STATE of Arkansas v. 26 GAMING MACHINES
03-173
Supreme Court of Arkansas
February 5, 2004
145 S.W.3d 368
Pryor, Robertson & Barry, PLLC, by: C. Brian Meadors, for appellee.
ROBERT L. BROWN, Justice. This is a State appeal from an order of the Sebastian County Circuit Court in which the court found that three countertop Megatouch machines were not gaming devices per se and that the State had failed to provide evidence that the machines actually were used as such. Accordingly, the court refused to forfeit the machines and ordered them returned to their owners. The State argues one point on appeal: that the circuit court‘s refusal to forfeit the three alleged gaming machines was clearly erroneous. We disagree and affirm the circuit court‘s order.
A raft of pleadings, motions, and discovery petitions ensued, and on October 30-31, 2002, the circuit court conducted a non-jury trial. At the trial, Robert Sertell was called as an expert witness for the State. He testified that he was a retired gambling teacher who at the time of trial served as the chairman of Casino Horizons Corporation, a training and consulting firm for the gaming industry as well as law enforcement. He became involved in conducting a gaming-machine investigation in Sebastian County in the summer of 2002 and created a twelve-page report on the various machines seized. He concluded that some of the games offered on the countertop and the free-standing machines were for gambling and some were not. The free-standing machines, according to Mr. Sertell, were designed to look like slot machines, operate like slot machines, sound like slot machines, and payoff in credits or points in almost the same way a slot machine does, with no skill required of the player. Of the 26 machines seized, all 26 required money to play, and some contained ticket dispensers.
Mr. Sertell testified that gambling consists of three elements: consideration, chance, and reward. He said “consideration” means that money must be paid to buy the right to play a game. “Chance” means that the player can do nothing to change or predict the outcome of the game. And “reward” means that the design of the game may entitle the player or winner to become entitled to something of value. All of the machines in question exhibited the element of “consideration,” because they accepted either coin or paper currency. All of the machines involved “chance,” he said, because they contain a random number generator or a reflexive game element. Some of the machines exhibited “reward” in the form of (1) points, which could be used as additional consideration to “buy” additional credits; (2) the ability to play the game without spending more money; or (3) a visual reward from seeing a virtual person take off his or her clothes. Mr. Sertell, however, denied that nudity was the type of reward that qualified as an element of gambling.
The three remaining machines were countertop Megatouch machines, which contained fifty-to-seventy different games, including draw poker, joker poker, and blackjack. These machines did not contain any type of pay out mechanisms such as hoppers or chutes for monetary winnings or pre-printed tickets. Accordingly, the court found that the countertop machines were not gaming devices per se. In making this finding, the court said:
The State argues and it‘s [sic] expert testified that if the machine offers a game of poker and nothing more, it could still be considered a gaming device and subject to seizure and forfeiture. To hold such could, in the Court‘s opinion, subject a personal computer or a child‘s hand held computer game to seizure simply because a poker game may be included in the computer game. There must be more.
The court also found that the State failed to provide any evidence that the countertop machines actually were used as gambling devices. Specifically, the court found that the State had failed to show there was any reward for playing the countertop machines. Accordingly, the court concluded that the three countertop machines were not forfeitable and should be returned to their owners together with any money seized from these three machines, after expiration of the appeal time or the State‘s decision not to appeal.
The State argues as its sole point on appeal that the circuit court‘s refusal to forfeit the three alleged gaming machines was clearly erroneous. The State urges that the machines were seized pursuant to
Alternatively, the State argues that if this court concludes that the machines were not gaming devices per se, the circuit court erred in finding that the machines were not actually used as gaming devices. The State acknowledges that its expert, Mr. Sertell, testified that viewing a nude woman on video strip poker was not a reward for gambling purposes. However, because
Our standard of review is whether the circuit court‘s findings in the bench trial were clearly erroneous. See Sharp v. State, 350 Ark. 529, 88 S.W.3d 848 (2002). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. We review the evidence in the light most favorable to the appellee. Id.
a. Gaming Devices
Our state‘s Gambling Code is found at
Every person who shall set up, keep, or exhibit any gaming table or gambling device, commonly called A.B.C., E.O., roulette, rouge et noir, or any faro bank, or any other gaming table or gambling device, or bank of the like or similar kind, or of any other description although not herein named, be the name or denomination what it may, adapted, devised, or designed for the purpose of playing any game of chance, or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor and on conviction shall be fined in any sum not less than one hundred dollars ($100) and may be imprisoned any length of time not less than thirty (30) days nor more than one (1) year.
b. Gaming Devices per se
This court has examined several cases over the years in which it found that machines were gaming devices per se under the statute. If a machine is found to be a gaming device per se, mere possession of it is punishable under
In a second case, we examined two slot machines, where one was used partly for gambling and partly for amusement and the other was used solely for gambling, after which the patron with the largest score won the game and a prize. See Steed v. State, 189 Ark. 389, 72 S.W.2d 542 (1934). In Steed, we held that the machines were gaming devices based on the description of the machines and based on the fact that the only reasonable and profitable use of the machines was a game of chance. This court has also held that a machine was a gaming device per se even where no prize was
In a fourth case, we examined twenty-seven slot machines that were not actually set up and in use to serve the public. See Bell v. State, supra. In Bell, we said that the statute did not require the machines to be “set up and ready to operate before they may be seized and destroyed.... [T]he keeping of these machines is made a misdemeanor, and their possession, at any place in this state, is outlawed.” 212 Ark. at 338, 205 S.W.2d at 715.
