pointed out that the owners of El Zacatecano testified that Fred Medina owned those machines, and that Rosie’s Bar wasn’t exchanging tickets for anything.
“I understand the burden of proof in a preliminary hearing is not high,” she said, but asked the court not to bind over those counts.
As for the other counts, Douglass argued again that the items people were winning amounted to “little trinkets,” and that nobody was walking away with money.
She pointed out the devices have been visible for years in area clubs without anyone saying they were illegal, and that the pay-out rates are fairly high at 67 percent.
“Those tickets could be exchanged for food, drink, some tchotchkes of some sort — no one is walking out with thousands of dollars. The payout is low. It’s no danger to the morals of people,” she argued.
The tickets had to be exchanged only for products from the club, she pointed out.
“I understand the state of Kansas is taking a hard-line approach, but this is the most profoundly silly prosecution I’ve been involved in,” she said. “I think the court should refuse to bind over the counts with questions, and I’m leaving the rest to court discretion.”
Judge Pierce dismissed counts 3 and 9 of the complaint, which were the counts related to the questions Douglass had raised. He said Douglass’ arguments on the other counts were all “well-placed” but added that they would have to be decided on by a jury.
Brown, speaking after the proceedings, said he believed all the charges should have been dismissed.
“it’s not like I didn’t do my due diligence before getting into this business,” he said. He added that the machines are common all over Kansas.
Malone initially said he had no comment, but then added that he felt the judge had made a fair decision.