State v. Spruill and Chapman ( 2014 )

NO. COA14-369
NORTH CAROLINA COURT OF APPEALS
Filed: 18 November 2014
STATE OF NORTH CAROLINA
v. Edgecombe County
Nos. 13 CRS 51229—30
KAWANA SPRUILL and RICHARD CONOLEY
CHAPMAN
Appeal by defendants from judgments entered 18 December
2013 by Judge Walter H. Godwin, Jr., in Edgecombe County
Superior Court. Heard in the Court of Appeals 9 September 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General David J. Adinolfi II, for the State.
Smith, James, Rowlett & Cohen, LLP, by Seth R. Cohen, for
defendant-appellants.
BRYANT, Judge.
Because the jury was presented with substantial evidence of
each essential element of the charge that defendants operated or
placed into operation an electronic machine to conduct a
sweepstakes through the use of an entertaining display,
including the entry process or the “reveal” of a prize, we
affirm the trial court’s denial of defendants’ motion to dismiss
and find no error in the judgment of the trial court.
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On 23 April 2013, a magistrate in Edgecombe County issued
arrest warrants for defendants Kawana Spruill and Richard
Conoley Chapman on the charge of violating North Carolina
General Statutes, section 14-306.4 (“Electronic machines and
devices for sweepstakes prohibited”). The matter came on for
trial before a jury in Edgecombe County Superior Court on 17
December 2013, the Honorable Walter H. Godwin, Jr., Judge
presiding.
The evidence presented at trial tended to show that
defendant Chapman was the owner of Past Times Business Center
(“Past Times”), an internet café, located at 2100 St. Andrews
Street, Tabor City, and defendant Spruill was the manager. An
undercover officer with the Tabor City Police Department went to
Past Times to determine if the café was operating an electronic
sweepstakes in violation of N.C. Gen. Stat. 14-306.4. The
undercover officer testified that he went to Past Times on 11
April 2013, equipped with a surveillance camera. The
surveillance video was played for the jury while the officer
narrated. The officer presented the cashier with $25.00. The
cashier presented the officer with a disclaimer which states, in
part:
I understand that I am purchasing computer
time to be used at this location. I also
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realize that I can request to participate in
the promotional game for free. . . .
. . .
I understand that I am not gambling. I am
playing a promotional game in which the
winners are predetermined. The games have
no effect on the outcome of the prizes won.
The undercover officer played internet games with the names
“Keno,” “Lucky’s Loot,” Lucky’s Loot bonus round named “Pot
O’Gold,” “Lucky Sevens,” “Lucky Ducks,” and “Lucky Lamb.” The
undercover officer testified that his understanding was “[y]ou
cannot win any more money than what it says you're already going
to win before the game starts. So it's irrelevant what you click
on.” The lead investigator, Detective Sergeant Bruce Edwards,
testified that Past Times’ electronic games used a pre-reveal
system. The pre-reveal system showed the prize amount the
patron would win prior to the patron playing a game. Once the
game was completed, the prize amount revealed prior to the start
of the game would be displayed again. Kevin Morse, a
representative from the video game manufacturer Figure Eight,
testified that the software used to make the electronic games
available in Past Times was developed and controlled by Figure
Eight and that Past Time paid a user licensing fee to access the
games via the internet. Morse distinguished a “true
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sweepstakes,” where the prize is revealed after the game is
completed, from the electronic games used in Past Times, where
the prize is revealed before a game is played. At Past Times,
the patron has the option of whether to play the game after the
prize has been revealed. If the patron does not timely choose
to play a game, the system prompts the next reveal opportunity.
At the close of the evidence, the jury returned verdicts
against Chapman and Spruill finding each “[g]uilty of operating
or placing into operation an electronic machine or device for
the purpose of conducting a sweepstakes through the use of an
entertaining display, including the entry process or the
revealing of a prize[.]” The trial court entered judgment in
accordance with the jury verdicts. Spruill was sentenced to an
active term of 45 days. The sentence was suspended, and she was
placed on unsupervised probation for a period of 12 months.
Chapman was also sentenced to an active term of 45 days. This
sentence was suspended, and he was placed on unsupervised
probation for a period of 36 months. Both defendants appeal.
____________________________________
On appeal, defendants argue the trial court erred in
denying their motion to dismiss. Defendants contend that there
was not substantial evidence they conducted a sweepstakes
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through the use of an entertaining display, including the entry
process or the revealing of a prize in violation of N.C. Gen.
Stat. § 14-306.4. We disagree.
“We review denial of a motion to dismiss criminal charges
de novo, to determine whether there is substantial evidence (1)
of each essential element of the offense charged, or of a lesser
offense included therein, and (2) of defendant's being the
perpetrator of such offense.” State v. Mobley, 206 N.C. App.
