The Akron Legal News

Man who operated illegal Dayton fundraiser loses appeal

ANNIE YAMSON
Special to the Legal News
Published: April 18, 2014

The judgment of the Montgomery County Municipal Court was recently affirmed by a three-judge appellate panel in the 2nd District.

The municipal court found Thomas Boscarino guilty of gambling, activities prohibited without a permit, operating a gambling house and keeping a place where intoxicating liquors are sold in violation of the law.

Boscarino was ordered to serve suspended 180-day jail sentences for each offense, pay $3,500 in fines and serve one year of non-reporting community control with the condition that he complete 500 hours of community service within 15 weeks.

The convictions stemmed from a fundraiser that Boscarino organized for his adult son, Nikolaos, who in 2012 had been involved in a physical altercation with police officers, resulting in high legal and medical expenses.

Boscarino rented a public hall and suggested a $15 donation at the door to the event.

Two undercover police officers, Thomas Oney and Doug George, attended the event in response to a tip that Boscarino would be holding an event with illegal gambling and liquor sales.

The detectives paid the requested $15 donation at the door and received an orange wrist band and a cup and were informed that there was unlimited beer and pizza.

Upon entering, Oney obtained a glass of beer without additional payment.

George went to the bar where a sign above the counter indicated “suggested donations” for liquor drinks. He paid two dollars for one shot of Jack Daniels.

On the other side of the hall, the detectives noticed people playing Texas Hold ‘Em.

Oney purchased some poker chips and began to play but noticed that the dealer was taking a 10 percent cut of the pot for the house.

As Oney was playing poker, Boscarino stepped onto a small platform stage at the front of the hall.

He thanked everyone for coming and informed them that there were two undercover Dayton police officers at the event.

Oney testified that, at this point, many of the people in the room began to stare at him and George.

Boscarino continued speaking about the arrest of his son, the legal system and the amount he had spent on his son’s defense.

He also indicated that he would arrange a ride home for anyone who was unable to drive.

Oney contacted his supervisor and informed him that his and George’s identities had been compromised and then proceeded to play poker.

After Boscarino’s speech, the dealer began asking the players if they would consider contributing a 10 percent donation.

When uniformed officers arrived the hall was locked down and numerous items were collected pursuant to a search warrant.

Police gathered poker chips, cards, kegs of beer, bottles of liquor, a TV, computer, invoices and more than $2,500 in money.

Following his conviction, Boscarino challenged the sufficiency and manifest weight of the evidence against him.

Writing on behalf of the court of appeals, Presiding Judge Jeffrey Froelich cited R.C. 2915.02(A)(2), which states that no person “shall establish, promote, operate or knowingly engage in conduct that facilitates any game of chance conducted for profit or any scheme of chance.”

Boscarino argued that Texas Hold ‘Em is not a game of chance but both of the undercover detectives testified that it was a form of poker, which is defined as a game of chance by statute.

“Although there was some evidence that skillful bluffing plays a role in winning poker hands, the state provided sufficient evidence that the card game at issue was a game of chance, i.e. a form of poker, and that Boscarino engaged in conduct that promoted a game of chance,” wrote Judge Froelich.

Boscarino also argued that the statute did not apply to his event because it was a one-time fundraiser and he claimed that he did not make any profit, but the appellate panel found that the law “extends beyond gambling business operations.”

“The penny-ante poker game in one’s own home with friends, the dime-a-hole Saturday golf match and the office football pool are not prohibited, unless some profit is taken other than the gain accruing to a winner,” the statute reads. “If a nominal charge is made for admission or for a seat in the game, or a small percentage of the pot or pool is taken, or the house takes an edge in the odds, then profit enters the picture.”

The court of appeals noted that, while there was no evidence that Boscarino regularly organized such events, his conduct on the day of the fundraiser fell within the scope of the law when a percentage of the pot was taken by the dealer at the poker table.

Likewise, the court of appeals held that the “suggested donations” for beer and liquor were actually more akin to payment and it upheld the trial court’s conclusion that Boscarino sold liquor without a license.

The appellate panel ultimately affirmed Boscarino’s convictions and sentence with the exception of the community service requirement because the trial court failed to notify Boscarino at his sentencing hearing of the 15-week deadline.

Judges Mike Fain and Michael Hall concurred and the case was remanded for resentencing.

The case is cited State v. Boscarino, 2014-Ohio-1270.

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