*1 CHILDS, Appellant, TIMOTHY JOHN Respondent. NEVADA, THE OF STATE No. September Defender, Parraguirre, David Public Grifall, Karen Deputy McKenna, Defender,
Public and Jane G. Deputy Public Defender, Washoe County, Appellant. General, Papa, Frankie Sue Del Attorney Carson City; Holmes, Hatlestad,
Dorothy Gary District Attorney Nash H. Attorney, Deputy County, Washoe for Respondent.
OPINION Young, Court, J.: By the conviction, from a appeal judgment is an pursuant to a verdict,
jury of one count one gambling count convictions stem from burglary. Appellant’s his activities in Nevada, Ascuaga’s John on Nugget Sparks, December Fleiner, casino, M. an operations manager 1989. Karen for the appellant through testified at trial that she observed a monitor as he saw appellant jerk a slot machine. Fleiner on played the handle way of the slot machine in such a one of three reels would observed this “handle As soon as she prematurely. stop spinning Control Board. Gaming Fleiner called popping,” casino in response at the Johnson arrived Robert Agent directly Johnson watched Agent Fleiner’s call. minutes not see use of the slot and did five approximately *2 Johnson illegal. Agent considered Johnson Agent appellant monitor and saw through the appellant then observed times. reels” several
“freeze the
cheating
of one count of
at
guilty
appellant
found
jury
The
465.070(7), 205.060.
burglary.
one count of
gambling
to serve two concurrent
court sentenced
The district
Prison. On appeal, appel-
State
in the Nevada
years
of six
terms
465.070(7)
vague
unconstitutionally
that NRS
lant contends
to reverse his convictions.
this court
asks
and therefore
issue of whether NRS
1989,
addressed the
this court
In
to handle
applied
pop-
as
unconstitutionally vague
was
465.015
317,
(1989).
State,
P.2d
105 Nev.
775
219
v.
ping.1
to be
as follows:
applied
standard
set forth the
court
Harriss,
in Harriss
v.
As
noted
States
previously
[United
(1954)],
are deemed to have been
persons
vagueness are here, Maynard amendment interests are not implicated. first 1853, (1988). Cartwright, v. 108 S.Ct. 320, 221. at 775 P.2d at Lyons 105 Nev. 465.015, this court this standard to NRS first deter-
Applying to prevent “knowing, the statute was intended pur- mined that to alter the criteria that designed unlawful conduct poseful, gambling activity.” Lyons, lawful determines the outcome 221. As an example type at this 105 Nev. which we had previously card activity, crimping, we mentioned Martin, NRS 465.015. See Sheriff to be prohibited
held
(1983).
that card crimping,
We stated
devices,
tools or
constituted
special
the use of
like
game
the nature of the
criteria
it alters “both
because
at
mine: (a) game; or The result of a game. payment in a (b) frequency of The amount or activities, In contrast to these we discussed card counting and taking advantage a dealer’s unintentional revelation of his cards. Concluding that neither act 465.015, violated NRS we stated: cases, what their simply exploit skills and players
In both yet, will afford them. And are game they play criteria, i.e., the characteristic complex the usual altering frequency payment. that determines standard of play “neither nor mechani- damages that handle Noting popping Id. machine,” emphasized this court that an inno- alters a slot cally technique just across the and use it cent novice could stumble Analogizing Id. the slot machine effectively as a professional. advantage who takes of a dealer’s unin- person to a manipulator cards, we concluded that slot machine of his tentional revelation advantage take of what the slot simply handle manipulators concluded, does manipulation, them. Handle give machines characteristics and offs of potential pay alter the “physical P.2d at Lyons, 105 Nev. 222. slot machines.” intent, Next, element of our reviewing pre- discussed the *3 Martin, in Sheriff v. 99 Nev. subject on the vious comments (1983), in fraudulent intent recognized P.2d 634 662 under NRS 465.015. our Continuing element of an Martin, v. we stated: discussion of Sheriff Moreover, that “the of the we also observed attributes characteristics and basic physical established game—its game’s of the various probabilities the rules—determine Changing those attributes to affect those outcomes. possible 341]; Nev. at is a criminal act.” probabilities [99 slot machines have established in the 638. Games form of by are altered handle pop- characteristics that physical rules, Furthermore, any written or we are unaware ping. otherwise, to the handles directing patrons pull gaming sophisticates manner. Certain in a specific —such handles with a form undoubtedly manipulate Lyons—would that the procedure because of their awareness of scienter for criminal in Nevada. Others prosecution forms a basis more favorable method of play, stumble across a . . . who an intent to cheat or defraud. It is handle without pop will however, do not materialize or categories that crime clear or presence an ad hoc basis because on disappear statute, by Public offenses are defined of scienter. absence See NRS 193.050. or the common law. ordinance added). P.2d at 222 (emphasis Nev. at Lyons, 105 Lyons, the legislature to our decision in response In apparent subsection 7.2 NRS 465.070 pro- to add NRS 465.070 amended pertinent part: vides in any person:
