HARRODSBURG — Edward Johnson claims the video machines confiscated from his store are like the Monopoly game offered by McDonald’s, a promotional sweepstakes entertainment legal under Kentucky’s “vague” gambling statutes.
Mercer Circuit Judge Darren Peckler didn’t buy that argument, however, and on Wednesday denied Johnson’s motion to dismiss the 16 counts of felony promoting gambling against Johnson stemming from a raid on his Pioneer Market store in March. The store is on U.S. 127 in Harrodsburg.
The case is now scheduled for a pretrial conference Oct. 9, at which Johnson will decide whether to accept a plea offer from prosecutors or go to trial.
Acting on complaints, Harrodsburg police sent an undercover officer into the store with marked bills. The officer gave cash to an employee to load money onto an electronic chip, or e-token, which was then used to play games in the back two rooms of the store. After the gambling sessions, the officer returned to the employee to cash out his chip, police said.
That information was used as the basis for a search warrant to raid the store and confiscate 16 video terminals along with $2,300 in cash.
In the motion to dismiss charges, Johnson’s attorney, David Marshall of Nicholasville, argued Johnson was actually selling phone cards at the store where the purchaser would get five minutes of phone time for every $1 loaded on the card. The card also comes with a credit to play a sweepstakes game for cash on the video terminals in the back rooms, and the purchaser can buy additional gaming credits at a rate of $20 per 100 credits, the motion states.
“If the customer wins the sweepstakes game, he can receive a cash prize. If he loses, he still keeps the phone card,” the motion states. “The sweepstakes machines are promotional devices designed to get people to purchase the phone talk time.”
Marshall compares it to the Monopoly game offered often at McDonald’s restaurants in which a customer purchases a cheeseburger or fries and receives game pieces. “Simply put, the sweepstakes machines are the Monopoly game and the phone time is the cheeseburger,” the motion contends.
Prosecutors are “illegally” trying to expand the vague definitions of gambling machines to include the phone card sweepstakes machines, the motion argues, and the state’s gambling statutes are unconstitutionally vague and therefore void.
Commonwealth’s Attorney Richie Bottoms, in his response, said Johnson knowingly profited from setting up gambling machines that operate on e-token chips on which funds are deposited and used to play games of chance.
“Kentucky has strong public policy prohibiting unregulated gambling operations,” Bottoms argues. “It is illegal to conduct, promote, advertise or profit from illegal gambling operations. This statute is not vague.”
Bottoms also pointed out Johnson should be well acquainted with the state’s gambling statutes since he pleaded guilty to second-degree promoting gambling last year, stemming from a raid that police conducted on Pioneer Market in 2009. Similar type video gaming machines were confiscated.
“The defendant clearly had fair notice his conduct would be forbidden. This defendant was, in fact, convicted under this same chapter (of the law) for promoting gambling in February 2011,” Bottoms points out in his response.
After pleading guilty to a misdemeanor charge in that case, Johnson paid a $500 fine and was given a sixth-month jail sentence, probated for two years.
