Town of Mount Pleasant v. Chimento , 401 S.C. 522 ( 2012 )

Justice PLEICONES.

Respondents were convicted in municipal court of violating S.C.Code Ann. § 16-19-40(a) (2008) which makes it unlawful to “play ... in any house used as a place of gaming ... any game with cards .... ” after they were found playing Texas Hold’em and gambling in a residence leased by Nathan Stallings.¹ On appeal, the circuit court reversed respondents’ convictions finding they were entitled to directed verdicts or, alternatively, that § 16 — 19—40(a) is unconstitutional. We reverse.

FACTS

Stallings leased a home in Mt. Pleasant where he lived with his fiancé and a roommate. He used an internet social networking site² to meet other poker players, and established a regular Sunday night game at his home. He added a regular Wednesday night game after another friend³ could no longer host those games. People Stallings “met” on this site and their friends were welcome at the games.

Stallings testified that players would buy in to the game for a minimum of $5 and a maximum of $20. They could purchase more chips as needed. Stallings took a “rake” out of the pot in an amount sufficient to cover the cost of the food and drink he provided. If the rake did not cover his expenses, then others (most often the night’s winners) would contribute money.

The municipal judge found, based on expert testimony presented by the respondents, that Texas Hold’em is a game of skill. The municipal judge also held that if a game of skill were without the ambit of gaming, then he would acquit the respondents, but that there was no clear indication whether the legislature intended to criminalize only gambling on games of chance. At the hearing, the municipal judge declined to find § 16-19-40 unconstitutional. The circuit court reversed, and the Town appeals that order.

Before this Court, as they did before the lower courts, respondents freely admit they were playing Texas Hold’em, a card game, and do not deny they were betting on this game. All parties agree that the term “gaming” as used in § 16 — 19— 40 is synonymous with gambling.

ISSUES

1) Whether respondents were entitled to directed verdicts because betting money on a game of skill at a residence is not prohibited by § 16-19^40?

2) If respondents are not entitled to directed verdicts, should their convictions have been set aside because § 16-liM0(a) is unconstitutional?

ANALYSIS

A. Directed Verdict

The circuit court held that respondents were entitled to directed verdicts because it is not unlawful to gamble on a game of skill in a residence. We disagree.

Section 16-19-40 is the “modern” version of a statute first enacted in 1802. In its present form, it reads:

§ 16-19-40. Unlawful games and betting.

If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open space at (a) any game with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.

Subsection (g) referencing video games was added in 1999. Prior to that amendment, the statute was last amended in 1909 when the penalty section was changed.⁴ The only other major substantive alteration occurred in 1816, and is discussed in more detail infra.

The statute, with its modern punctuation, provides:

(1) Any person who plays or shall bet on the sides or hands of such as do game at any

• tavern

• inn

• store for the retailing of spirituous liquors

• house used as a place of gaming

• barn

• kitchen

• stable

• other outhouse

• street

• highway

• open wood

• race field

• open place

(2) at

a) any game with cards or dice

b) 1. any gaming table, commonly called A, B, C, or E, 0 2. any other gaming table known or distinguished by any other letters or by any figures

c) any roley-poley table

d) rouge et noir

e) any faro bank

f) any other table or bank of the same or like kind under any denomination whatsoever or

g) any licensed gambling machine or device

except at

• billiards

• bowls

• backgammon

• chess

• draughts or

• whist when there is no betting on any such game of billiards through whist

(3) shall be guilty

and

(4) every person so keeping such

• tavern

• inn

• retail store

• public place or

• house used as a place for gaming or

• such other house

(5) shall be guilty.

The statute’s preamble indicates that as originally enacted, the legislation was designed to prohibit gambling in public places:

No. 1786. AN ADDITIONAL ACT for the more effectual prevention of gaming.

1802 S.C. Acts No. 1786.

1. Residence as Place of Gaming

The circuit court agreed with respondents that a residence could not qualify as a “house used as a place of gaming” under § 16-19-40. We disagree.

In 1806, a defendant was convicted of violating the statute after he was indicted for permitting and encouraging persons to play at prohibited games in his dwelling house. On appeal, the sufficiency of the indictment was challenged on the ground the statute did not use the words “permit and encourage,” nor did the indictment allege that the defendant kept his dwelling for gaming purposes or that he allowed gambling on the premises. The appeal was affirmed without a full opinion, but Justice Brevard dissented. It appears that all members of the Court were in agreement that a dwelling house could qualify as a “place kept to accommodate gamesters,” with Justice Brevard expressing his opinion in dicta that the legislature could not have intended the statute to apply to “a casual game being played in a man’s home.” State v. Brice, 4 S.C.L. (2 Brev.) 66 (1806). Thus, a residence used as a place for gambling could be a “public house” under the original language of the statute.