It is unlawful for cheat, any with the intent to compo- 7. To manipulate, contrary in a to the designed nent of a device manner gaming for the includ- operational purpose component, and normal to, of the handle varying but not limited of a slot ing, pull machine, with that the affects the knowledge manipulation or with event that knowledge game outcome of the game. affects the outcome 465.070(7) is unconstitutionally contends that NRS
Appellant arbitrary analysis. both a and an enforcement under notice vague Rockford, City (1972) 108-109 Grayned U.S. See (a give if it fails to fair notice of conduct vague law is explicit or fails to standards those who provide it, arbitrary discriminatory and enforce- thereby allowing enforce ment). Lyons, this directive Quoting court’s in claims 465.070(7) prohibited that does not describe the specifically terms, and notes “clearly expressed, that there specific” acts in a “normal” regulation defining pull is no Nevada statute still machine handle. of a slot valid, is are to be and the burden on the presumed
Statutes showing unconstitutionality. to make a clear of their challenger Martin, (1983). Sheriff v. by have not been resolved expressed The concerns First, 465.070(7). 465.070(7) while NRS
the creation NRS cheat,” “cheating” with intent “manipulation] forbids however, 465.015. We held in still defined NRS alter physical does not “the characteristics manipulation handle machines,” therefore of slot does not pay offs potential *4 Lyons, NRS 465.015. at cheating under constitute in the slot machine pulling at 222. Thus appellant, 775 P.2d machine, could damage not the not have way in a that did handle cheated.
Next, 465.070(7) prohibits “varying the although pull” handle, not a definition of a provide it does of a slot machine vary. a must not The statute player from which pull “normal” the of pulling at lawful method a guess left to appellant therefore Harriss, U.S. at 617. The vague- machine handle. See slot Lyons June 2The decision in was filed The bill creating 1989. the enacted June amendment to NRS 465.070 was 1989. not the fact that when ness of the was cured statute machine, on the he the handle intended to do pulled as well would be Obviously, any he could. such an intention shared by As professional whether or novice. in player, explained Indeed, of such the existence an intent is criminal. a definition meaningless statutory discussion of intent without Here, proscribed conduct. because the the conduct norm, undefined only varying was defined from an no such Lyons: existed. As we in statutory definition stated industry and the desire gaming If the State to make handle handle of slot in manipulation or machines a crime popping Nevada, in clearly it will be to do so necessary expressed, Moreover, statutory given terms. fact that specific inno- cent, may so patrons easily well-intentioned adopt various handle an in to manipulation attempt change methods their fortune, will be to necessary provide conspicuous it notices patrons the machines to inform which on or about methods pulling are lawful which of handle and methods are feloni- ous. 223.
Lyons, 105 Nev. judgment reverse Accordingly, appellant’s conviction. J., J., J., Mowbray, Steffen, C. con- Bonaventure, D. cur.3 J.,
Springer, dissenting: The statute under Childs stands convicted to declares it cheat, be “manipulate, unlawful to with the intent to any compo- nent of a device in a gaming contrary manner to the or designed normal operational purpose . . . .” There is ample evidence to of a convict Childs a slot manipulation machine. observed, Childs as put majority was in the opinion, to “jerk the handle slot machine in a way of the such that one of the three would, spinning reels would stop prematurely.” activity as I it, (one “manipulate” reels) see be to a of the component three in contrary a manner to the reel’s designed normal If purpose. a “jerk” or other violent of a slot manipulation machine handle can cause one reel to stop “prematurely,” is to say, “before (Webster’s usual time” Ninth proper or New Collegiate (1985)), Dictionary then I think the “jerker” is cheating. “skill,” activity This kind of is not an in exercise to borrow a but, rather, in word a conscious employed effort to disrupt usual” machine. “proper operation The of a design Bonaventure, Joseph Judge Eighth T. Judicial 3The Honorable Court, designated by place the Governor sit of The was Const, Rose, E. art. Justice. Nev. 6 4.§ Honorable Robert *5 unobstructed, random, serial rotation contemplates a with the machine’s When interferes person of three reels. other striking, jerking or by pushing, “operational purpose” machine which interferes with insult to the untoward physical to be a “manipula- I consider this operation, machine’s normal intent, which, by a fraudulent consti- accompanied when tion” 465. I do like to declare Chapter tutes a crime under NRS I would the conviction. uphold unconstitutional. statutes be LYTLE, Appellant, v. THE PAUL JOHN Respondent. NEVADA, OF STATE
No. 21404 September Terry, Vegas, Appellant. B. Las
William General, Attorney City; Rex Papa, Del Carson Frankie Sue Bell, Tufteland, Chief District Attorney, Deputy James District Lukens, Attorney, County, Clark Attorney, Deputy John Respondent.