285, 291, 696 S.E.2d 862, 866 (2010) (citation and quotations
omitted). “[T]he trial court must analyze the evidence in the
light most favorable to the State and give the State the benefit
of every reasonable inference from the evidence. . . . The
trial court does not weigh the evidence, consider evidence
unfavorable to the State, or determine any witness'
credibility.” State v. Trogdon, 216 N.C. App. 15, 25, 715
S.E.2d 635, 641 (2011) (citations and quotations omitted).
Pursuant to North Carolina General Statutes, section 14-
306.4,
it shall be unlawful for any person to
operate, or place into operation, an
electronic machine or device to do either of
the following:
(1) Conduct a sweepstakes through the
use of an entertaining display,
including the entry process or the
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reveal of a prize.
(2) Promote a sweepstakes that is
conducted through the use of an
entertaining display, including the
entry process or the reveal of a prize.
N.C. Gen. Stat. § 14-306.4(b) (2013). “Entertaining display” is
defined as “visual information, capable of being seen by a
sweepstakes entrant, that takes the form of actual game play, or
simulated game play . . . .” Id. § 14-306.4(a)(3). An
entertaining display can be “[a]ny [] video game not dependent
on skill or dexterity that is played while revealing a prize as
the result of an entry into a sweepstakes.” Id. § 14-
306.4(a)(3)(i). “Sweepstakes” is defined as “any game,
advertising scheme or plan, or other promotion, which, with or
without payment of any consideration, a person may enter to win
or become eligible to receive any prize, the determination of
which is based upon chance.” Id. § 14-306.4(a)(5).
Defendants contend that because the prize is revealed to
the patron prior to any opportunity to play a game, they have
not run afoul of the plain meaning of N.C.G.S. § 14-306.4.
Previously, games were used to reveal the sweepstakes prize.
But, according to Figure Eight representative Morse, the
software accessible from Past Times was changed to incorporate
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the pre-reveal feature, specifically, to operate in compliance
with N.C.G.S. § 14-306.4.
[N]o sooner is a lottery defined, and
the definition applied to a given state of
facts, than ingenuity is at work to evolve
some scheme of evasion which is within the
mischief, but not quite within the letter of
the definition. But, in this way, it is not
possible to escape the law's condemnation,
for it will strip the transaction of all its
thin and false apparel and consider it in
its very nakedness. It will look to the
substance and not to the form of it, in
order to disclose its real elements and the
pernicious tendencies which the law is
seeking to prevent. The Court will inquire,
not into the name, but into the game,
however skillfully disguised, in order to
ascertain if it is prohibited[.] It is the
one playing at the game who is influenced by
the hope enticingly held out, which is often
false or disappointing, that he will,
perhaps and by good luck, get something for
nothing, or a great deal for a very little
outlay. This is the lure that draws the
credulous and unsuspecting into the
deceptive scheme, and it is what the law
denounces as wrong and demoralizing.
Hest Technologies, Inc. v. State ex rel. Perdue, 366 N.C. 289,
289—90, 749 S.E.2d 429, 430—31 (2012) (citing State v. Lipkin,
169 N.C. 265, 271, 84 S.E. 340, 343 (1915)), cert. denied, ___
U.S. ___, ___ L. Ed. 2d ___ (2013).
It is undisputed that with the use of computers accessing
the internet, defendants operated a sweepstakes wherein a prize
was revealed to a patron not dependent upon the patron’s skill
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or dexterity in playing a video game. See N.C.G.S. § 14-
306.4(a)(3)(i). That the video game did not have to be played
or played to completion is not determinative. Defendants appear
to define “game” only as that interaction between patron and
computer which occurs after the sweepstakes prize has been
revealed and the patron presses the “game” button. We disagree.
Under the pre-reveal format, entry and participation in the
sweepstakes, through the pre-reveal, is a prerequisite to
playing a video game. Thus, the sweepstakes takes place during
the initial stages of any game played. That the sweepstakes is
conducted at the beginning of a game versus its conclusion makes
no significant difference: the sweepstakes prize is not
dependent upon the skill or dexterity of the patron; it is a
game of chance. And, in conjunction, the electronic video game
is a display which entices the patron to play.
Section 14-306.4 seeks to prevent the use of entertaining
displays in the form of video games to conduct sweepstakes
wherein the prize is determined by chance. See id. § 14-
306.4(b)(1). Therefore, when viewed in the light most favorable
to the State, it is clear that the jury was presented with
substantial evidence of each essential element of the charge
that defendants operated or placed into operation an electronic
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machine to conduct a sweepstakes through the use of an
entertaining display, including the entry process or the reveal
of a prize. See id.; see also Trogdon, 216 N.C. App. at 25, 715
S.E.2d at 641. Therefore, we affirm the trial court’s denial of
defendants’ motion to dismiss the charge and find no error in
the judgment of the trial court. Mobley, 206 N.C. App. at 291,
696 S.E.2d at 866. Accordingly, defendant’s argument is
overruled.
No error.
Chief Judge McGEE and Judge STROUD concur.