In 1816, the gaming statute was amended to “more effectively ... prevent the pernicious practice of gaming” by adding to the places where the playing of the games and/or gambling were prohibited. Specifically, after the term “store for the retailing [of] spirituous liquors,” the phrase “or in any other public house” was stricken and the phrase “or in any house used as a place of gaming, or in any barn, kitchen, stable or other outhouse” substituted. 1816 S.C. Acts No. 2096 p. 26.

In 1823, the Court explained that the legislature’s intent in adopting this 1816 amendment was to ensure that gaming in buildings separate from, even if attached to, the “principal or mansion house” were covered by the statute. State v. Faulkener, 13 S.C.L. (2 McCord) 438 (1823). A residence could qualify as a prohibited place under the 1802 version of the statute, Brice, supra, and the 1816 amendment preserved the inclusion of a residence or “mansion-house” as a prohibited location while expanding the definition to include outbuildings typically found on residential property. Faulkener, supra.

In addition to expanding the list of prohibited places, there was another consequence of the 1816 amendment. By altering the prohibition on playing prohibited games from “public house” to “house used as a place of gaming,” the legislature effectively adopted the view of Justice Brevard in his Brice dissent. What was originally a ban on merely playing these games “in a public house” became a ban on playing on these games in a residence or mansion house only when that house was “used as a place of gaming.” Thus, individuals gambling on a casual game in a person’s home were no longer subject to prosecution under this statute.

If, however, a dwelling house is being used “as a place of gaming,” then all those playing the game, whether or not they are betting on it, and those present and betting, even if not playing, are guilty of violating § 16-19-40. To the extent that respondents argue that a residence or dwelling cannot be a house within the meaning of this statute, their contention is refuted by Faulkener, supra, and the plain language of the statute.

Given that the parties agree that gaming and gambling are synonyms, then Stallings’s house was undeniably being used for gambling on the night of the raid. Moreover, there was sufficient evidence to withstand a directed verdict motion in light of Stallings’s own testimony regarding the regular Sunday/Wednesday games that his dwelling was “a house used as a place of gaming.” See State v. Lane, 82 S.C. 144, 63 S.E. 612 (1909) (State need not prove by direct evidence that gambling took place on more than one occasion to prove a house is a “gambling den”).

2. Gambling

The circuit court, however, adopted the so-called “American Rule” or “dominant factor doctrine,” holding that “gaming” as used in § 16-19-40 applies only to betting on games of chance, and not to betting on games where skill, rather than chance, is the predominant factor. In so doing, the court relied primarily on cases deciding whether a particular scheme was a lottery. E.g., Johnson v. Phinney, 218 F.2d 303 (5th Cir. 1955); Opinion of the Justices, 795 So.2d 630 (Ala.2001); Morrow v. State, 511 P.2d 127 (Alaska 1973).⁵ Reliance on the “American Rule” and lottery cases is misplaced, however, as § 16-19-40 criminalizes the playing of certain games and gambling, not a lottery. Compare § 16-19-30 (2003) (making it unlawful to sell lottery tickets).

In South Carolina, a lottery is a specific form of gambling, one “in which a large number of tickets are sold and a drawing is held for certain prizes.” Johnson v. Collins Entertainment Co., Inc., 338 S.C. 96, 508 S.E.2d 575 (1998). In Collins, the dissenters would have adopted a much broader definition of lottery, and thus would have reached the issue of the role of “chance versus skill” in determining whether a particular scheme was a lottery. The Collins dissenters would have held that the “American Rule” applied to distinguish lotteries from non-prohibited games. The fact that most courts hold that a scheme is not a lottery if skill rather than chance predominates does not resolve the question whether, in South Carolina, betting on a card game in which skill rather than chance is the dominant factor is unlawful gaming. Compare § 16-19-30 (criminalizing lotteries) with § 16-19 — 40 (criminalizing gaming).

