Brian Rowsey was arraigned in Buena Vista Circuit Court on Friday, pleading not guilty to the three counts of running an illegal gambling operation connected to bingo games held at the 501 Roadhouse restaurant earlier this year, and then argued for motions he’d filed to dismiss the case, remove Buena Vista Commonwealth’s Attorney Josh Elrod as the prosecuting attorney and to change the venue of the trial.
Melvin Williams, the attorney who represented Rowsey at his preliminary hearing in May, was removed as Rowsey’s counsel of record and Rowsey is now representing himself in court.
Rowsey argued that the charges should be dismissed because Elrod had “no evidence, no audio [and] no witnesses” that he had any role in the restaurant or that he had been involved in the bingo games that were held there, and that he was “locked up for sharing a post [on Facebook].”
Rowsey maintained that he has no stake in the restaurant and that his wife is the sole owner. He also claimed that Mike Crouch, who testified at the preliminary hearing about how the bingo games at the Roadhouse worked – notably that players who got bingo did not win a prize outright, but rather won a chance to spin a prize wheel to potentially win a prize that way – had recanted his testimony and claimed that his wife’s job had been threatened if he didn’t testify. Rowsey offered no proof of Crouch’s recantation or any threats levied against his wife’s job at the hearing.
Rowsey challenged the fact that the dates on two of the indictments had been changed from the original warrants at the preliminary hearing, arguing that those warrants should have been dismissed and new warrants issued if a new date was going to be alleged.
According to Virginia State Code, warrants can be amended after being served, either by a judge or on a motion from counsel for either party, provided that the amendments do not substantively change the warrant. If the required amendments are substantial, a new warrant is then issued. The only amendment requested by Elrod at the preliminary hearing was to amend the dates of two of the warrants from Feb. 20 and 23 to Jan. 16 and 19, respectively, which was granted by Judge William Cleveland who presided over the hearing.
Rowsey argued that the dates were changed to better fit the requirements of the illegal gambling operations statute, specifically to meet a requirement that the alleged operation be run for 30 consecutive days.
He also argued that there was no evidence that the alleged operation had generated $2,000 or more of revenue on any given day, which is another specification in the code. Both of those requirements are in the code section Rowsey has been charged under, but as provisions for a potentially higher punishment than simply running an operation that meets the definition of illegal gambling in the state code.
The charges Rowsey is facing are class six felonies, which carry a sentence of one to five years or a jail sentence of up to 12 months and a fine of up to $2,500. If an illegal gambling operation runs for more than 30 consecutive days and generates at least $2,000 in revenue on at least one of those days, then the sentence is one to 10 years in prison and a fine of up to $20,000.
Rowsey’s arguments to have Elrod removed as the prosecuting attorney centered around evidence he had received from Elrod in the case. The evidence he’d been sent, he argued, was not relevant to his case, and included several Facebook posts of items ranging from toy dinosaurs to arcade gaming machines. “If this is all he’s got, how can he lock me up for three to five years?” Rowsey argued.
He also argued that, since Williams was still his attorney of record through the court, Elrod should not have had any direct contact with him at all, and made several references to an incident where the husband of the victim/witness coordinator for the city of Buena Vista had allegedly confronted him and broken into his home. Elrod acknowledged that there had been an incident that had resulted in criminal charges that he believed had been resolved with a plea agreement, but that he was not involved in the case and was not privy to the details.
As to the large amount of seemingly irrelevant evidence, Elrod explained that in discovery for trials, all of the information that had been obtained through search warrants was turned over, not just the things that his office thinks is relevant to the case and plans to present at trial. He also acknowledged that communication regarding a case goes through the attorneys but that prosecuting attorneys can communicate directly with a defendant with permission from their attorney. Elrod said that he reached out to Williams regarding the case, was informed that he was no longer representing Rowsey, and then obtained permission to communicate directly with Rowsey regarding the case.
Judge Christopher Russell dismissed Rowsey’s motions to dismiss the charges and change the venue for the trial, calling them “premature.”
He informed Rowsey that he would have an opportunity at the trial to argue for dismissal of the charges at the conclusion of the commonwealth’s case if he felt that the burden of proof for the charges had not been met, and said that an attempt should be made to fill a jury in Buena Vista before a motion for a change of venue was warranted.
He took the motion regarding Elrod’s status as the prosecuting attorney of the case under advisement and said he will deliver a ruling in writing no later than Oct. 3, when a pre-trial hearing has been scheduled.
On Monday, Rowsey filed a request for appeal on Russell’s rulings with the Buena Vista Circuit Court. No response to that motion had been filed as of press time.