More recently, this court held that a telephone-card vending machine, which allowed the patron to redeem points with the value of one penny per point or to play a game for the chance to win additional money, was a gaming device “designed for the purpose of playing a game of chance at which any money or property may be won or lost.” Pre-Paid Solutions v. City of Little Rock, 343 Ark. 317, 323, 34 S.W.3d 360, 363 (2001). We held that it was of no consequence that the patrons could play the game without making a purchase. And in Sharp v. State, supra, this court held that machines dedicated solely to video poker and video slot machines were gaming devices subject to destruction, because the reason to play the machines was to play a game of chance in which the player won or lost credits. The element of chance was between the player and the business, and the player could obtain more credits with a good hand of poker and could exchange his or her credits for a prize.
c. Amusement Devices
A separate section of the Arkansas Code regulates amusement devices. See
(1) “Amusement devices” means any coin-operated machine, device, or apparatus which provides amusement, diversion, or entertainment and includes, but is not limited to, such games as radio rifles, miniature football, golf, baseball, hockey, bumper pool,
tennis, shooting galleries, pool tables, bowling, shuffleboard, pinball tables, marble tables, music vending phonographs, jukeboxes, cranes, video games, claw machines, bowling machines, countertop machines, novelty arcade machines, other similar musical devices for entertainment, and other miniature games, whether or not such machines show a score, and which are not otherwise excluded in this subchapter[.]
The first issue for this court to resolve is whether the three Megatouch countertop machines are gaming devices per se. We conclude that they are not. The circuit court, in its order found that these countertop machines “contain anywhere from 50 to 70 different games.” Among those games are draw poker, joker poker, and blackjack, according to the court. The court further found that these machines “do not have any type of pay out mechanisms;” nor are there “hoppers or chutes for monetary winnings.” Based on these findings, we disagree with the State‘s position that these are machines “adapted, devised, or designed for the purpose of playing any game of chance,” as
In addition, countertop machines are specifically listed as amusement devices under
d. Actual Use
The State also challenges the circuit court‘s finding based on the fact that the three Megatouch countertop machines are actually used for gambling. This court has examined several cases in which it has found that machines, as actually operated, were gaming devices. In an early example, we held that dice and a cloth pinned to the ground were gaming devices, when used for the purpose of “shooting craps.” See Johnson v. State, 101 Ark. 159, 141 S.W. 493 (1911). We said:
[t]he instrumentality or structure which is furnished, by which the game is played, is not material. Any instrumentality by means of which the chance or skill, or both combined, are developed may constitute a gambling device. The gambling device may consist of dice and the throwing thereof. If the instrumentality is adapted and designed for the purpose of playing a game of chance for money or property, and is so used, then it constitutes such a device which comes within the prohibition of this section of the statute against gaming.
Johnson v. State, 101 Ark. at 163, 141 S.W. at 495.
Along the same line, in 1943, this court found that two teletype machines were gaming devices, as operated, because the owner intentionally converted these teletype machines to an unlawful use and purpose by betting on horse races, where money could be won or lost. See Albright v. Muncrief, 206 Ark. 319, 176 S.W.2d 426 (1943). In that case, the owner of the machines received information about upcoming horse races, which he then
the evil effects flowing from the use of instrumentalities designed for lawful use, when put to an unlawful use, would be just as great as when such machines were designed for unlawful purposes. Our lawmakers have gone far in their attempt to suppress the gambling evil and in so doing have given our enforcement officers authority to destroy the tools by the use of which gambling is carried on.
Albright, 206 Ark. at 326, 176 S.W.2d at 430. This court has also examined a pinball machine that allowed the player to accumulate free games. See Bostic v. City of Little Rock, 241 Ark. 671, 409 S.W.2d 825 (1966). In Bostic, the pinball machine was a gaming device, as operated, because the owner paid winners one nickel for every free game won. We said that merely setting up a machine that gives free games is not considered gambling, but when the free games won on the machine were converted to cash by the owner, the machine clearly became a gaming device.
In the case specifically relied on by the circuit court in its decision, this court held that evidence presented at trial was insufficient to conclude that machines were gaming devices. See Burnside v. State, supra. In Burnside, the State seized a tape recorder, a ticker or teletype machine, and a radio transmitter. This court held, however, that there was no showing that the equipment was ever used as gaming devices, and the owner of such equipment did not violate Arkansas’ gambling laws. See also Blankenship v. State, 258 Ark. 535, 527 S.W.2d 636 (1975) (a ledger, three sheets of yellow paper with tickets wrapped inside them, a cigar box containing tickets, three sheets of yellow notebook paper, newspapers containing current racing forms, telephones, some yellow legal pads, and some checks were not found to be gaming devices, because there was no proof that the owner ever made a specific bet).
In the case at hand, the State argued that the circuit court erroneously found that the Megatouch countertop machines were not gaming devices, as operated. We disagree. Mr. Sertell testified for the State that the act of gambling required the elements of consideration, chance, and a reward. No tokens, money, or prizes were offered in connection with these machines. However, the State now argues that the reward offered in connection with a
Affirmed.
DICKEY, C.J., not participating.
GLAZE and THORNTON, JJ., dissent.
RAY THORNTON, Justice, dissenting. I respectfully dissent from the majority‘s holding that a device that offers video-poker for a fee is not a per se gambling device.
The majority correctly cites the applicable Arkansas gaming laws at
It is of little consequence that the machines have the software for a greater number of games as well as video poker. Under the majority‘s reasoning, the owner of machines prohibited in Sharpe, supra, could avoid penalty of law for possessing a gambling device by surrounding the offending games of chance, such as video-poker or slot machines, with a plethora of other games characterized as amusement devices. This defeats the purpose of
For these reasons, I respectfully dissent from the majority‘s opinion.
I am authorized to state that Justice GLAZE joins in this dissent.