Under the plain language of § 16-19-40, gambling on a game of skill is a violation if that gambling is being done in a prohibited location. The statute specifically lists several games that are exempt from the absolute ban on playing games in prohibited locations: billiards, bowls, backgammon, chess, draughts, and whist. These games all involve skill, yet betting on these games is a crime under the statute. § 16 — 19— 40; see State v. Yoe, 76 S.C. 46, 56 S.E. 542 (1907) (statute made it unlawful to play certain games without respect to whether there is betting or not, but other games (i.e. billiards, etc.) are unlawful at those places only if bet upon); cf. State v. Robinson, 40 S.C. 553, 18 S.E. 891 (1894) (no error in defining gambling in jury instruction by charging not a crime to throw dice unless betting is involved). A violation of the gaming prohibition of § 16-19-40 does not depend on whether the particular game involves more skill than chance.

The statutory meaning of the word “gambling” in South Carolina includes games in which skill outweighs chance. For example, S.C.Code Ann. § 32-1-10 (2007), found in an article captioned “Gambling Contracts,” permits persons who have lost money or other thing(s) of value in an amount equal to at least $50 at cards, at a dice table, or “at any other game whatsoever,” or by betting on those games, to recover their losses under certain circumstances. The plaintiffs in such a suit are almost uniformly referred to as “gamblers” regardless whether the enterprise was unlawful. See Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993). Gambling as defined in South Carolina includes betting money on the outcome of any “game” whatsoever, regardless of the amount of skill involved in the game. § 32-1-10.

Finally, there is precedent that indicates § 16-19-40 is concerned with wagering regardless of the skill involved in the game wagered upon. In State v. Red, 41 S.C.L. (7 Rich.) 8 (1853), the court rejected appellant’s argument that his conduct in running a betting game of “Thimble” or “Thimbles and Balls” was not within § 16-19^40 because he was a “juggler” and his “game” was an exhibition of his dexterity. The Court held appellant’s conduct was within the statute’s terms “because he kept a bank, and a wager depended on his success or failure.” The opinion concluded:

If the prohibited games be confined to those alone in which the stake is won or lost by chance, the result would follow, that the gambler who relied on the practiced legerdemain of a juggler, whilst he professed that the stake depended on fortune, will escape punishment by playing falsely.

In other words, gambling/gaming depends not on the skill/ chance ratio, but on the wager.

We hold that one “games” within the meaning of § 16-19-40 when money is wagered on Texas Hold’em, even though it is a game in which skill predominates. See Atchison v. Gee, 15 S.C.L. (4 McCord) 211 (1827) (betting on horse racing is gaming); State v. O’Neal, 210 S.C. 305, 42 S.E.2d 523 (1947) (poker is gaming); State v. White, 218 S.C. 130, 61 S.E.2d 754 (1950) (room where poker played for money is gambling room); cf. Allendale County Sheriff’s Office v. Two Chess Challenge II, 361 S.C. 581, 606 S.E.2d 471 (2004) (video game in which player’s skill could alter outcome not a “game of chance” within the meaning of that term in § 12-21-2712).

Whether an activity is gaming/gambling is not dependent upon the relative roles of chance and skill, but whether there is money or something of value wagered on the game’s outcome. The circuit court erred in holding that respondents were entitled to directed verdicts because they were not gaming within the meaning of § 16-19-40.

B. Constitutionality

The circuit court held that if respondents were not entitled to directed verdicts, their convictions must be set aside because § 16-19-40 was either unconstitutionally overbroad or void for vagueness. We disagree.

The circuit court held § 16-19-40(a) was unconstitutionally overbroad because it criminalizes all games played with cards or dice “regardless of whether the dominant factor in a particular game is skill or chance.” The judge cited Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), for the proposition that a legislative enactment which “makes criminal activities which by modern standards are normally innocent” is overbroad. In Papachristou, the United States Supreme Court struck down an archaic vagrancy ordinance because it was void for vagueness, and thus offended due process, and not because it was overbroad. Overbreadth is a challenge predicated on the First Amendment, and cannot be used except where the statute arguably suppresses protected speech or conduct. State v. Neuman, 384 S.C. 395, 683 S.E.2d 268 (2009). Section 16-19^40 does not offend the First Amendment.

The circuit court also held that § 16-19^40(a) is void for vagueness because it provides no definition of the term “house used as a place of gaming.” As the parties concede, gaming and gambling are synonymous. The term of art “house used as a place of gaming” is meant to distinguish the prohibited place from “a house where people are gaming.” As the Court said in 1909, the evidence of keeping a gaming house is determined by the facts and circumstances. State v. Lane, supra. In deciding a void-for-vagueness challenge to a statute, the Court must look first to see whether the allegedly unconstitutional statute has been interpreted or limited by prior judicial decisions. Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), citing Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Here, we have our earlier decisions in State v. Brice, supra; State v. Faulkener, supra; State v. Lane, supra; see also Stardancer Casino, Inc. v. Stewart, 347 S.C. 377, 556 S.E.2d 357 (2001) (boat not a public place within meaning of § 16-19-40), all interpreting the statute’s allegedly vague terms. Even if we had not heretofore construed the statute so as to answer respondents’ vagueness challenge, we could do so here and uphold their convictions. See, e.g., State v. Watkins, 262 S.C. 178, 203 S.E.2d 429 (1973) (construing obscenity statute on remand from the United States Supreme Court and affirming conviction). The circuit court erred in finding § 16-19^10(a) unconstitutionally vague.⁶

Moreover, the evidence showed that Stallings’s house was used regularly twice a week for poker games at which there was gambling, and that the games were advertised to interested persons on the website, and open to those individuals and their friends.

One whose conduct clearly falls within the statutory proscription does not have standing to raise a void-for-vagueness challenge. E.g., State v. Neuman, supra. We find respondents lack standing to challenge § 16-19-40,⁷ but also note that a person of reasonable intelligence would understand the statute to prohibit gambling on a card game at a house where players were invited on a regular basis to engage in this activity, especially where, while not a profit-making commercial activity, the players were required to contribute money to cover the host’s expenses.

CONCLUSION

We find that the circuit court erred in reversing respondents’ convictions, and therefore the order on appeal is itself

REVERSED.

BEATTY, J., concurs. TOAL, C. J., concurring in a separate opinion. HEARN, J., dissenting in a separate opinion in which KITTREDGE, J., concurs.

1 . Stallings pled guilty to keeping a house used as a place of gaming in violation of § 16-19-40 in a separate proceeding.

2 . Identified as charlestonpokermeetups.com in the transcript.

3 . Respondent John Willis.

4 . 1909 S.C. Acts No. 43, § 1 p. 66.

5 . Other cases relied upon by respondents are also easily distinguishable. E.g., People v. Hua, 24 Misc.3d 1142, 885 N.Y.S.2d 380 (N.Y.Crim.Ct.2009) (relying on statutory definition); Town of Centerville v. Burns, 174 Tenn. 435, 126 S.W.2d 322 (1939) (British Rule rather than American Rule). Respondents also cite five cases in brief for the proposition that the test for "gambling” is the American Rule. None of the five cases actually hold this. Indoor Rec. Enterprises, Inc. v. Douglas, 194 Neb. 715, 235 N.W.2d 398 (1975) (statute and constitution prohibited gambling on games of chance); In re Allen, 59 Cal.2d 5, 27 Cal.Rptr. 168, 377 P.2d 280 (1962) (ordinance prohibited betting on game of chance); Las Vegas Hacienda, Inc. v. Gibson, 77 Nev. 25, 359 P.2d 85 (1961) (offering a prize for winning a contest is not gambling); State v. Stroupe, 238 N.C. 34, 76 S.E.2d 313 (1953) (statute defines gambling as betting on a game of chance); D’Orio v. Startup Candy Co., 266 P. 1037 (Utah 1928) (statute/constitution prohibit lotteries, games of chance, and gift enterprises); and Harris v. Missouri Gaming Comm'n, 869 S.W.2d 58 (Mo.1994) (lotteries forbidden).

6 . Both the circuit judge and the dissent rely upon the arresting officer’s testimony as proof of the statute’s vagueness. A statute's constitutionality is judged on an objective, not subjective, basis. E.g., City of Greenville v. Bane, 390 S.C. 303, 308, 702 S.E.2d 112, 114 (2010) (issues are whether the statute’s terms are "sufficiently defined to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise Judge and jury of standards for the determination of guilt"). Moreover, in many cases, it is "up to the police ... to determine just where [a statutory] line is drawn,” for example, where the issue is obscenity, loitering, disturbing the peace, or driving under the influence. The fact that an officer must make a judgment call does not render a statute unconstitutionally vague, any more than does the fact that a determination of guilt ultimately turns on the evidence (i.e., facts and circumstances) adduced at trial.

7 . "The constitutionality of a statute must be considered in light of the standing of the party who seeks to raise the question and of its particular application____” Schneider v. State, 255 S.C. 594, 596, 180 S.E.2d 340, 341 (1971) (internal citation omitted). Standing is not a separate issue when the constitutionality of a statute is challenged under the due process clause, but is instead the foundation of the inquiry. Since the trial court admittedly ruled on § 16-19-40’s constitutionality, it necessarily did so in light of respondents’ standing. Schneider, supra. Lack of standing ends the inquiry into a criminal statute’s vagueness. E.g., United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).